Citation Nr: 1803366	
Decision Date: 01/18/18    Archive Date: 01/29/18

DOCKET NO.  16-25 957	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Seattle, Washington


THE ISSUES

1.  Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a left knee disability.

2.  Entitlement to service connection for a left knee disability. 

3.  Entitlement to an increased rating for posttraumatic stress disorder (PTSD), rated 30 percent as of May 19, 2011, and rated 50 percent as of August 5, 2013.

4.  Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU).


REPRESENTATION

Appellant represented by:	Disabled American Veterans



WITNESSES AT HEARING ON APPEAL

Appellant and Spouse


ATTORNEY FOR THE BOARD

H. Ahmad, Associate Counsel


INTRODUCTION

The Veteran served on active duty from June 1957 to June 1963 and from July 1964 to April 1979.

This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO), which established service connection for PTSD and assigned a 30 percent rating, and which found that new and material evidence had not been received to reopen a claim for service connection for a left knee disability.  

A May 2016 decision assigned a higher rating of 50 percent for PTSD as of August 5, 2013.  Because that higher rating does not constitute a grant of the full benefit sought on appeal, the claim for increase remains before the Board.  AB v. Brown, 6 Vet. App. 35 (1993).  

A May 2016 RO rating decision reopened the previously denied claim for service connection for a left knee disability.  The Board must address the question of whether new and material evidence has been received to reopen the claim for service connection in order to establish its jurisdiction to review the merits of a previously denied claim.  Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996).

The claims of entitlement to service connection for a left knee disability, entitlement to an increased rating for PTSD, and entitlement to TDIU are remanded to the Agency of Original Jurisdiction.
 
This appeal has been advanced on the Board's docket pursuant to 38 U.S.C. § 7107(a)(2) (2012); 38 C.F.R. § 20.900(c) (2017).


FINDINGS OF FACT

1.  A July 1980 rating decision denied service connection for a left knee disability.  The Veteran did not appeal the decision, and that decision is final.

2.  The evidence received subsequent to the July 1980 final denial of the claim for service connection for a left knee disability is new, and is also material because it raises a reasonable possibility of substantiating the claim.


CONCLUSIONS OF LAW

1.  The July 1980 rating decision that denied service connection for a left knee disability is final.  38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.302, 20.1103 (2017). 

2.  As new and material evidence has been received since the July 1980 rating decision, the requirements to reopen the claims for service connection for left knee disability have been met.  38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service.  38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303(a) (2017).  To establish service connection for a current disability, a Veteran must show the existence of a present disability; in-service incurrence or aggravation of a disease or injury; and a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). 

Generally, VA rating decisions that are not timely appealed are final.  However, if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim.  38 U.S.C. §§ 5108, 7105 (2012).

New evidence means 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) (2017).

New and material evidence is not required as to each previously unproven element of a claim.  There is a low threshold for reopening claims.  38 C.F.R. § 3.156(a) (2017); Shade v. Shinseki, 24 Vet. App. 110 (2010).  For the purpose of determining whether new and material evidence has been submitted, the credibility of the new evidence is presumed.  Justus v. Principi, 3 Vet. App. 510 (1992).

A July 1980 rating decision denied service connection for a left knee disability because a May 1980 VA examination showed there was no left knee disability present.  The relevant evidence of record at that time included the Veteran's statements, service medical records, and the May 1980 VA examination.  The Veteran was notified of the decision and his appellate rights by letter dated August 7, 1980.  The Veteran did not submit a timely notice of disagreement or submit material evidence within one year following that denial.  Therefore, the July 1980 rating decision became final.  38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.160(d), 20.302 (2017). 

Briefly reviewing the evidence submitted since the July 1980 decision, May 2015 and July 2016 x-rays show osteoarthritis in the left patellofemoral joint.  That evidence which was not of record at the time of the July 1980 rating decision relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim and is thus new and material.  38 C.F.R. § 3.156(a) (2017).  Therefore, the claim for service connection for a left knee disability is reopened.


ORDER

New and material evidence having been submitted, the claim of entitlement to service connection for a left knee disability is reopened, and to that extent only the appeal is granted.


REMAND

The Board finds that further evidentiary development is necessary before the claims of entitlement to service connection for a left knee disability, entitlement to an increased rating for PTSD, and entitlement to TDIU can be adjudicated.

Regarding the claim for service connection for a left knee disability, the Board notes that the Veteran testified that repeatedly hitting his knee going up and down ladders and through hatches while serving on Navy ships led to left knee problems.  A May 1980 VA examination, conducted approximately a year after the Veteran's separation from service, noted complaints of left knee pain.  The May 1980 examiner diagnosed left knee malfunction by history, but x-rays conducted at that time were negative.  At a June 2014 VA examination, x-rays were again negative.  However, May 2015 and June 2016 x-rays showed the presence of osteoarthritis in the left patellofemoral joint.  Therefore, the Board must remand the claim to obtain a VA examination that adequately considers the Veteran's contentions with the diagnostic results showing arthritic changes in the left knee.  Barr v. Nicholson, 21 Vet. App. 303 (2007).

Regarding the claim for PTSD, the Board finds that a more contemporaneous VA examination is required to properly assess the current severity of the disability.  The Veteran was provided with a VA examination for PTSD in September 2015.  While, generally, the mere passage of time is not a sufficient basis for a new examination, further allegations of a worsening condition have been set forth by the Veteran since the prior examination.  Palczewski v. Nicholson, 21 Vet. App. 174 (2007).  Specifically, at a September 2017 hearing, the Veteran testified that the condition had progressively worsened.  Therefore, remand is necessary to obtain a current examination.

Accordingly, the case is REMANDED for the following action:

1.  Obtain and associate with the claims file all outstanding VA and private treatment records, including records from Madigan Army Medical Center since July 2016

2.  Then, schedule the Veteran for a VA examination to assess the current nature and severity of PTSD.  The examiner must review the claims file and should note that review in the report.  The examiner should opine regarding the levels of social and occupational impairment caused by PTSD and should describe the symptoms, and the frequency and severity of those symptoms that cause those levels of impairment.  The examiner should provide a complete rationale for all conclusions reached.  The examiner must explicitly address whether the Veteran's PTSD alone prevent the Veteran from obtaining or maintaining substantially gainful employment, without consideration of any non-service-connected disabilities.  If the Veteran is felt capable of work despite the service-connected disability, the examiner should state what type of work and what accommodations would be necessary due to the service-connected disability.  The examiner should also opine whether the combined service-connected disabilities prevent the Veteran from obtaining or maintaining substantially gainful employment, without consideration of any non-service-connected disabilities.  If the Veteran is felt capable of work despite the service-connected disability, the examiner should state what type of work and what accommodations would be necessary due to the service-connected disability.  If the Veteran is found not capable of work, the examiner should opine as of what date the Veteran was unable to work due solely to service-connected disabilities.

3.  Schedule the Veteran for a VA examination with an appropriate examiner to determine the nature and etiology of any current left knee disability.  The examiner must review the claims file and should note that review in the report.  Any indicated studies should be performed.  Based upon the examination results and a review of the record, including the Veteran's lay statements regarding symptomology, and the May 1980 VA examination report, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any identified left knee disability, including osteoarthritis, is etiologically related to service.  The examiner should state whether osteoarthritis is related to the findings of the May 1980 VA examination, and the Veteran's contention that left knee problems are related to hitting his knee repeatedly on ladders and hatches during service.

4.  Then, readjudicate the claims.  If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the applicable time for response.  Then, return the case to the Board.

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 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.  38 U.S.C. §§ 5109B, 7112 (2012).



_________________________________________________
Harvey P. Roberts
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C. § 7252 (2012), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims.  This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal.  38 C.F.R. § 20.1100(b) (2017).


Department of Veterans Affairs