Citation Nr: 1616396 Decision Date: 04/26/16 Archive Date: 05/04/16 DOCKET NO. 09-28 080A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to nonservice-connected VA pension benefits. 2. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a left knee disability. 3. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a low back disability. 4. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for an acquired psychiatric disorder, to include schizophrenia. 5. Entitlement to service connection for a right knee disability. 6. Entitlement to a total disability rating based upon individual unemployability due to service connected disabilities (TDIU). REPRESENTATION Veteran represented by: Larry Knopf, Esq. WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD K. K. Buckley, Counsel INTRODUCTION The Veteran served on active duty from March 1978 to April 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions dated May 2008, May 2010, and December 2014 of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The Veteran presented testimony at a personal hearing before a Veterans Law Judge in October 2015. A transcript is of record. The law requires that the Veterans Law Judge who conducts a hearing on an appeal must participate in any decision made on that appeal. 38 U.S.C. § 7107(c) (West 2014); 38 C.F.R. § 20.707 (2015). In December 2015, the Board sent a letter to the Veteran, which explained that the Veterans Law Judge who presided over his hearing was no longer available to participate in the appeal and offered the Veteran a hearing before a different Veterans Law Judge; otherwise, the case would be reassigned. In January 2016, the Veteran responded that he did not want another hearing. Thus, the Board will proceed with the matter on appeal. The issue of entitlement to service connection for an acquired psychiatric disorder is being reopened herein. The underlying issue of service connection, as well as the claims of entitlement to service connection for a right knee disability and entitlement to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). The Veteran will be notified if further action on his part is required. FINDINGS OF FACT 1. The Veteran did not serve on active duty during a period of war. 2. In a January 1985 decision, the Board denied the Veteran's claim of entitlement to service connection for a left knee disability. 3. Additional evidence received since the January 1985 Board decision is new to the record, but does not relate to an unestablished fact necessary to substantiate the merits of the claim of service connection for a left knee disability. 4. In a May 1997 decision, the Board denied the Veteran's claims of entitlement to service connection for a low back disability and an acquired psychiatric disorder. 5. Additional evidence received since the May 1997 Board decision is new to the record, but does not relate to an unestablished fact necessary to substantiate the merits of the claim of service connection for a low back disability. 6. Additional evidence received since the May 1997 Board decision, and considered with the record as a whole, is neither cumulative nor redundant as to the issue of entitlement to service connection for an acquired psychiatric disorder, and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The criteria for basic eligibility for nonservice-connected pension benefits have not been satisfied. 38 U.S.C.A. § 1521 (West 2014); 38 C.F.R. §§ 3.2, 3.3 (2015). 2. The January 1985 Board decision denying the claim of entitlement to service connection for a left knee disability is final. 38 U.S.C.A. § 7104 (West 2014); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2015). 3. Since the January 1985 Board decision, new and material evidence has not been received with respect to the claim of entitlement to service connection for a left knee disability; this claim is not reopened. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2015). 4. The May 1997 Board decision denying the claims of entitlement to service connection for a low back disability and an acquired psychiatric disorder is final. 38 U.S.C.A. § 7104 (West 2014); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2015). 5. Since the May 1997 Board decision, new and material evidence has not been received with respect to the claim of entitlement to service connection for a low back disability; this claim is not reopened. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2015). 6. The evidence received since the May 1997 decision is new and material as to the issue of service connection for an acquired psychiatric disorder, and 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 I. VA's Duties to Notify and Assist Upon receipt of a substantially complete application for benefits, VA must notify the claimant of what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.129(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence that claimant is expected to provide. In Dingess v. Nicholson, 19 Vet. Ap. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service connection claim, VA is required to review the evidence presented with the claim and to provide the claimant with notice of what evidence not previously provided will help substantiate his/her claim. See also 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Specifically, VA must notify the claimant of what is required to establish service connection and that a disability rating and effective date for the award of benefits will be assigned if service connection is awarded. In Kent v. Nicholson, 20 Vet. App. 1 (2006), the Court held that the VCAA notice requirements in regard to new and material evidence claims require VA to send a specific notice letter to the claimant that: (1) notifies him or her of the evidence and information necessary to reopen the claim (i.e., describes what is meant by new and material evidence); (2) identifies what specific evidence is required to substantiate the element or elements needed for service connection that were found insufficient in the prior denial on the merits; and (3) provides general VCAA notice for the underlying service connection claim. In VAOPGCPREC 6-2014, VA's General Counsel recognized that, in Kent, supra, the Court held that, upon receipt of a claim to reopen, VA must "look at the bases for the denial in the prior decision and . . . [provide] a notice letter that describes what evidence would be necessary to substantiate th[e] element or elements ... that were found insufficient in the previous denial." However, it was further noted that, such holding in Kent, which required VA to provide case-specific notice upon receipt of a claim to reopen, is inconsistent with the subsequent Federal Circuit decisions in Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (Fed. Cir. 2009), and Wilson v. Mansfield, 506 F.3d 1055, 1059 (Fed. Cir. 2007), holding that section 5103(a)(1) is satisfied by "generic notice," i.e., notice that "identif[ies] the information and evidence necessary to substantiate the particular type of claim being asserted" by a claimant and rejecting the argument that the statute requires specific notice of missing evidence with respect to a particular claim. Further, subsequent to Kent, Congress revised 38 U.S.C. § 5103(a) in Public Law 112-154 to authorize VA to provide notice under that section before VA receives the claim, such as by including the notice on standard application forms. Under the Federal Circuit's precedents and the revision made by Public Law 112-154, 38 U.S.C. § 5103(a)(1) cannot be construed to require notice tailored to the facts or circumstances of an individual claim. Therefore, VA's General Counsel determined that Kent is no longer controlling insofar as it construed former 38 U.S.C. § 5103(a) to require that VA provide such case-specific notice to a claimant who has filed an application to reopen a previously denied claim and, pursuant to 38 U.S.C. § 5103(a)(1), upon receipt of a claim to reopen a previously denied claim, VA is not required to provide notice of the information and evidence necessary to substantiate the particular factual element or elements that were found insufficient in the previous denial of the claim. However, VA's General Counsel has since determined that, in light of subsequent decisions by the United States Court of Appeals for the Federal Circuit, and amendments to 38 U.S.C. § 5103(a), Kent is no longer controlling insofar as it requires VA to provide tailored notice of the information and evidence necessary to substantiate the specific element(s) that were found insufficient in the previous denial of the claim. See VAOPGCPREC 6-2014. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable AOJ decision on the claim for VA benefits. In the instant case, the Board finds that VA has satisfied its duty to notify under the VCAA. Initially, with respect to the issue of entitlement to nonservice-connected VA pension benefits, there are certain instances where the VCAA does not apply because the issue presented is solely one of statutory interpretation and/or the claim is barred as a matter of law. See Smith v. Gober, 14 Vet. App. 227, 230 (2000) (claim that a Federal statute provides for payment of interest on past-due benefits), aff'd, 281 F.3d 1384 (Fed. Cir. 2002), cert. denied, 537 U.S. 821 (2002). This is the situation with respect to the claim for nonservice-connected pension in that the facts are not in dispute and resolution of the claim is wholly dependent on interpretation of the applicable laws and regulations pertaining to nonservice-connected pension. See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001); Mason v. Principi, 16 Vet. App. 129 (2002); see also VAOPGCPREC 5-2004 (June 23, 2004). With regard to the Veteran's claims to reopen, a January 2010 letter, sent prior to the initial unfavorable decision issued in May 2010, advised the Veteran that his claims had been denied in prior Board decisions. He was further informed of the definition of new and material evidence as well as the evidence and information necessary to substantiate his service connection claims. This letter also notified him of his and VA's respective responsibilities in obtaining such evidence and information. Additionally, the January 2010 letter advised him of the information and evidence necessary to establish a disability rating and an effective date in accordance with Dingess/Hartman, supra. With respect to VA's duty to assist, the Veteran's service treatment records (STRs) and Social Security Administration (SSA) records, as well as VA and private treatment records have been obtained and associated with the claims file. The Veteran has not identified any additional, outstanding records that have not been requested or obtained. Thus, the Board finds that VA has fully satisfied the duty to assist. In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant are to be avoided). VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, he will not be prejudiced as a result of the Board proceeding to the merits of his claims. II. Entitlement to nonservice-connected VA pension benefits A veteran is entitled to nonservice-connected pension benefits if he is permanently and totally disabled from a nonservice-connected disability which is not the result of willful misconduct, provided that he has the requisite service. 38 U.S.C.A. § 1521(a); 38 C.F.R. §§ 3.3, 3.314(b). A veteran meets the service requirements to receive nonservice-connected pension benefits if such veteran served in the active military, naval or air service: (a) for 90 days or more during a period of war; (b) during a period of war and was discharged or released from such service for a service-connected disability; (c) for a period of 90 consecutive days or more and such period began or ended during a period of war; or (d) for an aggregate of 90 days or more in two or more separate periods of service during more than one period of war. 38 U.S.C.A. § 1521(j). The Veteran's Report of Discharge (DD Form 214) reflects that he entered active service in March 1978 and that he was discharged from active service in April 1979. He does not have any other active service. The periods of war for purposes of establishing eligibility for nonservice-connected pension benefits are set forth in Section 3.2 of Chapter 38 of the Code of Federal Regulations. Pertinent to the Veteran's claim, Vietnam era (wartime) service is defined as "[t]he period beginning on February 28, 1961, and ending on May 7, 1975, inclusive, in the case of a veteran who served in the Republic of Vietnam during that period. The period beginning on August 5, 1964, and ending on May 7, 1975, inclusive, in all other cases." 38 C.F.R. § 3.2(f). Service in the Republic of Vietnam includes service in the waters off shore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 U.S.C.A. § 1116 (West 2014); 38 C.F.R. § 3.307(a)(6)(iii) (2015). In this case, the Veteran does not contend and the evidence does not reflect that he served in the Republic of Vietnam. Therefore, wartime service as a Vietnam era veteran has not been established. The legal criteria in this case are clear and the pertinent facts are not in dispute. The Veteran did not serve during a period of war as defined by law or regulation. Thus, as he had no wartime service, he is ineligible for nonservice-connected pension benefits. 38 U.S.C.A. § 1521(j). The Board has no authority to create exceptions, or to overturn or to disregard this very specific limitation on the award of VA pension benefits. 38 U.S.C.A. § 7104(a) (West 2014); see Harvey v. Brown, 6 Vet. App. 416, 423 (1994) (payments of money from the Federal Treasury are limited to those authorized by statute). In Harvey, the Court pointed out that it is a federal crime, punishable by fine and imprisonment, for any Government officer or employee to knowingly spend money in excess of that appropriated by Congress. Id. at 424 (citing OPM v. Richmond, 496 U.S. 414, 430, 110 S. Ct. 2465, 2474 (1990)). Where, as here, the law and not the evidence is dispositive, the Veteran's claim for nonservice-connected VA pension benefits must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). III. Claims to reopen In the current appeal, the Veteran contends that he suffers from disabilities of the left knee and back, which were incurred during his military service. He also asserts that he is diagnosed with an acquired psychiatric disorder, to include schizophrenia, which was caused by or initially manifest in his active duty service. In this regard, a review of the claims file shows that the Veteran's left knee disability claim was last denied in a January 1985 Board decision. The Veteran did not appeal. Accordingly, the January 1985 decision is therefore final with respect to the left knee disability claim. See 38 U.S.C.A. § 7104; 38 C.F.R. § 20.1100; Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011). The claims of entitlement to service connection for a low back disability and an acquired psychiatric disorder were last denied in a May 1997 Board decision. The Veteran did not appeal. As such, the May 1997 decision is therefore final with respect to the low back disability and acquired psychiatric disorder claims. See 38 U.S.C.A. § 7104; 38 C.F.R. § 20.1100; Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011). Despite the finality of a prior adverse decision, a claim will be reopened and the former disposition reviewed if new and material evidence is furnished with respect to the claim that has been disallowed. 38 U.S.C.A. § 5108; 38 C.F.R. §§ 3.156(a), 20.1100, 20.1105. Where service connection for a disability has been denied in a final decision, a subsequent claim for service connection for that disability may be considered on the merits only if new and material evidence has been received since the time of the prior adjudication. The Board must consider the question of whether new and material evidence has been received because it goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim de novo. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). If the Board finds that no such evidence has been offered, that is where the analysis must end, and what the RO may have determined in that regard is irrelevant. For applications filed after August 29, 2001, as in this case, new evidence means 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 claims. See 38 C.F.R. § 3.156(a) (2014). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is presumed. See Justus v. Principi, 3 Vet. App. 510 (1992). Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (1995). As noted above, the Veteran's petition to reopen his claims of service connection for a left knee disability, a low back disability, and an acquired psychiatric disorder were last previously considered and denied in January 1985 and May 1997 Board decisions. The evidence associated with the Veteran's claims file at the time of the last final denials included STRs, VA treatment records, VA examination reports dated June 1979, May 1979, and January 1984, private treatment records, and the Veteran's statements. At the time of the last final denials, the Veteran contended that he injured his left knee and low back during his military service. See the Veteran's statement dated August 1982; see also the VA Form 9 dated December 1994. He also reported that he developed a psychiatric disability during his military service as a result of harassment and general stresses of military service. See the Veteran's notice of disagreement (NOD) dated August 1979. The Veteran's available service records show active duty service from March 1978 to April 1979. STRs indicate that the Veteran complained of back pain in July 1978. Unresolved low back pain was noted in August 1978, at which time it was reported that the Veteran strained his back doing heavy lifting. STRs dated November 1978 noted the Veteran's report of experiencing back pain for about two years. The Veteran complained of left knee pain in November 1978; he was diagnosed with left knee arthralgia at that time. Low back pain and left knee pain were again noted in December 1978 at which time the Veteran reported having experienced left knee pain for seven months. A diagnosis of iliotibial band syndrome of the left knee was documented in January 1979; the Veteran was placed on a physical profile. In a February 1979 letter to the Veteran's commander, it was noted that after review of the Veteran's STRs, it was the consensus that his various complaints "are subjective in nature and cannot be substantiated by physical examinations, laboratory tests, and radiological studies." A February 1979 statement of counseling noted the Veteran's report that "he is in near constant pain" due to his back and knee complaints. The counselor noted that the Veteran had built up his pain to more than it is due to adjustment trouble in the Army. A February 1979 Report of Mental Status Evaluation found no evidence of psychopathy, but indicated that the Veteran had a "lack of response to the authorities implicit in the military." In March 1979, the Veteran was recommended for discharge due to unsuitability. The March 1979 separation examination documented the Veteran's report of having experienced left knee pain since November 1978 and low back pain for about four years. In April 1979, the Veteran filed a claim of entitlement to service connection for left knee and low back disabilities, as well as a psychiatric disorder. A May 1979 VA orthopedic examination noted that x-ray of the left knee was within normal limits and the examiner concluded that the exact nature of the Veteran's left knee pathology was unknown. A June 1979 VA examination noted that the Veteran's left knee apparently slowly began to give him trouble during physical training and that the orthopedist at Fort Stewart prescribed a knee support. Upon physical examination, the examiner noted that the lateral knee appears to have loose collateral ligaments. The examiner also reported that the Veteran was only able to flex his lumbar spine to 85 degrees. However, the examiner did not diagnose the Veteran with current left knee or lumbar spine disabilities. A June 1979 VA neuropsychiatric examination noted the Veteran's report of psychological stress due to his military service. The examiner diagnosed the Veteran with situational stress reaction of adult life, adjustment reaction of adult life, and psychoneurosis, mixed, with anxiety and depression. The Veteran's left knee, low back, and psychiatric disability claims were denied in a June 1979 rating decision, at which time the RO determined that the Veteran's "back complaints in-service were apparently acute and no back condition was found on VA examination." As to the left knee disability, the RO indicated that "[t]he VA orthopedic examination did not diagnose a chronic left knee disability." With respect to the claimed nervous condition, the RO indicated that neurosis and/or psychosis were not treated in service and "although the VA examiner showed mixed psychoneurosis along with the Veteran's constitutional or developmental adjustment reaction of adult life, there is no evidence to show this was due to or the result of his active military service." The Veteran filed a notice of disagreement in November 1979, at which time he additionally argued that he had a back problem before service but believes it was aggravated by vigorous in-service training. VA treatment records dated June 1979 documented the Veteran's report of left knee pain for two weeks; contemporaneous x-rays were negative for abnormalities. The Veteran's left knee, low back, and psychiatric disability claims were denied in a February 1982 Board decision. The Veteran subsequently filed claims to reopen, which were denied by the RO in December 1982 and March 1983. An April 1982 treatment record from Dr. F.G. noted that the Veteran had been admitted to Spring Grove Hospital Center in March 1982, but had left against medical advice. A diagnosis of paranoid schizophrenia was indicated. An October 1982 report from the Department of Health, Office of the Southern Community Mental Health Center, noted that the Veteran had received outpatient therapy since October 1981; a diagnosis of schizoaffective disorder was indicated. It was further reported that the Veteran additionally complained of back and left knee pain and had been referred to an orthopedic physician. A March 1983 letter from Dr. S.A. noted that the Veteran had been under his care since February 1982. Dr. S.A. reported that the Veteran "has chronic lumbosacral strain of prolonged duration as well as chondromalacia of the left patella." In a separate March 1983 letter, Dr. L.M. indicated that the Veteran had been under his care since September 1982. Dr. L.M. reported that the Veteran's current diagnoses included iliotibial band syndrome and chronic back problems. In an April 1983 letter, J.L., a registered nurse, reported that the Veteran had been receiving outpatient psychiatric treatment since September 1981. A November 1983 discharge summary from Leland Memorial Hospital documented a diagnosis of schizophrenic disorder, mixed type. Private treatment records from Prince George's County Hospital dated in November 1983 noted a diagnosis of depressive neurosis. A January 1984 VA psychological evaluation documented the Veteran's report that he was harassed during his military service. The examiner indicated that he was unable to verify a diagnosis of schizophrenia because "[t]here is a marked discrepancy between his claimed distress and the physical and psychiatric findings." The examiner did confirm a diagnosis of mixed personality disorder with passive-aggressive and borderline features. A January 1984 VA orthopedic examination indicated that the Veteran had a normal back with no abnormalities show upon x-ray. A diagnosis of chondromalacia of the left knee was also noted, with x-rays negative for abnormalities. In May 1983, the RO again declined to reopen the Veteran's left knee, low back, and psychiatric disorder claims. The Veteran filed a NOD in May 1984. A January 1985 Board decision denied the Veteran's claims to reopen the issues of entitlement to service connection for left knee, low back, and psychiatric disabilities. In December 1993, the Veteran filed a claim to reopen his previously denied back and psychiatric disability claims. Private treatment records dated January 1992 through October 1993 documented the Veteran's reports of chronic low back pain. Back pain was also noted in private treatment records dated April 1984. A September 1990 discharge summary from Hillcrest Hospital confirmed a diagnosis of paranoid schizophrenia. In August 1985, Dr. C.S. reported that the Veteran had a diagnosis of posttraumatic stress syndrome as a result of an incident at work. In a July 1986 letter, Dr. K.P. indicated that the Veteran "has been given the diagnosis of posttraumatic stress syndrome based on him witnessing a tragic accident at his place of work." A diagnosis of PTSD was noted. Similarly, in a May 1987 letter, Dr. R.S. noted that the Veteran sought psychological help due to a work-place stressor. The Veteran's claim to reopen the issues of entitlement to service connection for a low back disability and a psychiatric disorder was denied in August 1994. The Veteran disagreed and perfected his appeal in December 1994. A May 1997 Board decision declined to reopen the Veteran's low back disability and psychiatric disorder claims. The Veteran did not file an appeal and the decision became final. a. Left knee and low back disability claims After a review of the entire record, and for the reasons expressed immediately below, the Board concludes that new and material evidence to reopen the claims of entitlement to service connection for left knee and low back disabilities has not been received. The evidence associated with the claims file subsequent to the prior final decisions in January 1995 and May 1997 includes, but is not limited to, the Veteran's VA and private treatment records; a February 2010 letter from Dr. D.S.; a VA examination report dated June 2011; a VA addendum opinion dated June 2012; and lay statements of the Veteran and his mother. Medical evidence has been added to the record indicating that the Veteran has continuing complaints of back and knee pain. See, e.g., the VA treatment records dated November 2000, December 2002, October 2008 and April 2009. Additionally, in a February 2010 letter, Dr. D.S. reported that the Veteran had a history of low back pain. He reported that he had treated the Veteran for low back pain since at least May 1988. Additionally, a June 2011 VA examination report noted the Veteran's report of back pain dating from an in-service injury; a diagnosis of back strain was indicated. The Board recognizes that this evidence is new, in that it was not of record at the time of the last final denial; however, this evidence is not material because the question of current and continuing diagnoses of continuing back and left knee complaints was not in dispute. Similarly, the Veteran's repeated assertions, including at the October 2015 Board hearing, concerning the incurrence and etiology of his back and knee pain, although new, are essentially reiterative of evidence already of record. Moreover, the Board notes that a June 2012 VA addendum opinion indicated there was no documentation to support a chronic disorder of lumbar strain. The addendum opinion further found that the claimed lumbar strain was less likely as not due to a lumbar strain during active military service. Accordingly, although this evidence is new, it is unfavorable to the low back disability claim and thus does not provide a basis for reopening. See Villalobos v. Principi, 3 Vet. App. 450 (1992) (evidence that is unfavorable to a claimant is not new and material). The Board additionally notes that the lay statement of the Veteran's mother, although new, is not material as this statement is simply reiterative of the Veteran's statements concerning current and continuing back and left knee pain symptomatology. To this end, while the Board acknowledges that the Veteran and his mother are presumed credible for the purpose of determining whether new and material evidence has been submitted, the record does not indicate that they are competent to opine on complex medical questions such as the etiology of the claimed left knee and low back disabilities. The Board has considered the holding in Shade v. Shinseki, 24 Vet. App. 110 (2010). In that decision, the Court held that, in determining whether evidence raises a reasonable possibility of substantiating a claim for purposes of reopening a claim, a veteran's testimony regarding having experienced ongoing symptoms since service can be considered relevant as to the issue of nexus. In reaching this conclusion, the Court reaffirmed the notion that a veteran's testimony should not be rejected as not being material solely because he or she is a lay person, or because contemporaneous medical evidence is no longer available to corroborate it. Id; see also Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009) and Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007). However, as indicated above, in the current appeal the Veteran has not provided evidence in support of nexus, which was not previously considered in prior decisions. Accordingly, his contentions made during the current appeal may not be deemed to be both new and material. Shade, supra. The Veteran has been afforded ample opportunity to submit new and material evidence. 38 U.S.C.A. § 5107(a). As the additionally received evidence does not tend to establish any point not previously demonstrated, it is cumulative. See 38 C.F.R. § 3.156 (2015). The Board must therefore conclude that new and material evidence has not been received and that the Veteran's claims for service connection for left knee and low back disabilities are not reopened. b. Acquired psychiatric disorder claim As noted above, the Veteran's petition to reopen the claim of service connection for an acquired psychiatric disorder was last previously considered and denied in a May 1997 Board decision. Relevant evidence received since the May 1997 decision includes VA and private treatment records; a February 2010 letter from Dr. D.S.; an April 2012 letter from Dr. A.K.; an August 2014 opinion from Dr. D.S.; and statements by the Veteran and his mother in support of the claim. The Board notes that VA treatment records dated in August 2000, July 2001, and May 2003 document continuing diagnoses of schizophrenia, PTSD, and major depression with psychotic features. In a February 2010 statement, Dr. D.S. reported that he had treated the Veteran for schizophrenia since May 1988. An April 2012 letter from Dr. A.K. described the Veteran's continuing treatment for paranoid schizophrenia. The Board recognizes that this evidence is new, in that it was not of record at the time of the last final denial; however, this evidence is not material because the question of current and continuing diagnoses of chronic psychiatric complaints was not in dispute. Notably, in an August 2014 letter, Dr. D.S. reported that the Veteran was initially diagnosed with schizophrenia in late 1979 or early 1980. Dr. D.S. indicated, "[a]ccording to [the Veteran] and his family, his mental problems began while he was in the Army in 1978-1979. Since [the Veteran] had no previous history of mental disorder, it is at least as likely as not that his schizophrenia began while he was in the Army." The August 2014 letter from Dr. D.S., along with the medical and other evidence added to the record, relates to the previously unestablished elements of a current psychiatric disorder, to include schizophrenia, and a link between said disability and the Veteran's military service. Accordingly, the standards under 3.156(a) have been met and the claim is reopened. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); Shade v. Shinseki, 24 Vet. App. 110 (2010). ORDER Entitlement to VA nonservice-connected pension benefits is denied. New and material evidence having not been received, the claim of entitlement to service connection for a left knee disability is denied. New and material evidence having not been received, the claim of entitlement to service connection for a low back disability is denied. New and material evidence having been received, the claim of entitlement to service connection for an acquired psychiatric disorder is reopened; to that extent only, the appeal is allowed. REMAND After having considered the matter, and for reasons expressed immediately below, the Board finds that the remaining issues on appeal must be remanded for further development. As to the claim of entitlement to service connection for an acquired psychiatric disorder to include schizophrenia, as indicated above, the record documents continuing diagnoses of paranoid schizophrenia and depressive disorder. The Board recognizes that the Veteran submitted a positive nexus statement from Dr. D.S. in support of his claim. As described above, Dr. D.S. opined that because the Veteran had no history of a mental disorder prior to his military service, "it is at least as likely as not that his schizophrenia began while he was in the Army." The Board also recognizes the Court's holding in Kowalski v. Nicholson, 19 Vet. App. 171 (2005) finding that the Board may not reject a favorable medical opinion solely on the rationale it was predicated on a history as recounted by the Veteran, unless the Board determines this recounted history is not credible. See Kowalski, supra; see also Coburn v. Nicholson, 19 Vet. App. 427 (2006). In contrast, as described above, the June 1979 VA neuropsychiatric examination diagnosed the Veteran with situational stress, adjustment reaction, and psychoneurosis, which it linked to a reaction to adult life. Further, in a January 1984 VA examination, the examiner stated that he was unable to confirm a diagnosis of schizophrenia because "[t]here is a marked discrepancy between [the Veteran's] claimed distress and the physical and psychiatric findings." The examiner instead confirmed a diagnosis of mixed personality disorder with passive-aggressive and borderline features. Accordingly, given the conflicting medical evidence of record with respect to current diagnosis and etiology of a psychological disorder, the Board finds that a remand is warranted in order for a VA examiner to address the outstanding questions of diagnosis and nexus. See Charles v. Principi, 16 Vet. App. 270 (2002); see also 38 C.F.R. § 3.159(c)(4) (2015) (a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim); see also Colvin v. Derwinski, 1 Vet. App. 191 (1999) (the Board is prohibited from exercising its own independent judgment to resolve medical questions). With respect to the claimed right knee disability, the Veteran has asserted that he suffers from a right knee disability, which was incurred during his military service. See the Veteran's claim dated September 2009. STRs documented the Veteran's report of right leg pain in July 1978. However, the Veteran's STRs, including his March 1979 separation examination, did not note any right knee complaints. A May 1981 VA treatment record documented the Veteran's report of right knee pain. VA treatment records dated in September 2010 note that the Veteran has a diagnosis of arthritis in the knees, by history. However, the claims file does not contain x-ray evidence corroborating a diagnosis of arthritis in either knee. The Veteran has not been afforded a VA examination as to his claimed right knee disability. Thus, there remain questions as to current diagnosis and etiology of the claimed disability. Colvin v. Derwinski, 1 Vet. App. 191, 175 (1999) (the Board is prohibited from exercising its own independent judgment to resolve medical questions). A remand for an appropriate VA examination with a medical opinion should therefore be accomplished in order to address these outstanding questions. See Charles v. Principi, 16 Vet. App. 370 (2002); see also 38 C.F.R. § 3.159(c)(4) (2015) (a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim). Upon remand, any previously unobtained ongoing relevant medical records should be procured and associated with the Veteran's claims file. As the Veteran's claim of entitlement to a TDIU is inextricably intertwined with the pending claims, the Board will defer consideration of the TDIU claim. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two or more issues are inextricably intertwined if one claim could have significant impact on the other). Accordingly, the case is REMANDED for the following action: 1. After obtaining the appropriate release of information forms where necessary, procure any records of any pertinent treatment or evaluation that the Veteran may have received at a VA health care facility since June 2015. All such available documents should be associated with the claims file. 2. Thereafter, schedule the Veteran for an examination by a VA psychiatrist or psychologist to determine whether the diagnostic criteria for a psychiatric disorder to include schizophrenia are met. The Veteran's claims file, to include a complete copy of this REMAND, must be provided to the examiner designated to examine the Veteran, and the report of examination should note review of the claims file. All necessary special studies or tests, to include psychological testing and evaluation should be accomplished. The examiner should then indicate whether it is at least as likely as not (50 percent probability or greater) that any diagnosed psychiatric disorder to include schizophrenia had its(their) clinical onset during the Veteran's active duty, within the first post service year (in the case of a psychosis), or is(are) otherwise related to such service. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports should be specifically acknowledged and considered in formulating opinions. If the examiner rejects the Veteran's reports of symptomatology, a reason for doing so should be provided. The absence of evidence of treatment for the claimed disorder, in the Veteran's service treatment records cannot, standing alone, serve as the basis for a negative opinion. Reasons should be provided for any opinion rendered. If the examiner is unable to provide an opinion without resort to speculation, an explanation as to why this is so should be provided and any additional evidence that would be necessary before an opinion could be rendered should be identified. 3. Thereafter, schedule the Veteran for a VA examination to determine the etiology of the claimed right knee disability. The claims file, including a copy of this remand, must be made available to the examiner for review in connection with the examination. All indicated tests should be conducted, and the reports of any such studies should be incorporated into the examination report to be associated with the claims file. The examiner should elicit from the Veteran a detailed account of any instances of in-service and post-military right knee symptomatology. The examiner should either diagnose or rule out a current right knee disability. If any disability of the right knee is diagnosed, the examiner should provide an opinion as to whether it is at least as likely as not (i.e., at least a 50 percent probability) that any diagnosed right knee, had its clinical onset during his active duty or is otherwise related to such service. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports should be specifically acknowledged and considered in formulating opinions. If the examiner rejects the Veteran's reports of symptomatology, a reason for doing so should be provided. The absence of evidence of treatment for the claimed disorder, in the Veteran's service treatment records cannot, standing alone, serve as the basis for a negative opinion. Reasons should be provided for any opinion rendered. If the examiner is unable to provide an opinion without resort to speculation, an explanation as to why this is so should be provided and any additional evidence that would be necessary before an opinion could be rendered should be identified. 4. The agency of original jurisdiction will then readjudicate the Veteran's claims. If the benefits sought on appeal remain denied, the Veteran and his attorney should be provided with a Supplemental Statement of the Case. An appropriate period of time should be allowed for response. No action is required of the Veteran until notified by the RO; however, the Veteran is advised that failure to report for any scheduled examination may result in denial of the claims. 38 C.F.R. § 3.655 (2015). The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs