Citation Nr: 1751896 Decision Date: 11/14/17 Archive Date: 11/22/17 DOCKET NO. 14-05 324 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of service connection for a right knee disability. 2. Whether new and material evidence has been submitted to reopen a claim of service connection for a left knee disability. 3. Whether new and material evidence has been submitted to reopen a claim of service connection for a left wrist disability. 4. Whether new and material evidence has been submitted to reopen a claim of service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. Bayles, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from July 1983 to October 1986. This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision by the Milwaukee, Wisconsin Department of Veterans Affairs (VA) Regional Office (RO). In January 2017, a videoconference hearing was held before the undersigned; a transcript is in the record. While the RO reopened the claims of service connection for right and left knee disabilities and decided them on the merits, the Board must make its own determination as to whether new and material evidence to reopen the claims were received in order to establish its jurisdiction to review de novo the merits of previously denied claims. See Barnett v. Brown, 83 F. 3d 1380 (Fed. Cir. 1996); Jackson v. Principi, 265 F. 3d 1366 (Fed. Cir. 2001). The issues seeking service connection for right and left knee disabilities (on de novo review) are being REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if action on his part is required. FINDINGS OF FACT 1. An unappealed October 2009 rating decision denied the Veteran service connection for right and left knee disabilities based essentially on a finding that there was no diagnosis of such disabilities. 2. Evidence received since the October 2009 rating decision includes reports of X-rays that show degenerative changes in both knee joints; relates to an unestablished fact necessary to substantiate the claims of service connection for right and left knee disabilities; and raises a reasonable possibility of substantiating such claim. 3. An unappealed October 2009 rating decision denied the Veteran service connection for a left wrist disability based essentially on a finding that there was no evidence of such disability and that the Veteran's motor vehicle accident (MVA) in service was not in line of duty. 4. Evidence received since the October 2009 rating decision is cumulative or does not tend to show that the Veteran has a left wrist disability or that the MVA in service was in line of duty; does not relate to an unestablished fact necessary to substantiate the claim of service connection for a left wrist disability; and does not raise a reasonable possibility of substantiating such claim. 5. An unappealed October 2009 rating decision continued the denial of service connection for PTSD, based essentially on a finding that there was no diagnosis of PTSD. 6. Evidence received since the October 2009 rating is cumulative or does not tend to show that the Veteran has PTSD that is related to his service; does not relate to an unestablished fact necessary to substantiate the claim of service connection for PTSD; and does not raise a reasonable possibility of substantiating such claim. CONCLUSIONS OF LAW 1. New and material evidence has been received and the claims of service connection for right and left knee disabilities may be reopened. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2017). 2. New and material evidence has not been received, and the claim of service connection for a left wrist disability may not be reopened. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156(a)(2017). 3. New and material evidence has not been received, and the claim of service connection for PTSD may not be reopened. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156(a)(2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) VA's duty to notify was satisfied by a January 2011 letter. See 38 U.S.C. §§ 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159 (2015); see also Scott v. McDonald, 789 F. 3d 1375 (Fed. Cir. 2015). During the January 2017 Board hearing, the undersigned advised the Veteran of what is still needed to substantiate the claims (evidence that current claimed disabilities are related to service, new and material evidence to reopen the previously denied claims, and the definition of new and material); and his testimony reflects that he is aware of what is needed to substantiate the claims. Inasmuch as this decision grants in full the portion of the left and right knee disability claims that are being decided, there is no reason to belabor the impact of the VCAA on the matters, as any notice or duty to assist omission is harmless. The Veteran's service treatment records (STRs), service personnel records (SPRs), Social Security Administration (SSA) records and pertinent postservice treatment records have been secured. In a claim to reopen the duty to assist by arranging for an examination or securing a medical opinion does not arise unless the claim is in fact reopened. 38 C.F.R. § 3.159(c)(4)(iii). It has not been alleged that notice, including at the hearing, was less than adequate. Legal Criteria, Factual Background, and Analysis Initially, the Board notes that it has reviewed all of the evidence in the Veteran's record, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000)(VA must review the entire record, but does not have to discuss each piece of evidence.) Hence, the Board will summarize the relevant evidence, as deemed appropriate, and the Board's analysis will focus specifically on what the evidence shows, or does not show, as to the claims. Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7105. However, a claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 U.S.C. § 5108. "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). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003). Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). To substantiate a claim of service connection, there must be evidence of (1) a current disability (for which service connection is sought); (2) incurrence or aggravation of a disease or injury in service; and (3) a causal connection between the disease or injury in service and the current disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). A disorder first diagnosed after discharge may be service connected if all the evidence establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Lay evidence may be competent evidence to establish incurrence. See Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009). However, competent medical evidence is necessary where the determinative question is one requiring medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. Competent medical evidence may also include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159 (a)(2). The U.S. Court of Appeals for Veterans Claims (Court) has held that the requirement of new and material evidence raising a reasonable possibility of substantiating the claim is a low threshold. The Court interpreted the language of 38 C.F.R. § 3.156(a) and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding opening". See Shade v. Shinseki, 24 Vet. App. 110 (2010). Once the evidence is assembled, the Board is responsible for determining whether the preponderance of the evidence is against the claims. If so, the claim is denied; however, if the evidence is in support of the claim, or is in equal balance, the claim is allowed. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Right and left knee disabilities An October 2009 rating decision denied the Veteran service connection for right and left knee disabilities, based essentially on a finding that there was no evidence of such disabilities. He was informed of, and did not appeal, that decision, or submit new and material evidence within a year following the October 2009 decision, and it is final. 38 U.S.C. § 7105. The pertinent evidence of record at the time of the October 2009 rating decision included the Veteran's STRs, his statements, and postservice VA treatment records. Evidence received since the October 2009 rating decision includes VA treatment records through 2015, SSA records, and statements and testimony from the Veteran. The evidence received since the October 2009 rating decision was not before agency decision-makers at that time, is new, and directly addresses an unestablished fact necessary to substantiate the Veteran's claim of service connection for right and left knee disabilities. Specifically, SSA records received in March 2014 include an April 2010 report of medical examination that noted bilateral knee pain and reports of X-rays that showed degenerative changes in both knees. It was also noted that there may be a 3mm loose body posteriorly within the right knee joint. The additional evidence received shows the Veteran has right and left knee disabilities, satisfying the initial critical element necessary to substantiate a claim of service connection. Particularly in light of the "low threshold" standard for reopening endorsed by the Court in Shade, the evidence is both new and material, and that the claims of service connection for right and left knee disabilities must be reopened. De novo consideration of the claims is addressed in the remand below. Left wrist disability An October 2009 rating decision denied the Veteran service connection for a left wrist disability, based essentially on a finding that the evidence of record did not show a current diagnosis of a chronic left wrist condition which was incurred in line of duty during active military service. He was informed of, and did not appeal, that decision, or submit new and material evidence within a year following the October 2009 decision, and it is final. 38 U.S.C. § 7105. The pertinent evidence of record at the time of the October 2009 rating decision included the Veteran's STRs, his statements, postservice VA treatment records, and an October 2009 administrative decision. The Veteran's STRs note complaints of a left wrist injury in service. A July 1986 report of medical history notes an automobile accident in August 1986 when the Veteran injured his left wrist and spent two days in the hospital. However, a July 1986 report of medical examination did not note any left wrist complaints. There was no diagnosis of a left wrist disability in service. An August 1985 SPR notes that the Veteran was involved in a MVA with a bus, resulting in lacerations to his left wrist and forearm. X-rays were negative. A chemical analysis of the Veteran's blood showed a blood alcohol level to be 319 mg/dL (0.30-0.40). He was given a citation for unsafe movement and driving while intoxicated. A May 1986 report of investigation found the accident to not be in the line of duty but due to Veteran's misconduct. An unappealed October 2009 VA Administrative Decision determined that the injuries the Veteran sustained in the August 1985 accident were not incurred in the line of duty, but due to his misconduct. That administrative decision is a legal bar to service connection for a disability sustained in that MVA. [Under 38 U.S.C. § 105 and 38 C.F.R. § 3.301(d), an injury or disease incurred during active service shall not be deemed to have been incurred in the line of duty if such injury or disease was a result of the abuse of alcohol or drugs.] Evidence received since the October 2009 rating decision includes VA treatment records, SSA records, and lay statements from the Veteran. Because service connection for a left wrist disability was previously denied based on a finding that there was no current diagnosis of such disability and that a left wrist injury in-service was not incurred in the line of duty, for evidence to be new and material in this matter, it would have to pertain to those unestablished facts, i.e., tend to show that the Veteran has a left wrist disability and that it was incurred in line of duty. The Veteran's additional lay statements describing symptoms in service are cumulative, and not new, evidence. His reports of continuing complaints postservice likewise are also cumulative and not new evidence. March 2014 SSA records note an April 2010 report of medical examination. The Veteran reported intermittent numbness and tingling in his fingers and that it was difficult for him to hold tools. He reported that his left wrist has worsened since the 1985 MVA. The diagnosis was left wrist pain. This evidence is considered new, but not material, because the left wrist pain remains attributed by the Veteran to a MVA in service that is established to not have been in the line of duty. In summary, evidence received since October 2009 pertaining to the Veteran's left wrist disability is cumulative and not new. While it suggests he has worsening left wrist disability, it does not tend to show that it was incurred in line of duty, and therefore is not material. Accordingly, the Board must find that the additional evidence received since October 2009 is not material evidence that addresses an unestablished fact necessary to substantiate the claim (a diagnosis of a left wrist disability incurred in line of duty); does not raise a reasonable possibility of substantiating such claim; and is not new and material. Even the low threshold for reopening endorsed by the Court in Shade is not met, and the claim of service connection for a left wrist disability may not be reopened. PTSD An October 2009 rating decision denied the Veteran service connection for PTSD, based essentially on a finding that he was not shown to have a diagnosis of PTSD. He was informed of, and did not appeal, that decision, or submit new and material evidence within a year following the October 2009 decision, and it is final. 38 U.S.C. § 7105. The Veteran's STRs are silent for complaints, findings, treatment, or diagnosis of PTSD, or any other mental health condition. The pertinent evidence of record at the time of the October 2009 rating decision included the Veteran's STRs, his statements (specifically a February 2009 statement alleging that he has PTSD due to an auto accident on Fort Bragg in 1985), postservice VA treatment records, and an October 2009 administrative decision. An August 1985 SPR notes that the Veteran was involved in a MVA with a bus, resulting in lacerations to his left wrist and forearm. A chemical analysis of the Veteran's blood showed a blood alcohol level to be 319 mg/dL (0.30-0.40). He was given a citation for unsafe movement and driving while intoxicated. A May 1986 report of investigation found the accident to not be in line of duty, but due to Veteran's misconduct. An October 2009 VA Administrative Decision determined that the injuries the Veteran sustained in the August 1985 accident were not incurred in line of duty. The October 2009 Administrative Decision was not appealed, and is final. It is a legal bar to VA benefits based on the MVA in service. [Under 38 U.S.C. § 105 and 38 C.F.R. § 3.301(d), an injury or disease incurred during active service shall not be deemed to have been incurred in the line of duty if such injury or disease was a result of the abuse of alcohol or drugs.] February and March 1989 and March to September 2005 VA treatment records note treatment for depression and alcohol dependence. Additional VA treatment records note treatment for depression, PTSD (based on the Veteran's reported history), and alcohol abuse in remission. Evidence received since the October 2009 rating decision includes VA treatment records, SSA records, and lay statements from the Veteran. A February 2011 letter from the Veteran requested that VA obtain records from the Army Center for Substance Abuse Program at Fort Bragg for treatment received from November 1984 to March 1985. However, these records were considered in the prior rating decision and would not be new. Because service connection for PTSD was previously denied based on a finding that there was no current diagnosis of PTSD due to a stressor event in line of duty, for evidence to be new and material in this matter, it would have to tend to show that the Veteran has PTSD related to a stressor event in line of duty in service. The Veteran's reports that he was treated for alcohol abuse in service and has continuing complaints postservice, are cumulative and not new evidence. It was previously established that he was treated for alcohol abuse. March 2014 SSA records note an April 2010 mental assessment which did not include a diagnosis of PTSD. A June 2011 private treatment record notes that ongoing treatment for issues such as anxiety, GERD, and insomnia began in June 2008. PTSD was not diagnosed. The Veteran reported PTSD by history, based on a 1985 automobile accident in-service (which was not in line of duty). This evidence is cumulative and is not new. In summary, some of the evidence received since October 2009 pertaining to the Veteran's PTSD claim may be considered new to the extent that it was not in the record at the time of the October 2009 rating decision, but it is not material, as it does not show, or tend to show, a diagnosis of PTSD based on a stressor event in line of duty. Therefore, the Board must find that the additional evidence received since October 2009 is not material evidence that addresses an unestablished fact necessary to substantiate the claim of service connection for PTSD; does not raise a reasonable possibility of substantiating such claim; and is not material. Accordingly, the low threshold standard for reopening endorsed by the Court in Shade is not met, and the claim of service connection for PTSD may not be reopened. ORDER The appeal to reopen claims of service connection for right and left knee disabilities is granted. The appeal to reopen a claim of service connection for a left wrist disability is denied. The appeal to reopen a claim of service connection for PTSD is denied. REMAND On September 2013 VA knee examination, the Veteran reported that he injured both knees during a hard parachute landing during service in the1980's. He reported that he received treatment for the knees and was informed that he had torn cartilage in both knees based on an MRI. He reported that he has had knee pain since service and worked in construction. The examiner noted that there was no record of an MRI, and knee pain was not noted on service discharge, and opined that there was no medical evidence to support that the Veteran injured his knees in service or that he has had a knee disorder since service. The examiner concluded that the Veteran did not have a disability in either knee. March 2014 SSA records note an April 2010 report of medical examination. The provider noted that an X-ray of the right knee showed mild degenerative changes with fairly significant changes across the proximal tibiofibular articulation, and a left knee X-ray showed minimal degenerative changes. Because the opinion offered in September 2013 was premised in part on findings that the Veteran did not have knee disabilities (when in fact such disabilities were shown earlier by diagnostic studies), another examination to secure a medical advisory opinion that considers accurate evidence is necessary. The Veteran appears to be receiving ongoing VA treatment for his left and right knee disabilities, and that the most recent records of such treatment associated with the record are dated in March 2015. Updated records of such treatment may contain pertinent information, are constructively of record, and must be secured. Accordingly, the case is REMANDED for the following: 1. The AOJ should secure for the record all updated records (i.e., those not already in the record) of VA evaluations or treatment the Veteran has received for the disabilities remaining on appeal, specifically including all such records dated since March 2015. 2. The AOJ should thereafter arrange for an orthopedic examination of the Veteran to ascertain the nature, and likely etiology of his claimed right and left knee disabilities. The examiner must review the entire record in conjunction with the examination, and any tests or studies deemed necessary must be completed. Based on a review of the record and examination of the Veteran, the examiner should provide opinions that respond to the following: a. Please identify (by diagnosis) each right and left knee disability entity found. Any diagnostic findings (or lack thereof) should be reconciled with all conflicting findings in the record (including the April 2010 examination report noting X-ray established degenerative changes in both knees and the September 2013 examination report finding no disability in either knee). b. Regarding each right and left knee disability entity diagnosed, please opine whether it is at least as likely as not (a 50 % or better probability) that such is related to the Veteran's military service (to include as due to parachute jump landings therein). All opinions must include rationale. 3. The AOJ should then review the record and readjudicate the remaining claims. If either remains denied, the AOJ should issue an appropriate supplemental statement of the case, afford the Veteran and his representative opportunity to respond, and return the record to the Board. The appellant has the right to submit additional evidence and argument on the 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 for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs