Citation Nr: 1745527 Decision Date: 10/12/17 Archive Date: 10/19/17 DOCKET NO. 16-13 074 ) 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 of entitlement to service connection for a right knee disability. 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a left knee disability, claimed as degenerative joint disease with meniscal tear. 3. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a psychiatric disability, claimed as dysthymic disorder and mood disorder with depressive features. 4. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a back disability. 5. Entitlement to service connection for a back disability. 6. Entitlement to service connection for a psychiatric disability, claimed as dysthymic disorder and mood disorder with depressive features, to include as secondary to service-connected back condition. WITNESS AT HEARING ON APPEAL Veteran ORDER As new and material evidence has not been received, the claim of entitlement to service connection for a right knee disability and the appeal is denied. As new and material evidence has not been received, the claim of entitlement to service connection for a left knee disability, claimed as degenerative joint disease with meniscal tear and the appeal is denied. New and material evidence to reopen a claim of entitlement to service connection for a psychiatric disability, claimed as dysthymic disorder and mood disorder with depressive features has been received; the appeal is granted to this extent. New and material evidence to reopen a claim of entitlement to service connection for a back disability has been received; the appeal is granted to this extent. Service connection for a back disability is granted. FINDINGS OF FACT 1. In a final decision issued in April 2013, the RO denied the Veteran's claim of entitlement to service connection for a right knee disability and a left knee disability, claimed as degenerative joint disease with meniscal tear. 2. Evidence added to the record since the April 2013 denial is duplicative, cumulative, and redundant of the evidence of record at the time of the decision and does not raise a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for a right knee disability or a left knee disability, claimed as degenerative joint disease with meniscal tear. 3. In a final decision issued in April 2013, the RO denied the Veteran's claim of entitlement to service connection for a psychiatric disability, claimed as dysthymic disorder and mood disorder with depressive features. 4. The evidence received since the April 2013 decision is new and raises a reasonable possibility of substantiating the claims of entitlement to service connection for a psychiatric disability, claimed as dysthymic disorder and mood disorder with depressive features. 5. In a decision issued in December 2012, the Board denied the Veteran's claim of entitlement to service connection for a back disability. 6. The evidence received since the December 2012 decision is new and raises a reasonable possibility of substantiating the claim of entitlement to service connection for a back disability. 7. Resolving all doubt in favor of the Veteran, his back disability had its onset during active duty service. CONCLUSIONS OF LAW 1. New and material evidence has not been added to the record since the April 2013 rating decision; thus, the claims of entitlement to service connection for a right knee disability and a left knee disability are not reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2014); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2016). 2. New and material evidence has been added to the record since the April 2013 rating decision; thus, the claim of entitlement to service connection for a psychiatric disability, claimed as dysthymic disorder and mood disorder with depressive features is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2014); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2016). 3. New and material evidence has been added to the record since the December 2012 Board decision; thus, the claim of entitlement to service connection for a back disability is reopened. 38 U.S.C.A. §§ 5108, 7104 (West 2014); 38 C.F.R. §§ 3.156, 20.1100 (2016). 4. The criteria for service connection for a back disability have been met. 38 U.S.C.A. §§ 1110, 1112, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.304 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from April 1966 to April 1970. This appeal to the Board of Veterans' Appeals (Board) is from an August 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The claim for service connection for a back disability was previously denied by the Board in a December 2012 decision. The claims for service connection for dysthymic disorder and mood disorder with depressive features, a right knee disability, and degenerative joint disease with meniscal tear of the left knee were previously denied in an April 2013 rating decision that became a final and binding determination. In the August 2015 rating decision that was appealed, the RO reopened two of those claims (referable to the back and right knee) and denied them on their underlying merits after a de novo review of the evidence. Further, in the March 2016 Statement of the Case (SOC), it appears the RO reopened all four of the appealed claims and denied them on their underlying merits. But despite the RO's determinations, the Board must independently consider whether new and material evidence has been presented to reopen these claims, because it goes to the Board's jurisdiction to reach the underlying claims and adjudicate them on their merits. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). These claims have been characterized accordingly. The Board remanded the claims in May 2017 to provide the Veteran with a hearing. The hearing was held before the undersigned in August 2017. The transcript is of record. Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014). The issue of entitlement to service connection for a psychiatric disorder is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). New and Material Evidence A decision of the RO becomes final and is not subject to revision on the same factual basis unless a notice of disagreement is filed within one year of the notice of decision. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 20.302, 20.1103 (2016). Generally, a final Board decision may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. A. § 7104 (b) (West 2014). 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) (2016). VA must review all of the evidence submitted since the last final rating decision in order to determine whether the claim may be reopened. See Hickson v. West, 12 Vet. App. 247, 251 (1999). 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); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). The Veteran's claim of entitlement to service connection for a back condition was denied by an April 2007 rating decision and again in a December 2012 Board decision. The Veteran's claim of entitlement to service connection for a back condition was previously denied because, while there was evidence of in-service injury and a current diagnosis of degenerative joint disease of the lumbar spine, there was no nexus found between the in-service injury and the current disability. The claims of entitlement to service connection for a psychiatric disability, claimed as dysthymic disorder and mood disorder with depressive features, a right knee disability, and a left knee disability were denied by an April 2013 rating decision. The RO denied the psychiatric disorder claim because there was no evidence of an in-service event or of a nexus between the current disability and service. The RO denied the Veteran's claim of entitlement to service connection for a right knee condition because there was no evidence of a current disability or of an in-service injury. Finally, the Veteran's claim of entitlement to service connection for a left knee condition was denied because there was no link found between the Veteran's current disability and service. The RO notified the Veteran of its decision, and of his appellate rights. The Veteran did not perfect a formal appeal of the rating decision. 38 C.F.R. § 3.156(b) (2016). As a result, the rating decisions became final. 38 U.S.C.A. §§ 7105 (West 2014); 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103 (2016). Accordingly, the claims may now be considered on the merits only if new and material evidence has been received since the time of the prior adjudication. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156(a) (2016); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). The Veteran filed a request to reopen the claims for entitlement to service connection for a back condition, for a psychiatric disability, claimed as dysthymic disorder and mood disorder with depressive features, a right knee disability, and a left knee disability in July 2015. As noted above, it appears that the RO reopened all of the claims in the March 2016 SOC. Regardless of whether the RO reopened the Veteran's claims for service connection, the Board must decide the threshold issue of whether the evidence is new and material before addressing the merits of a claim. See Jackson v. Principi, 265 F. 3d 1366 (Fed. Cir. 2001); Barnett, 83 F.3d at 1380. Bilateral Knees The relevant evidence added to the record since the last final denial includes the August 2017 hearing transcript and the Veteran's claim, notice of disagreement, and VA Form 9. This evidence is new as it was not previously associated with the file. However, he has not asserted anything specifically that relates his current knee disabilities to service. Thus, the additional evidence is cumulative of previously-submitted evidence; and it does not meet the regulatory definition of new and material evidence under 38 C.F.R. § 3.156(a). Accordingly, the Board determines that the additional evidence received since the April 2013 rating decision is not new and material as it is cumulative and redundant of the facts previously established by the record and thus provides no basis to reopen the claim of service connection for a right knee disability or a left knee disability. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). Back disability The relevant evidence added to the record regarding the Veteran's claim of entitlement to service connection for a back disability includes two statements from Dr. H. The statements, received in July 2015 and March 2016, both related the Veteran's current back condition to his period of service, to include his complaints of back pain therein. The new evidence also includes a statement from the Veteran's mother and the Veteran's testimony at his August hearing. The Veteran's mother reported that the Veteran's back problems began in service and that she noted he was in so much back pain when she visited him in 1970 that he had to lie down in the backseat while they were driving. The Veteran testified that his back pain continued after service to present. In this case, the evidence obtained since the last final denial is new, as it was not previously associated with the record. It is also material because it raises a reasonable possibility of substantiating the claims and supports the nexus element. Specifically, the evidence indicates the Veteran's back disability may be related to his period of active service. In this case, the statement by Dr. H, the statement from the Veteran's mother, and the Veteran's testimony is deemed to be the requisite new and material evidence needed to reopen the claim of service connection for a back disability. Psychiatric Disorder The relevant evidence added to the record regarding the Veteran's claim of entitlement to service connection for a psychiatric disorder includes his and his mother's statements that his psychiatric disorder is related to his back disability and to the discrimination he experienced in service. The Veteran and his mother have both contended that he has suffered from psychiatric symptoms since service. The VA treatment records show that he has been treated for psychiatric symptoms. Further, this Board decision has granted the Veteran's claim of entitlement to service connection for a back disability. The Court has held that a new etiological theory does not constitute a new claim. Velez v. Shinseki, 23 Vet. App. 199 (2009); Ashford v. Brown, 10 Vet. App. 120, 123 (1997); Roebuck v. Nicholson, 20 Vet App 307 (2006). However, while a new theory of entitlement cannot be the basis to reopen a claim under 38 USCA 7104 (b), if the evidence supporting a new theory of entitlement constitutes new and material evidence, then VA must reopen the claim under section 5108. Boggs v. Peake, 520 F.3d 1330, 1336-37 (Fed. Cir. 2008). Additionally, the Court of Appeals for Veterans Claims has held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist. Shade v. Shinseki, 24 Vet. App. 110 (2010). In this case, the evidence obtained since the last final denial is new, as it was not previously associated with the record. The evidence from the Veteran and his mother that link his current psychiatric disorder to his back disability and to service is also material as it raises a reasonable possibility of substantiating the claim by supporting the nexus element of service connection, which was not met at the time of the previous denial. This evidence also triggers the Secretary's duty to assist. Therefore, this evidence is deemed to be the requisite new and material evidence needed to reopen the claim of entitlement to service connection for a psychiatric disorder. Service Connection Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C.A. 1110, 1131 (West 2014); 38 C.F.R. 3.303(a) (2016). Service connection may be established for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that disease was incurred in service. 38 C.F.R. § 3.303(d) (2016). Generally to establish entitlement to service connection, a Veteran must show evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a causal relationship between the current disability and an in-service injury or disease. All three elements must be proved. See generally Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C.A. § 5107(b). In the present case, the Veteran has a current diagnosis of a back condition as evidenced by the VA treatment records and the Veteran's private physician's statement. The Veteran has been diagnosed with narrowing and retrolisthesis at the L4-5 disc space, some arthritic changes involving the L4 and L5 vertebral bodies, lumbar spondylosis, sciatica, lumbago, sacroiliac dysfunction, and herniated nucleus pulposus. The Board therefore finds that the evidence demonstrates a current diagnosis, meeting the first requirement for the establishment of service connection. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The Veteran was treated for back pain in service, according to his service treatment records. The service treatment records show that he was treated for back pain in September 1966, April 1968, July 1968 after a fall, August 1968, September 1969, October 1969, and January 1970. In addition, the Veteran's mother has submitted a statement indicating that she witnessed the Veteran in pain during his period of service. Thus, the Board finds that the occurrence of the in-service event is established, and the second element of service connection is met. See Shedden, 381 F.3d at 1166-67. The question then becomes whether a nexus, or relationship, between the Veteran's current disability and the in-service symptoms has been shown. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Turning to the question of whether there is a nexus, or link, between the current shown disability and service, the evidence is at least in equipoise as to whether the Veteran's back disability had its onset in service. A March 2011 VA examination and opinion found that there was no nexus between the Veteran's current back disability and service. Thereafter, the Veteran's private physician, an orthopedic spine surgeon, submitted two statements indicating that the Veteran's current back condition is most likely caused by or a result of service, to include the Veteran's fall in July 1968. The Board recognizes that the RO determined that the physician's statements were not credible based on what the RO deemed to be incorrect dates cited in the statements. However, the Board has reviewed the service treatment records and, as noted above, determined that the Veteran did seek treatment for back pain repeatedly throughout service from 1966 to 1970. Thus, the Board finds that this evidence is competent and credible. Therefore, considering the Veteran's credible assertions of symptomatology of back pain since service and the positive nexus opinion provided by the Veteran's private physician, the Board is satisfied that the criteria for entitlement to service connection for a back disability have been met. Reasonable doubt has been resolved in favor of the Veteran in this matter. 38 U.S.C.A. § 5107 (b) (West 2014); 38 C.F.R. § 3.102 (2016). REMAND As noted above, the Veteran and his mother have provided testimony and statements that link his psychiatric disorder to his now service-connected back disability. This evidence has triggered VA's duty to assist the Veteran by providing him an examination and nexus opinion. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Afford the Veteran an appropriate VA examination to determine the nature, onset, and etiology of the Veteran's psychiatric disorder, claimed as dysthymic disorder and mood disorder with depressive features. The entire claims file and a copy of this Remand must be made available to the examiner and the examiner shall indicate in the report that the claims file was reviewed. Any tests or studies deemed necessary should be conducted, and the results should be reported in detail. Is it at least as likely as not (50 percent or greater probability) that the Veteran's psychiatric disorder, claimed as dysthymic disorder and mood disorder with depressive features is caused by, related to, or aggravated by the Veteran's period of active duty service or his service-connected back disability? The examiner is asked to specifically consider and discuss the Veteran's and his mother's assertions that his back disability caused or aggravated his psychiatric disorder, claimed as dysthymic disorder and mood disorder with depressive features. All opinions should be supported by a clear rationale, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If it is not possible to provide the requested opinion without resort to speculation, the examiner should state why speculation would be required in this case (e.g., if the requested determination is beyond the scope of current medical knowledge, actual causation cannot be selected from multiple potential causes, etc.). If there are insufficient facts or data within the claims file, the examiner should identify the relevant testing, specialist's opinion, or other information needed to provide the requested opinion. 2. Thereafter, readjudicate the issue of entitlement to service connection for a psychiatric disorder, claimed as dysthymic disorder and mood disorder with depressive features. If any benefit is not granted, the Veteran should be furnished with a supplemental statement of the case, with a copy to his representative, and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration. The appellant 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). 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). ______________________________________________ TANYA SMITH Veterans Law Judge, Board of Veterans' Appeals ATTORNEY FOR THE BOARD B. Muetzel, Counsel Copy mailed to: Disabled American Veterans Department of Veterans Affairs