Citation Nr: 1609720 Decision Date: 03/10/16 Archive Date: 03/22/16 DOCKET NO. 07-34 763A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for an acquired psychiatric disability other than post-traumatic stress disorder (PTSD). 2. Entitlement to service connection for an acquired psychiatric disability other than PTSD. 3. Entitlement to service connection for PTSD. 4. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for bilateral pes planus. 5. Entitlement to service connection for bilateral foot disorder, status post removal of ganglion cysts. 6. Entitlement to service connection for right knee disorder. 7. Entitlement to service connection for left knee disorder. REPRESENTATION Veteran represented by: Daniel G. Krasnegor, Attorney ATTORNEY FOR THE BOARD S. Sorathia, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1984 to March 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. A November 2013 Board decision, in pertinent part, denied service connection for PTSD and determined that new and material evidence had not been received to reopen the service connection claim for an acquired psychiatric disorder other than PTSD. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). Pursuant to an August 2014 joint motion for partial remand (JMR), the Court vacated the Board's decision in pertinent part and remanded the matter for compliance with the terms of the JMR. One issue raised in the August 2014 JMR is that it was unclear whether DAV or the Veteran's private attorney was the appropriate representative regarding his service connection claim for psychiatric disability. Pursuant to the August 2014 JMR, the Veteran submitted a signed and dated VA 21-22a that appoints Daniel G. Krasnegor as his attorney on these matters. In pertinent part, a March 2010 Board decision determined that new and material evidence had not been received to reopen the service connection claim for bilateral pes planus and denied service connection for bilateral foot disorder, right knee disorder, and left knee disorder. The Veteran appealed the March 2010 Board decision to the Court. An October 2011 memorandum decision set aside and remanded these issues to the Board. In July 2012, the Board remanded the issues of whether new and material evidence had been received to reopen the service connection claim for bilateral pes planus, as well as the service connection claims for bilateral foot disorder, right knee disorder, and left knee disorder. The November 2013 Board decision, in pertinent part, remanded the service connection claims for bilateral foot disorder, right knee disorder, and left knee disorder, as well as the issue of whether new and material evidence had been received to reopen the service connection claim for bilateral pes planus. The August 2014 JMR of the November 2013 Board decision did not impact these claims. It appears that upon remand, the RO obtained September 2014 VA medical opinions regarding these issues. However, the RO has not issued a supplemental statement of the case and it does not appear that these issues have been recertified to the Board. Thus, the RO should complete development of the claims and recertify the remaining claims to the Board. The issues of entitlement to service connection for an acquired psychiatric disorder, to include PTSD, are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDINGS OF FACT 1. In January 2006, the Board determined that new and material evidence had not been submitted to reopen a claim for a psychiatric disorder; the decision is final. 2. Additional evidence received since the Board's January 2006 decision is not duplicative or cumulative of evidence previously of record and raises a reasonable possibility of substantiating the service connection claim for an acquired psychiatric disorder. CONCLUSIONS OF LAW 1. The January 2006 Board decision is final. 38 U.S.C.A. § 7103(a) (West 2014); 38 C.F.R. § 20.1100 (2015). 2. Evidence received since the January 2006 Board decision is new and material; the claim is reopened. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C.A. § 5108 (West 2014); see Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2015). In determining if new and material evidence has been submitted, the evidence is generally presumed to be credible. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). All of the evidence received since the last final disallowance shall be considered in making the determination. See Evans v. Brown, 9 Vet. App. 273, 283 (1996). The January 2006 Board decision found that a February 2002 rating decision which denied service connection for a psychiatric disorder was final. The January 2006 Board decision did not reopen the service connection claim on the basis that the newly submitted evidence, which included VA and private treatment records, did not relate the Veteran's diagnosed psychiatric disorders to service. The January 2006 Board decision also determined that newly submitted lay statements from the Veteran and the Veteran's mother contending that his psychiatric disorder first manifested in service did not constitute new and material evidence. The Board concluded that the Veteran was not competent to relate his psychiatric disorder to service. Moreover, the Board found that although the mother stated that she has medical training, it was not clear to the Board at that time what that training might include. The Board found that new and material evidence had not been submitted to reopen the service connection claim for psychiatric disorder; this decision is final. Since that time, the Veteran's mother submitted statements, including a March 2015 statement. She stated that she was a registered nurse and that part of her medical training specifically included a section regarding mental health conditions. She stated that as his mother, she observed the Veteran prior to service, during service, and after service. She further stated that she noticed a difference in the Veteran's behavior after he was transferred to Ft. Bragg. She stated that the Veteran called her during service and told her that he was being harassed. He reported to her that there was an incident with a superior officer and that he was sent to anger management classes. She stated that she reviewed her son's personnel records and that the notations of discipline in his personnel records mirrored the complaints of harassment the Veteran shared with her during service. She concluded that in her medical opinion, the Veteran's current mental health condition is the same condition that she witnessed during the end of his military service and that his mental health problems began in service as a result of harassment. The Board finds this statement to constitute new and material evidence. The statement is new as it is dated after the January 2006 Board decision. The mother's statement is material as she states that it is her medical opinion as a registered nurse that the Veteran's current psychiatric condition is related to service. See Goss v. Brown, 9 Vet. App. 109-114,15 (1996); Williams v. Brown, 4 Vet. App. 270, 273 (1993). Moreover, the statement specifically states that she observed behavioral changes once the Veteran was transferred to Ft. Bragg. In light of Shade, this statement is not duplicative of statements previously submitted as it provides specific information regarding the mother's medical qualifications in support of her statement that his current psychiatric problems are related to service. The statement also provides more detail regarding the behavioral changes that she observed during service. Shade v. Shinseki, 24 Vet. App. 110, 121 (2010); Justus v. Principi, 3 Vet. App. 510, 513 (1992). As such, this statement is not duplicative of the record prior to the January 2006 Board decision as the March 2015 statement submitted by the Veteran's mother constitutes a medical opinion as she is a health care professional. See Goss, 9 Vet. App. at 114-15; Williams, 4 Vet. App. at 273. New and material evidence has been received to reopen the service connection claim for psychiatric disorder. ORDER New and material evidence has been received to reopen the claim of entitlement to service connection for an acquired psychiatric disability other than PTSD; to this extent only, the claim is granted. REMAND The Veteran contends that he is entitled to service connection for an acquired psychiatric disorder, to include PTSD, because ongoing harassment by superior officers led to a physical altercation with a superior officer. The Veteran and his mother have provided statements describing behavioral changes during service that they believe occurred as a result of the harassment. As noted above, the November 2013 Board decision denied entitlement to service connection for PTSD and determined that new and material evidence had not been submitted to reopen the service connection claim for an acquired psychiatric disorder other than PTSD. The Veteran appealed this decision and the Court order vacated and remanded the issues pursuant to the terms of an August 2014 JMR. The Board denied the claim in part because it did not find the Veteran's assertion of behavioral changes to be credible. However, the parties to the JMR agreed that the Board mischaracterized the timing of the Veteran's behavioral changes, which invalidated its finding that he lacked credibility. It was noted that it was not until after reassignment that the Veteran began to receive performance counseling and non-judicial punishments. The parties to the JMR also noted that the Board failed to provide adequate reasons and bases for why it found the mother's statements regarding the Veteran's behavioral changes not credible. In response to the JMR, the Board obtained a VHA opinion. The July 2015 medical opinion disagreed with a November 2010 VA examination report which diagnosed PTSD. Instead, the July 2015 medical specialist diagnosed major depression with psychotic features and alcohol use disorder. She stated that the etiology of his major depression is not attributable to his military service as the Veteran's behavior in service was not indicative of a mental disorder. The Board finds that a remand is required in the instant case in order to obtain outstanding treatment records and an additional medical opinion. A review of the claims file provides an indication that the Veteran was in receipt of ongoing mental health treatment. However, VA mental health records have not been associated with the claims file in approximately three years. Thus, a remand is required in order to associate the outstanding VA treatment records. See Bell v. Derwinski, 2 Vet. App. 611 (1992). The Board also finds that another VA examination is required. Although a July 2015 medical opinion was obtained, the Veteran was not examined. In light of the conflicting PTSD diagnoses in the November 2010 VA examination report and the July 2015 medical opinion, the Board finds that an examination is required in order to clarify whether the Veteran has a diagnosis of PTSD and whether such diagnosis is based on the Veteran's stressor of alleged harassment. Moreover, although the July 2015 medical opinion considered the instances of discipline in the Veteran's service personnel records, the specialist did not consider the mother's statements that the Veteran reported the alleged ongoing harassment to her during service, that she noticed changes in his behavior during service, and that these changes were indicative of the onset of his psychiatric disorder. This is significant as Flynn v. Brown states that in the context of service-connected disability compensation, "the element of cause and effect has been totally by-passed in favor of a simple temporal relationship between the incurrence of the disability and the period of active duty." See Flynn v. Brown, 6 Vet. App. 500, 503 (1994). Thus, upon remand, the examiner should review the mother's statement that in her medical opinion, the Veteran's personnel records and her memory of the Veteran's behavioral changes indicate that the Veteran's current psychiatric disorder had its onset in service. Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007) (an adequate VA medical examination must consider the Veteran's pertinent medical history). Accordingly, the case is REMANDED for the following action: 1. Associate VA mental health treatment records dated since April 2013 with the claims file. 2. Request that the Veteran identify any pertinent private mental health treatment records. Such records should be sought. 3. Invite the Veteran to submit medical and hospitalization records, medical statements, and any other lay or medical evidence from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed, of the nature and etiology of his psychiatric disorder. 4. Schedule the Veteran for an appropriate psychiatric examination. The claims file should be made available and reviewed by the examiner. The examiner should diagnose all psychiatric disorder(s) found to be present. A diagnosis of PTSD should be specifically ruled in or excluded. The examiner should also state whether it is at least as likely as not that any diagnosed psychiatric disorder other than PTSD is related to service or otherwise had its onset during service. The examiner should specifically review the November 2010 VA examination report and July 2015 medical opinion. The examiner should also specifically consider the March 2015 statement from the Veteran's mother, who is a registered nurse, which states that the Veteran reported the alleged ongoing harassment to her during service, that she noticed changes in his behavior during service, and that these changes were indicative of the onset of his psychiatric disorder. The examiner should note that the August 2014 Joint Motion for Partial Remand (JMR) identified the Veteran's claimed stressor as daily harassment that he experienced after transfer to a new unit which culminated in the assault of an officer. The JMR further stated that the available service records show that the Veteran received a medal for good service in January 1987 and reenlisted in October 1987. He was then reassigned in December 1987. The JMR stated that after the reassignment the Veteran began to receive performance counseling and non-judicial punishments. A thorough rationale should be provided. 5. Then readjudicate the claims. If the benefits sought remain denied, the Veteran must be furnished a Supplemental Statement of the Case. The Veteran must be given an opportunity to submit written or other argument in response before the claims file is returned to the Board for further Veteran consideration. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs