Citation Nr: 1644315 Decision Date: 11/23/16 Archive Date: 12/02/16 DOCKET NO. 13-05 339 ) 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 a claim for service connection for residuals of fracture of the right tibia and fibula. 2. Entitlement to service connection for residuals of fracture of the right tibia and fibula. 3. Entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD). 4. Entitlement to special monthly compensation based on aid and attendance/housebound. REPRESENTATION Appellant represented by: Kenneth LaVan, Attorney ATTORNEY FOR THE BOARD S. Krunic, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from November 1968 to December 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from October 2010 and April 2013 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Board has recharacterized the claim to consider all psychiatric disorders, to include PTSD, to more accurately reflect the nature of the claim. See Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009). In March 2016, the Veteran's representative withdrew the Board hearing request in writing, indicating that he no longer wished to attend a hearing. As such, the Veteran's hearing request is deemed withdrawn. 38 C.F.R. § 20.704 (2015). This appeal was processed using the Veterans Benefits Management System (VBMS). The Virtual VA claims file contains documents that are either duplicative of the evidence in the VBMS claims file or not relevant to the issues on appeal. The Board notes that additional, relevant lay statements have been associated with the VBMS file since the July 2013 supplemental statement of the case. However, the Agency of Original Jurisdiction (AOJ) will have the opportunity to review these records on remand. The merits of the reopened claim for service connection for residuals of fracture of the right tibia and fibula as well as entitlement to service connection for a psychiatric disorder and entitlement to special monthly compensation based on aid and attendance/housebound are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDINGS OF FACT 1. In an April 1981 rating decision, the AOJ denied service connection for residuals of fracture of the right tibia and fibula. The Veteran was notified of the decision and did not appeal or submit new and material evidence within the one-year period thereafter. 2. The evidence received since the April 1981 rating decision, by itself, or in conjunction with previously considered evidence, relates to an unestablished fact necessary to substantiate the underlying claim. CONCLUSIONS OF LAW 1. The April 1981 rating decision denying service connection for residuals of a fracture of the right tibia and fibula is final. 38 U.S.C.A. § 7105 (c) (West 2014); 38 C.F.R. §§ 3.104, 3.156, 20.200, 20.201, 20.302, 20.1103 (2015). 2. The evidence received since the April 1981 rating decision is new and material as to the claim for service connection for fracture of the right tibia and fibula, and the claim is reopened. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (a) (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In order to reopen a claim which has been denied by a final decision, a claimant must present new and material evidence. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (a) (2015). The Board has a jurisdictional responsibility to determine whether a claim should or should not be reopened. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). In other words, new and material evidence is jurisdictional and without it the Board has no jurisdiction to adjudicate the merits de novo. McGinnis v. Brown, 4 Vet. App. 239, 244 (1993). Therefore, the Board must conduct a new and material evidence analysis regardless of whether or not the AOJ has previously found in favor of reopening a claim. In a September 1969 rating decision, the AOJ denied the Veteran's claim for service connection for residuals of a fracture of the right tibia and fibula, finding that there was no aggravation of the pre-existing knee condition in service. In April 1981, the AOJ again denied the Veteran's claim for a right knee condition because the Veteran did not submit any new and material evidence to show that his pre-existing right knee condition was aggravated during service. The Veteran was notified of the decisions and of his appellate rights, but he did not appeal either decision or submit new and material evidence within the one-year appeal period. Therefore, both the September 1969 and April 1981 decisions are final. See 38 U.S.C.A. § 7105 (c); 38 C.F.R. §§ 3.156 (b), 20.1103. At the time of the April 1981 rating decision, the evidence of record included the Veteran's service treatment records, private medical records, and a statement from the Veteran. The evidence received since the April 1981 rating decision includes additional private treatment records showing treatment for a right knee disability, to include residuals of a fracture of the right tibia and fibula as well as the Veteran's lay statements. Specifically, the Veteran states that due to the physical rigors of basic training, he reinjured his pre-existing right leg condition on two occasions. He has also states that his right knee was sound upon enlistment because he would not have enlisted otherwise. See Veteran's August 2016 statement. Thus, after the final April 1981 rating decision, the Veteran has presented lay evidence of aggravation or incurrence of a right knee disorder. For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). This additional evidence relates to an unestablished fact necessary to substantiate the claim (a possible link between a current disorder and military service), and could reasonably substantiate the claim were it to be reopened by triggering VA's duty to assist. See Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010). Thus, the Board finds that this evidence is both new and material, and the claim for service connection for residuals of a fracture of the right tibia and fibula is reopened. ORDER New and material evidence having been received, the claim for service connection for residuals of a fracture of the right tibia and fibula is reopened. REMAND Unfortunately, a remand is required in this case for the issues on appeal. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. The Veteran contends that his current right knee condition was caused or aggravated by his military service. More specifically, he states that he reinjured his right knee during basic training and was subsequently treated for knee pain during active service. See Veteran's August 2016 statement. The Veteran's June 1968 Report of Medical History at enlistment reflects that he checked off that he had swollen or painful joints, a history of broken bones, cramps in his legs, foot trouble, and bone, joint, or other deformity. The enlistment report also noted that the Veteran sustained a right knee fracture four years prior to service with associated open reduction surgery of the right tibial fracture-probably comminuted. The Veteran was afforded a VA examination in September 2010 in connection with his claim at which time he was assessed as having right knee severe degenerative joint disease with stability and right tibia/fibular status post compound fracture, healed without residual. The VA examiner opined that the Veteran's preservice disability of residuals of fractured right tibia/fibula claimed as right knee and right leg, was not increased by military service but increased due to the natural progression of the disease/injury. However, in rendering the opinion, the examiner failed to consider a November 1968 record that states that the Veteran was seen at sick call twice. On one occasion, the Veteran complained of right knee pain while running and on another occasion had complained that his right knee, right ankle and all points in between had hurt since the previous week. An additional record indicates that the Veteran complained of right knee and leg pain. Thus, the opinion does not discuss why these symptoms of pain would not be considered an increase in the severity of the preexisting disability. If the examiner did consider the pain to be an increase in the severity of the disorder, there was no opinion to explain why the pain was due to a natural progression of the disease. Furthermore, it is unclear if the examiner considered the complete history of the development of the right tibia and fibula disorder. Given the Veteran's documented in-service complaints, his ongoing complaints, and the findings in the post-service treatment records, the Board finds that an additional VA examination and medial opinion are needed for further clarification. With respect to his claim for entitlement to service connection for a psychiatric disorder, the Veteran has asserted that his psychiatric disorder was incurred in service as a result of the pain in his right tibia and fibula and did not preexist service. See Veteran's August 2016 statement. However, the Veteran's enlistment examination shows that he checked off that he had depression or excessive worry. In addition, it was documented that the Veteran worried a lot and had insomnia and attempted suicide one year prior to enlistment. Finally, it was noted at entry that the Veteran had no psychiatric illnesses. The Veteran was afforded a VA examination in September 2010 at which time he was assessed as having depressive disorder NOS and generalized anxiety disorder. The examiner opined that depressive disorder is less likely as not caused by or a result of active duty because there is no documentation of depressive symptoms present at the time of service induction or during military service. In addition, the examiner provided a positive opinion that the Veteran's generalized anxiety disorder was caused by or a result of active duty. In so finding, the examiner stated that the Veteran's entrance examination revealed that the Veteran endorsed experiencing frequent worry. During the examination, the Veteran likewise reported that this anxiety has continuously been present during and since military service. However, it is unclear whether the Veteran had a preexisting psychiatric disorder prior to enlistment. As such, the opinion does not contain a complete rationale for the determination that a diagnosed psychiatric disorder may have preexisted service, including a discussion of any in-service aggravation. Moreover, the Veteran claims that he has PTSD related to service, but he has not provided details regarding an in-service stressor. Therefore, on remand, the Veteran should be afforded another opportunity to provide details of his in-service stressor. Based on the foregoing, the Board finds that an additional VA medical examination and opinion are necessary to determine the nature and etiology of any psychiatric disorder that may be present. Finally, the Board notes that a decision on the aforementioned claims could affect the outcome of the Veteran's claim for entitlement to special monthly compensation for aid and attendance/housebound benefits. In this regard, the Veteran has contended that his right knee disability is the underlying cause for his need for aid and attendance. Notably, the Veteran's private medical records show that he is unable to ambulate adequately secondary to severe degeneration of the bilateral knees. In addition, the Veteran is noted to be unable to adequately perform necessary activities of daily living due to significantly increased pain levels, especially of the bilateral knees. See August 2013 treatment records from Dr. D.M. As such, the claims are inextricably intertwined, as the issue of service connection for residuals of a fracture of the right tibia and fibula and entitlement to service connection for a psychiatric disorder, to include PTSD must be resolved prior to resolution of the claim for entitlement to special monthly compensation for housebound/aid and attendance. See Henderson v. West, 12 Vet.App. 11, 20 (1998) (matters are "inextricably intertwined" where action on one matter could have a "significant impact" on the other). Hence, that matter is remanded to the AOJ as well. Accordingly, the case is REMANDED for the following action: 1. The AOJ should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his right tibia and fibula disorder and psychiatric disorder. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. The AOJ should also secure any outstanding, relevant VA treatment records. 2. Send the Veteran a VA Form 21-0781 (statement in support of claim for service connection for posttraumatic stress disorder (PTSD)) and request that he provide the specific details about the claimed stressors associated with PTSD. 3. After completing the preceding development, the AOJ should afford the Veteran a VA examination with an orthopedic surgeon, or similar specialist, to determine the nature and etiology of any right tibia and fibula disability that may be present. Any studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, to include the Veteran's service treatment records, post-service medical records, the September 2010 VA examination report, and lay assertions A November 1968 enlistment examination report shows that the Veteran was noted as having a right knee fracture four years prior to service with associated open reduction surgery of the right tibial fracture-probably comminuted. The Veteran has claimed that his military service aggravated his preexisting right tibia and fibula disorder. In particular, he has argued that he reinjured his right tibia and fibula during basic training while performing physical exercises and that he had no right knee issues at the time of enlistment. See Veteran's August 2016 statement. The examiner should state whether the Veteran's right tibia and fibula disorder clearly and unmistakably preexisted the Veteran's military service. If so, he or she should state whether the preexisting disorder(s) worsened in severity during service, and whether the increase in severity was consistent with the natural progression of the disease or whether the increase represented a permanent worsening or "aggravation" of the disease beyond its natural progression. The examiner should address whether the November 1968 complaints of pain while running and the complaints of right knee, ankle, and tibia/fibula pain would represent an increase in severity. If the evidence reflects an increase in service, the examiner should indicate whether any increase was due to the natural progression of the disorder or whether it represented a chronic worsening of the underlying pathology. Temporary or intermittent flare-ups during service of a pre-existing injury or disease are not sufficient to be considered aggravation in service unless the underlying disability, as contrasted to the symptoms of the disability, has worsened. If the examiner determines that a right tibia and fibula disorder did not clearly and unmistakably preexist active service, he or she should state whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran has a right tibia and fibula disorder that manifested in or is otherwise related to his active service, including any symptomatology therein. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it.) The examiner should discuss medically known or theoretical causes of any current right tibia and fibula disorder and describe how such a disorder generally presents or develops in most cases, in determining the likelihood that the current disorder is related to in-service events as opposed to some other cause. A clear rationale for all opinions would be helpful, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 4. After completing the foregoing development, provide the Veteran with a VA examination to determine the etiology of any current psychiatric disorder that may be present, to include PTSD. The examiner must elicit from the Veteran a history of his psychiatric symptoms, to include whether he experienced any symptoms during service. The examiner must review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and lay statements, and it should be confirmed that such records were available for review. An explanation for all opinions expressed must be provided. The Veteran is competent to attest to observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should identify all current psychiatric disorders. For each diagnosis identified, the examiner should state whether the disorder clearly and unmistakably preexisted the Veteran's military service. If so, he or she should state whether the preexisting disorder(s) worsened in severity during service, and whether the increase in severity was consistent with the natural progression of the disease or whether the increase represented a permanent worsening or "aggravation" of the disease beyond its natural progression. If the examiner determines that a psychiatric disorder did not clearly and unmistakably preexist active service, he or she should state whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran has a psychiatric disorder that manifested in or is otherwise related to his active service, including any symptomatology therein. With respect to PTSD, the AOJ must provide the examiner with a summary of any verified in-service stressors and instruct the examiner that only these events may be considered for the purpose of determining whether exposure to an in-service stressor has resulted in PTSD. The examiner should first determine whether the diagnostic criteria to support the diagnosis of PTSD have been satisfied. If the PTSD diagnosis is deemed appropriate, the examiner must comment on the link between the current symptomatology and any verified in-service stressor(s). (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it.) A clear rationale for all opinions would be helpful, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 5. After completing the foregoing development, the AOJ should conduct any other development as may be indicated as a consequence of the actions taken in the preceding paragraphs, to include a possible VA medical examination for housebound/aid and attendance benefits. 6. When the development requested has been completed, the case should be reviewed by the AOJ on the basis of additional evidence received since the July 2013 Supplemental Statement of the Case (SSOC). If the benefits sought are not granted, the Veteran and his representative should be furnished an SSOC and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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 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). ______________________________________________ ANTHONY C. SCIRÉ, JR. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs