Citation Nr: 1754450 Decision Date: 11/29/17 Archive Date: 12/07/17 DOCKET NO. 13-16 914 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for degenerative joint disease of the right knee. 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for post-traumatic stress disorder (PTSD). 3. Entitlement to a disability evaluation greater than 20 percent for right wrist distal neuropathy prior to May 26, 2016, and greater than 70 percent thereafter. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD R. Janofsky, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1979 to December 1982. This matter comes before the Board of Veterans' Appeals (Board) from December 2011 and November 2013 rating decisions by the Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran testified before the undersigned Veterans Law Judge during a December 2016 video hearing. A transcript of this proceeding is associated with the claims file. The Board notes that additional evidence was associated with the claims file after the most recent supplemental statements of the case (SSOCs) were issued. However, the representative indicated in correspondence received in August 2017 that the Veteran wished to waive initial review of all additional evidence by the agency of original jurisdiction (AOJ). The issue of entitlement to service connection for PTSD is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. In a July 2008 rating decision, the RO denied entitlement to service connection for a right knee condition. The Veteran did not file a notice of disagreement or submit new and material evidence within one year, and the decision became final. 2. Evidence received since the July 2008 rating decision is new and material to the right knee claim because it is not cumulative or redundant of the evidence of record at the time of the prior rating decision, and raises a reasonable possibility of substantiating the Veteran's claim. 3. The Veteran's right knee disability is not the result of an injury or disease incurred in or aggravated by active military service; and right knee degenerative joint disease was not shown during or within one year of service. 4. In a March 2013 rating decision, the RO denied entitlement to service connection for PTSD. The Veteran did not file a notice of disagreement or submit new and material evidence within one year, and the decision became final. 5. Evidence received since the March 2013 rating decision is new and material to the PTSD claim because it is not cumulative or redundant of the evidence of record at the time of the prior rating decision, and raises a reasonable possibility of substantiating the Veteran's claim. 6. In a December 2016 written and signed statement, and on the record during a Board hearing, prior to the promulgation of a decision in this appeal, the Veteran expressly stated that he wished to withdraw his appeal as to the issue of entitlement to a disability evaluation greater than 20 percent for right wrist distal neuropathy prior to May 26, 2016, and greater than 70 percent thereafter. CONCLUSIONS OF LAW 1. The July 2008 rating decision is final. 38 U.S.C. §§ 7104, 7105 (West 2012); 38 C.F.R. §§ 3.104, 3.156, 20.302 (2017). 2. The criteria for reopening the claim of entitlement to service connection for a right knee condition have been met. 38 U.S.C. §§ 5103A, 5108 (West 2012); 38 C.F.R. § 3.156 (2017). 3. The criteria for service connection for a right knee disability have not been met. 38 U.S.C. §§ 1110, 1154, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2017). 4. The March 2013 rating decision is final. 38 U.S.C. §§ 7104, 7105 (West 2012); 38 C.F.R. §§ 3.104, 3.156, 20.302 (2017). 5. The criteria for reopening the claim of entitlement to service connection for PTSD have been met. 38 U.S.C. §§ 5103A, 5108 (West 2012); 38 C.F.R. § 3.156 (2017). 6. The criteria for the withdrawal of the appealed issue of entitlement to a disability evaluation greater than 20 percent for right wrist distal neuropathy prior to May 26, 2016, and greater than 70 percent thereafter have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (West 2012); 38 C.F.R. § 20.204 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's VA files. In every decision, the Board must provide a statement of the reasons or bases for its determination, adequate to enable an appellant to understand the precise basis for the Board's decision, as well as to facilitate review by the Court. 38 U.S.C. § 7104(d)(1); see Allday v. Brown, 7 Vet. App. 517, 527 (1995). Although the entire record must be reviewed by the Board, the Court has repeatedly found that the Board is not required to discuss, in detail, every piece of evidence. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (rejecting the notion that the Veterans Claims Assistance Act mandates that the Board discuss all evidence). Rather, the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake, supra. Pertinent regulations for consideration were provided in the statement of the case and will not be repeated here in full. The Board finds that the criteria to reopen both the right knee and the PTSD claims have been met. However, the right knee claim must be denied on the merits and the PTSD claim must be remanded for further development for the reasons discussed below. The issue of entitlement to a disability evaluation greater than 20 percent for right wrist distal neuropathy prior to May 26, 2016, and greater than 70 percent thereafter has been withdrawn. I. Reopening Service Connection for a Right Knee Condition In a July 2008 rating decision, the RO denied entitlement to service connection for a right knee condition. The RO found there was no evidence of a chronic condition subject to service connection. Moreover, the RO found that, although service treatment records showed complaints of right knee pain, the condition was noted to have resolved. Also, the RO found that there was no medical evidence submitted showing a current right knee diagnosis or current treatment. The Veteran did not file a notice of disagreement or submit new and material evidence within one year, and the rating decision became final. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104, 3.156, 20.302. The preliminary question of whether a previously denied claim should be reopened is a jurisdictional matter that must be addressed before the Board may consider the underlying claim on its merits. Barnett v. Brown, 8 Vet. App. 1, 4 (1995), aff'd, Barnett v. Brown, 83 F.3d 130 (Fed. Cir. 1996). The initial question before the Board, therefore, is whether new and material evidence has been received, regardless of how the RO characterized the issue. 38 C.F.R. § 3.156(a) provides: A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decisionmakers. 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. Credibility must be presumed in petitions to reopen. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Newly submitted evidence may be material if it provides a more complete picture of the circumstances surrounding the origin of the Veteran's disability, even if it would not be enough to convince the Board to grant a claim. See Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998). The Board finds that, in this case, new and material evidence has been received to reopen the claim of entitlement to service connection for a right knee condition. Since the July 2008 rating decision, VA has obtained a 2011 VA examination report showing current diagnoses for the Veteran's right knee condition, including degenerative joint disease. Also, the Veteran's 2016 Board hearing testimony and other statements claim that he has experienced right knee symptoms since service. Such statements also provide a more complete picture of the circumstances surrounding the origin of his right knee disability, namely the specific details of an in-service right knee injury. Assuming the credibility of such testimony and lay statements under Justus, they suggest continuity of right knee symptomatology since service. As the evidence discussed above was not previously submitted to agency decision makers and relates to unestablished facts necessary to substantiate the claim, the Board finds that the additional evidence is new and material to reopen the Veteran's claim for service connection for a right knee condition. See 38 C.F.R. § 3.156. For the reasons discussed below, the appeal is granted to this extent only. Since the RO also adjudicated this claim on the merits, the Board will proceed. See June 2016 supplemental statement of the case. II. Service Connection for a Right Knee Condition The Veteran claims service connection for a right knee disability. Specifically, during the Board hearing, he suggested that his right knee condition was associated with a right knee injury during service due to his work as a member of a bridge platoon and an incident involving unstacking bulk metal. As discussed above, he also has suggested that he has had right knee symptoms since service. Initially, the Board concedes the presence of a current right knee disability, to include degenerative joint disease. See, e.g., 2011 VA examination report. However, after a full review of the record, the Board finds that the claim must be denied. The most competent, persuasive evidence is against a finding that the Veteran's current right knee condition is related to service. The Board finds that the Veteran is not entitled to service connection on a presumptive basis for right knee degenerative joint disease for the following reasons. First, there is no medical evidence of record that a right knee condition manifested to a compensable degree within one year of service. Indeed, the earliest post-service treatment records referencing knee complaints and treatment were VA treatment records from 2000, almost two decades after service. Second, the Board recognizes that the Veteran's service treatment records included references to right knee complaints and treatment. Specifically, an October 1981 note shows reports of right knee complaints and unresolved right knee ligament strain, as well as reports that he had hurt his right knee after lifting heavy steel, after which he fell and heard something "pop." His treatment plan included crutches, use of a whirlpool, and light duty for three days. However, no diagnosis of right knee arthritis was noted then. The Board finds that, to the extent that service treatment records noted complaints of and treatment for a right knee condition, these were acute, isolated findings. See 38 C.F.R. § 3.303(b) ("For the showing of a chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings...") (emphasis added). The 2011 VA examination report, which is discussed further below and to which the Board affords great weight, supports this finding. Third, the evidence of record refutes any contention of continuity of right knee symptoms since service. The Board recognizes various lay statements reporting continuous right knee symptoms since service. See, e.g., December 2016 hearing testimony. However, the Board does not find such assertions credible. Indeed, in the Veteran's separation report of medical history, he affirmatively reported "no" to a question regarding whether he had a "trick" or locked knee; although he elaborated in that form regarding another in-service "accident," he made no reference to his in-service treatment or symptoms for right knee strain. The Veteran acknowledged during the 2016 Board hearing that when he was discharged, nothing was said regarding his knees. Also, the first documented reports of right knee complaints were in 2000 VA treatment records. Notably, the Veteran did not attribute his right knee symptoms to service in any way at that time. To the contrary, a March 2000 VA treatment record references his history of a right knee surgery after a motor vehicle accident. Moreover, a July 2011 VA treatment record noted the Veteran's statement that he had experienced bilateral knee pain for about five to ten years (i.e., since the early or mid-2000s), which was many years after service. He also reported then that he was struck by a car twice in the past, and that he attributed his current symptoms to those incidents. Moreover, the Veteran reported to the 2011 VA examiner that his in-service right knee condition had resolved within a few months, and he recalled no residual right knee pain or symptoms at the time of discharge in 1982. To the contrary, he reported right knee pain since 1985 and 1990 vehicle/pedestrian accidents in which he was struck by moving vehicles. The Veteran also testified that he did not seek treatment between service separation and his first post-service accident involving a motor vehicle. Such inconsistent statements regarding the duration, onset, and alleged cause of his current right knee symptoms weigh heavily against a finding of continuity of right knee symptomatology since service. In summary, the weight of the evidence does not show that the Veteran's current right knee degenerative joint disease began in service or manifested within one year of service; nor does it support a finding of continuity of symptomatology since service. Service connection is therefore not warranted on a presumptive basis. 38 C.F.R. §§ 3.303(b), 3.307, 3.309. Nor is the Veteran entitled to service connection for the right knee condition on a direct basis. There is no competent, persuasive evidence of record linking that condition to service. The Board finds the 2011 negative VA medical opinion to be of great probative value. Indeed, the examiner's conclusions were supported by medical rationales and were consistent with the verifiable facts regarding the Veteran's condition. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 -04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value to a medical opinion). The examiner thoroughly and accurately considered the Veteran's medical history and examination results before competently and persuasively concluding that the right knee condition was less likely than not incurred in or caused by the claimed in-service injury. The examiner explained that the Veteran's October 1981 service treatment records documented right knee treatment for lateral knee swelling and pain. However, during the 2011 VA examination, the Veteran had tenderness to palpation along the medial knee. Thus the examiner expressly found that the current physical examination findings were not consistent with the physical examination findings noted in the service treatment records. Moreover, the examiner noted that the Veteran reported resolution of his in-service right knee symptoms within a few months of the injury. The Veteran also reported two subsequent right knee injuries due to getting hit by moving vehicles in 1985 and 1990. He reported persistent right knee symptoms since those two accidents. The examiner reasoned that the current right knee condition was most likely due to the post-service injuries sustained in 1985 and 1990 after being struck by moving vehicles, which involved significant, forceful impact and resulted in surgery, physical therapy, and residual pain. In contrast, there was no documentation of residual right knee symptoms following the in-service right knee injury. The examiner also noted the diagnoses of right knee traumatic injury due to being struck by moving vehicles in 1985 and 1990, and the 1981, acute right knee sprain, completely resolved without chronic residuals. The Board recognizes the Veteran's contentions that he currently has a right knee disability related to service. Although he is competent to testify as to events that occurred in military service and orthopedic symptoms such as pain, he is not competent to conclude that his current right knee condition is related to service because such musculoskeletal issues are not susceptible to lay opinions on etiology. Therefore, the Board finds that the Veteran's statements of record cannot be accepted as competent evidence sufficient to establish service connection for a right knee disability. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board observes than a Social Security Administration (SSA) evaluator found the Veteran partially credible. However, the Board is not bound by SSA findings because that agency applies different legal criteria that are not pertinent to service connection claims and not binding on VA. The Board also finds the Veteran's statements not credible due to the inconsistencies discussed in detail above. In summary, service connection for a right knee disability is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Finally, 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). Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R.§ 3.103(c)(2), and neither has identified any prejudice in the conduct of the Board hearing. As the issue has not been raised, there is no need for the Board to discuss compliance with Bryant v. Shinseki, 23 Vet. App. 488 (2010). See Dickens, supra. III. Reopening Service Connection for PTSD In a March 2013 rating decision, the RO denied the claims of entitlement to service connection for PTSD, alcohol dependence claimed as depression, and bipolar disorder. The RO also confirmed and continued a previous denial of entitlement to service connection for major depressive disorder with psychotic symptoms. Regarding the PTSD claim, the RO explained that the claim was denied due to the lack of medical evidence of a PTSD diagnosis under 38 C.F.R. § 4.125(a). The Veteran did not file a notice of disagreement or submit new and material evidence within one year, and the March 2013 rating decision became final. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104, 3.156, 20.302. Instead, in April 2013, the Veteran filed a fully developed claim form with an express petition to reopen the PTSD, bipolar disorder, major depressive disorder with psychotic symptoms claims, in pertinent part. Those claims were denied in the November 2013 rating decision currently on appeal. A notice of disagreement received in November 2013 challenged the November 2013 rating decision, but expressly regarding the PTSD claim only, so it cannot reasonably be construed as encompassing disagreement with the denial of the remaining psychiatric claims. Moreover, the Board finds that the RO correctly treated the Veteran's April 2013 PTSD claim as a distinct claim from the petition to reopen the previously denied major depressive disorder claim. The July 2008 final rating decision was expressly limited in scope to only depression and "memory loss." Moreover, lay evidence of record suggests that the depression and PTSD claims have been described by the Veteran as discrete conditions without overlapping symptomatology. Also, medical evidence of record shows that these conditions were diagnosed initially at different times and generally treated by mental health clinicians as distinct conditions with different symptomatology. See Velez v. Shinseki, 23 Vet. App. 199, 204 (2009). Accordingly, for purposes of the petition to reopen analysis, the relevant time period is evidence received since the March 2013 rating decision originally denying entitlement to service connection for PTSD, as opposed to the July 2008 rating decision originally denying entitlement to service connection for depression and memory loss. The Board incorporates by reference the legal authorities governing new and material evidence claims discussed in detail above. The Board finds that, in this case, new and material evidence has been received to reopen the claim of entitlement to service connection for PTSD. Since the March 2013 rating decision, a May 2016 VA examination has been associated with the record. The examiner found that, to a reasonable degree of psychological certainty, the Veteran has PTSD, chronic, mild, caused by being cut with a knife and bleeding severely while in Japan in 1981. The examiner noted that although some of the Veteran's PTSD symptoms such as anxiousness around people and lack of trust were present before service, they were at least as likely as not worsened by the Japan incident. The examiner's PTSD diagnosis and the Veteran's reports to the examiner regarding his claimed in-service stressor during his Japan service (which must be presumed credible under Justus) raise a reasonable possibility of substantiating the claim. Moreover, since the March 2013 rating decision, the new evidence includes the Veteran's hearing testimony and other statements asserting that his PTSD is due to the claimed in-service stressors of a right wrist injury in Japan and a scrotal injury in North Carolina. These statements and the Veteran's hearing testimony (which must be presumed credible under Justus) provide a more complete picture of the circumstances surrounding the origin of his disability. As the evidence discussed above was not previously submitted to agency decision makers and relates to unestablished facts necessary to substantiate the claim, the Board finds that the additional evidence is new and material to reopen the Veteran's claim for service connection for PTSD. See 38 C.F.R. § 3.156. The appeal is granted to this extent only, and this issue must be remanded for the reasons discussed further below in the REMAND section. IV. Withdrawn Issue The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105 (West 2014). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2016). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. Here, in a December 2016 statement and in Board hearing testimony, the Veteran withdrew the appealed issue of entitlement to a disability evaluation greater than 20 percent for right wrist distal neuropathy prior to May 26, 2016, and greater than 70 percent thereafter. Thus, there remain no allegations of errors of fact or law for appellate consideration as to that issue. Accordingly, the Board does not have jurisdiction to review that issue, and it is dismissed. ORDER As new and material evidence has been received to reopen the claim of entitlement to service connection for a right knee disability, the claim is reopened. To that extent only, the appeal is granted. Service connection for a right knee disability is denied. As new and material evidence has been received to reopen the claim of entitlement to service connection for PTSD, the claim is reopened. To that extent only, the appeal is granted. The appealed issue of entitlement to a disability evaluation greater than 20 percent for right wrist distal neuropathy prior to May 26, 2016, and greater than 70 percent thereafter, is dismissed. (CONTINUED ON NEXT PAGE) REMAND In this case, VA's duty to assist in the development of the claim of entitlement to service connection for PTSD has not been satisfied. Therefore, a remand is necessary for further development. The Veteran seeks entitlement to service connection for PTSD in part based upon a claimed in-service stressor involving a personal assault during his Japan service. He contends that this incident arose from an attack at a bar during leave involving the stabbing of his right wrist. He asserts that the wound was life-threatening, resulted in loss of consciousness, and required several blood transfusions, as well as surgery and extensive rehabilitation. This claimed in-service stressor has been linked to his current PTSD symptoms (see 2016 VA examination report), but its occurrence has not been verified. Additional, relevant treatment records that may verify this claimed in-service stressor likely exist but have not been obtained. Specifically, the Veteran has stated that he was hospitalized at the U.S. Naval Hospital in Yokosuka, Japan as a result of this right wrist wound. This assertion is corroborated by his own contemporaneous reference to this hospitalization in his separation report of medical history. While the service treatment records currently in the claims file contain some records referencing this injury, relevant records from the Yokosuka Naval Hospital, which may verify this claimed in-service stressor, have not yet been obtained. Also, the Board notes that, unfortunately, several service treatment records currently in the claims file are illegible (although they are marked with the "best copy" stamp). Some of these partially illegible records reference in-service treatment for a right wrist tendon injury. At this time, given the poor quality of these scanned service treatment records, it is not possible for the Board to verify the circumstances of the claimed in-service stressor arising from this injury, including the contentions that this was a severe, life-threatening injury that arose from a personal assault (as opposed to an accident). Accordingly, upon remand, the RO must attempt to locate the Veteran's complete, original service treatment records and have them legibly re-scanned into the electronic claims file. Moreover, the 2016 VA examiner referenced an "Article 15" involving marijuana use in service. However, it does not appear that the Veteran's complete service personnel records, including those pertaining to specific disciplinary actions, are of record. Upon remand, the RO must attempt to obtain the Veteran's complete service personnel records, to include records regarding all disciplinary actions, from all appropriate sources. Such evidence of in-service substance abuse and consequent disciplinary actions may verify the Veteran's PTSD claim under 38 C.F.R. § 3.304(f)(5) to the extent that the claim is based upon an in-service personal assault. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file all outstanding VA treatment records dated from 2013 to the present from the Denver VA medical system. 2. Obtain and associate with the claims file all outstanding in-patient hospitalization records from June to July 1982 from the U.S. Naval Hospital in Yokosuka, Japan. Document all attempts to obtain these records, including any negative responses. 3. Locate the Veteran's complete, original service treatment records and arrange for them to be legibly re-scanned into the electronic claims file. Document all such attempts and communications with the scanning contractor, including any negative responses. 4. Obtain and associate with the claims file all outstanding service personnel records, including all records pertaining to disciplinary actions and "Article 15s." Document all attempts to obtain these records, including any negative responses. 5. After completing the above and any other development deemed necessary, readjudicate the Veteran's claim based on the entirety of the evidence. If the benefits sought on appeal are not granted to the Veteran's satisfaction, he and his representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. The case should then be returned to the Board for further consideration, if otherwise in order. 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). ______________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs