Citation Nr: 1644748 Decision Date: 11/29/16 Archive Date: 12/09/16 DOCKET NO. 15-45 243 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for right knee degenerative joint disease. 2. Entitlement to service connection a left knee disability. 3. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for posttraumatic stress disorder (PTSD). 4. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD. REPRESENTATION Veteran represented by: North Carolina Division of Veterans Affairs ATTORNEY FOR THE BOARD Amanda Baker, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1961 to October 1963. These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In March 2006 the Veteran filed a claim for service connection for PTSD. In an April 2007 rating decision, the RO denied service connection for PTSD. The Veteran did not appeal this rating decision. Then, in January 2011 the Veteran submitted an application to reopen his previously denied service connection for PTSD claim. In a July 2012 rating decision, the RO found that the claim to reopen a claim for service connection for PTSD, remained denied because the evidence submitted was not new and material. The Board has a jurisdictional responsibility to consider whether it was proper for a claim to be reopened, regardless of whether the RO granted or denied an application to reopen. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900 (c) (2015). 38 U.S.C.A. § 7107 (a)(2) (West 2014). The issues of entitlement to service connection for right knee degenerative joint disease, a left knee disability, and a psychiatric disorder to include PTSD, are addressed in the REMAND portion of the decision below and are REMANDED to the agency of original jurisdiction (AOJ). FINDINGS OF FACT 1. In an April 2007 rating decision the RO denied entitlement to service connection for PTSD. The Veteran neither appealed this decision nor submitted new and material evidence within the one year appeal period, and the decision thus became final. 2. The additional evidence received since the April 2007 rating decision denying the claim of service connection for PTSD, relates to unestablished facts necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The April 2007 rating decision denying service connection for PTSD is final. 38 U.S.C.A. § 7105(c) (West 2014); 38 C.F.R. § 20.1103 (2015). 2. The additional evidence received since the April 2007 rating decision is new and material and the criteria for reopening of the claim for entitlement to service connection for PTSD, have therefore been met. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Generally, a claim that has been denied in an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C.A. § 7105(c) (West 2014). The exception to this rule is 38 U.S.C.A. § 5108 (West 2014), which provides that if new and material evidence is presented or secured with respect to a claim that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decisionmakers. Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2015). For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). In April 2007, the RO denied the Veteran's claim for entitlement to service connection for PTSD. Although notified of this denial, the Veteran did not appeal, and did not submit new and material evidence within the one year appeal period. Therefore, this denial became final. See 38 U.S.C.A. § 7105(c); 38 C.F.R. §§ 3.156(b), 20.1103. The Veteran's claim of service connection for PTSD because of lack of evidence to corroborate a stressor. A November 2015 private treatment record documents the Veteran's report of a stressor. He reported that in 1962 he was in truck accident causing him to be unconscious and hospitalized for a lengthy period of time. Based on the Veteran's report, the private physician, Dr. E.H., indicated that because of his "service-connected" PTSD and traumatic brain injury, he is unable to sustain social and work relationships. September 2005 to November 2009 private medical records document the Veteran's same report of an in-service injury, and contain treatment for PTSD and depression. Thus, these records are evidence relating to the basis for the prior denial and raise a reasonable possibility of substantiating the claim. The evidence is thus new and material and the criteria for reopening of the claim for entitlement to service connection for PTSD have therefore been met. ORDER The application to reopen the claim for service connection for PTSD is granted. REMAND This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). The Board has reviewed the claims file, and determined that additional development is warranted. With respect to the service connection claims on appeal, a remand is required to schedule the Veteran for VA examinations and obtain outstanding records which are potentially pertinent to the claims on appeal. Initially, the Board has expanded the issue of service connection for PTSD to include all acquired psychiatric disorders. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). To date, the Veteran has not been afforded a VA examination to determine the nature and etiology of any acquired psychiatric disorder, to include PTSD. In light of the above, the Board finds that a VA examination is needed to determine all of the Veteran's current psychiatric disabilities and their relationship to service. As for the knee claims, January 2010 VA treatment records list a diagnosis of degenerative joint disease of the left knee based on October 2005 left knee x-rays. The Veteran was afforded a VA examination in June 2012. A review of the claims file was not noted. X-rays of the right knee showed degenerative changes, and a diagnosis of degenerative joint disease of the right knee was noted. The examination showed pain and instability in the left knee, but a left knee diagnosis was not provided. However, in an August 2012 statement to support his claims, the Veteran reported left knee problems and stated that the examiner should have provided left knee, instead of right knee, x-rays. To this regard, the examiner did not reconcile June 2010 VA treatment records and October 2005 x-rays showing left knee degenerative joint disease. In light of the June 2012 examination report not indicating review of the claims file or reconciling evidence showing a left knee diagnosis, a new VA examination is warranted to determine all current knee disabilities, and the etiology of such disabilities. The Veteran is in receipt of benefits from the Social Security Administration according to correspondence received in November 2015. As these records are potentially relevant to the claims on appeal, they should be obtained. See Golz v. Shinseki, 590 F.3d 1317, 1320-1321 (Fed. Cir. 2010). Ongoing VA medical records should also be obtained. 38 U.S.C.A. § 5103A(c) (West 2014); Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (VA has a duty to assist in obtaining sufficiently identified VA medical records regardless of their relevance). Finally, the Veteran has stated that he was hospitalized at the 97th General Hospital in Frankfurt, Germany, and that VA's duty to assist requires it to seek these records. The Board agrees and those records should therefore be requested. Accordingly, the claims for service connection for right and left knee disabilities and an acquired psychiatric disorder to include PTSD are REMANDED for the following action: 1. Obtain and associate with the claims file any outstanding VA treatment records, which have not already been associated with the claims file. 2. Request records of the Veteran's hospitalization at the 97th General Hospital in Frankfurt, Germany. If the records cannot be obtained, take action in accordance with 38 C.F.R. § 3.159(e) (2015). 3. Obtain from the Social Security Administration the records pertinent to the Veteran's claim for Social Security disability benefits, including the medical records relied upon concerning that claim. 4. After accomplishing the above development, schedule the Veteran for a VA psychiatric examination. The electronic claims folder must be made available and reviewed by the examiner. The examiner must conduct a complete psychological examination with any indicated testing and should identify each psychiatric disorder with which the Veteran is diagnosed. If the Veteran meets the criteria for a diagnosis of PTSD, the examiner should identify the stressor(s) upon which such diagnosis is based. For any other psychiatric disorder diagnosed, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that such disorder had its onset in or is otherwise related to service, to include the Veteran's report of a truck accident. A complete rationale should accompany any opinion provided. The physician is advised that the Veteran is competent to report symptoms and treatment, and that his reports must be taken into account in formulating the requested opinions. 5. After accomplishing the above development, schedule the Veteran for a VA examination as to the etiology of his right and left knee disabilities. All necessary tests should be conducted. The claims file must be sent to the examiner for review. For each knee, the examiner should first identify any current disability. Then, as to any such disability, the examiner should indicate whether it is at least as likely as not (50 percent probability or more) that the disability had its onset in or is otherwise related to service, to include the Veteran's report of a truck accident. The examiner should consider January 2010 VA treatment records and October 2005 x-rays showing degenerative joint disease of the left knee. A complete rationale should accompany any opinion provided. The physician is advised that the Veteran is competent to report symptoms and treatment, and that his reports must be taken into account in formulating the requested opinions. 6. Thereafter, the AOJ should readjudicate the claim on appeal. If the benefits sought are not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and provided an opportunity to respond before the case is returned to the Board. The Veteran has the right to submit additional evidence and argument on the matters 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). _________________________________________________ Jonathan Hager Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs