Citation Nr: 1804871 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 14-24 406A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a bilateral knee disability. 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a psychiatric disability. 3. Entitlement to service connection for a bilateral knee disability. 4. Entitlement to service connection for a psychiatric disability, to include posttraumatic stress disorder and major depressive disorder, claimed as due to military sexual trauma. 5. Entitlement to service connection for Human Immunodeficiency Virus (HIV). 6. Entitlement to service connection for a lower left extremity disability, to include posterior tibiae tendonitis. 7. Entitlement to a rating in excess of 50 percent for bilateral pes planus. 8. Entitlement to an initial compensable rating for right lower extremity tibiae tendonitis. 9. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD H. Ahmad, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1985 to February 1989. This matter is before the Board of Veterans' Appeals (Board) on appeal from March 2010 and March 2013 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. In March 2017, the Veteran testified before the undersigned in a videoconference hearing. A transcript of that hearing is of record. 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). 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). The issues of entitlement to service connection for a psychiatric disability, entitlement to service connection for a left lower extremity disability, entitlement to an increased rating for a right lower extremity disability, and entitlement to TDIU are REMANDED to the Agency of Original Jurisdiction. FINDINGS OF FACT 1. An October 2006 rating decision denied service connection for a bilateral knee disability. The Veteran did not appeal the decision, and that decision is final. 2. Evidence associated with the record since the October 2006 rating decision is cumulative or redundant of evidence of record at the time of the prior denial, does not relate to unestablished facts necessary to substantiate the claim for service connection for a bilateral knee disability, and does not raise a reasonable possibility of substantiating the claim. 3. A March 2010 rating decision denied service connection for a PTSD. The Veteran did not appeal the decision, and that decision is final. 4. The evidence received subsequent to the March 2010 final denial of the claim for service connection for PTSD is new, and is also material because it raises a reasonable possibility of substantiating the claim. 5. The preponderance of the evidence is against a finding that HIV was caused by or incurred in service. 6. Prior to the promulgation of a decision in the appeal, the Veteran withdrew the appeal for the claim of entitlement to an increased rating for bilateral pes planus. CONCLUSION OF LAW 1. The October 2006 rating decision that denied service connection for a bilateral 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 not been received, the claim for service connection for a bilateral knee disability is not reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). 3. The March 2010 rating decision that denied service connection for PTSD is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.302, 20.1103 (2017). 4. As new and material evidence has been received since the March 2010 rating decision, the requirements to reopen the claim for service connection for PTSD have been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 5. The criteria for service connection for HIV are not met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 6. The criteria for withdrawal of the appeal for entitlement to an increased rating for bilateral pes planus have been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.204 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has thoroughly reviewed all the evidence in the claims file. While the Board must provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by or on behalf of the Veteran. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence of record. The Veteran should not assume that the Board has overlooked pieces of evidence that are not explicitly discussed. Timberlake v. Gober, 14 Vet. App. 122 (2000). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Equal weight is not given to each piece of evidence contained in the record. Every item of evidence does not have the same probative value. When the evidence is assembled, the Board 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). Duties to Notify and Assist VA has a duty to notify a Veteran of the information and evidence necessary to substantiate a claim for VA benefits. 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017). VA also has a duty to assist Veterans in the development of claims. 38 U.S.C. §§ 5103, 5103A (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C. § 5103(a) (2012); 38 C.F.R. § 3.159(b) (2017); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will provide; and (3) that the claimant is expected to provide. The notice should be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The notice requirements apply to all five elements of a service connection claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between service and the disability; (4) degree of disability; and (5) effective date of the disability. The notice should include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notification requirements were met in correspondence to the Veteran dated in January 2013. VA has done everything reasonably possible to assist the Veteran with respect to the claim. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159(c) (2017). The service medical records have been associated with the claims file. All identified and available treatment records have been secured, which includes VA examinations and VA and private health records. The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran. Green v. Derwinski, 1 Vet. App. 121 (1991). When VA provides an examination, that examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Veteran was provided with a VA examination for HIV in February 2013. The examiner reviewed the claims file and past medical history, and made appropriate diagnoses and opinions consistent with the remainder of the evidence of record. The Board concludes that the VA examination report is adequate for the purpose of making a decision. 38 C.F.R. § 4.2 (2017); Barr v. Nicholson, 21 Vet. App. 303 (2007). Concerning the new and material evidence claim, the duty to provide a medical examination or obtain a medical opinion in a claim for disability compensation benefits does not apply in cases involving an attempt to reopen a finally adjudicated claim unless new and material evidence is presented or secured. 38 C.F.R. § 3.159(c)(4)(iii) (2017); Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). The Board is satisfied that all relevant facts have been adequately developed to the extent possible and that no further assistance is required to comply with the duty to assist. Accordingly, the Board will proceed with a decision. New and Material Evidence 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). Bilateral Knee Disability An October 2006 rating decision denied service connection for a bilateral knee disability because a July 2006 VA examiner opined that the Veteran's knee problems were less likely than not related to an in-service fall, and were most likely related to injuries sustained during a December 2004 motor vehicle accident. The relevant evidence of record at that time included the Veteran's statements, service medical records, and the July 2006 VA examination. The Veteran was notified of the decision and his appellate rights by letter dated October 26, 2006. The Veteran did not submit a timely notice of disagreement or submit material evidence within one year following that denial. Therefore, the October 2006 rating decision became final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.160(d), 20.302 (2017). The evidence added to the claims file subsequent to the October 2006 denial includes additional VA and private treatment records, and statements from the Veteran. Pertinent to the current claim, the additional records show that the Veteran has arthritis and edema in the knees. However, none of the additional records submitted indicate that current knee problems are related to service. The records submitted by the Veteran reiterate that the Veteran currently experiences knee problems. Therefore, the additional records are cumulative of the evidence previously considered in the October 2006 decision. Thus, as they are cumulative, the treatment records cannot be new and material. Anglin v. West, 203 F.3d 1343 (2000). All of the statements from the Veteran, including his March 2017 testimony, reiterate the previously considered assertion that the knee problems are related to a fall in service. Therefore, those statements merely reiterate contentions that were previously considered by the October 2006 decision. Thus, those statements are cumulative and are not material evidence. The Board finds the evidence added to the claims file since the October 2006 rating decision is cumulative or redundant of the evidence of record and does not raise a reasonable possibility of substantiating the claim. The evidence added to the record does not include any new competent and credible evidence which demonstrates that currently diagnosed knee disabilities are related to in-service incidents and not the post-service motor vehicle accident, which was the basis for the prior determination. The Veteran's lay statements are merely redundant of the evidence previously considered, and the medical reports, while showing current knee arthritis, do not relate that disability to the Veteran's active service. As the information provided in support of the application to reopen the claims for service connection for a bilateral knee disability does not include new and material evidence, the appeal as to that issue remains denied, and the claim is not reopened. Psychiatric Disability A March 2010 rating decision denied service connection for PTSD because the record did not contain any evidence of a diagnosed psychiatric disability. The relevant evidence of record at that time included the Veteran's statements, service medical records, and VA medical records dated February 6, 2004 through September 8, 2009. The Veteran was notified of the decision and his appellate rights by letter dated March 19, 2010. The Veteran did not submit a timely notice of disagreement or submit material evidence within one year following that denial. Therefore, the March 2010 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 March 2010 decision, private medical records, specifically a March 2017 letter from a doctor show a diagnosis of PTSD and major depressive disorder. That evidence which was not of record at the time of the March 2010 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 PTSD is reopened. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2017). To establish a service connection for a disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). That determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d) (2017). A Veteran need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 519 (1996). Human Immunodeficiency Virus (HIV) The Veteran contends he contracted HIV in service. Specifically, at a March 2017 hearing, the Veteran testified that he was diagnosed with HIV in October 1991 after donating blood. The Veteran stated that he believed he contracted HIV after a sexual assault in service, when he began engaging in unprotected sex. He also stated he believed it was possible he contracted HIV from one of the men who assaulted him. The Veteran's service medical records do not show any findings or diagnoses related to HIV. In November 1985, the Veteran complained of penis abrasions. The service medical records also contain several complaints of symptoms related to sexually transmitted diseases. June 2012 private medical records show that the Veteran was diagnosed with HIV in 1991, two years after service, when he donated blood. In January 2014 private medical records, the Veteran reported that after returning from service, he began dating women. He eventually got married, at which point he found he had HIV. At a VA examination in February 2013, the examiner noted a diagnosis of HIV in 1991. The examiner also noted several service medical records pertaining to sexually transmitted diseases. The examiner opined that the HIV was less likely than not incurred in service. The examiner explained that no testing during service showed the presence of HIV. The Veteran reported that he had unprotected sexual encounters after service for two years prior to being diagnosed. Because the date of contraction could not be determined, and because the Veteran was not diagnosed until two years after service, the examiner opined that it was less likely than not that the HIV was contracted during service. The Board has considered the evidence of record and finds that the preponderance of the evidence is against a finding that HIV was contracted during active service. The service medical records are silent as to complaints, treatment, or diagnoses of HIV. Private medical records show he was diagnosed with HIV in 1991 after donating blood. VA medical records also show that history. The February 2013 VA examiner opined that it was less likely than not that HIV was related to service. The examiner reviewed the entire medical record and considered the lay statements by the Veteran in making that opinion. Those statements do not provide objective evidence that HIV is related to service. The Board is not free to substitute its own judgment for that of a medical expert. Colvin v. Derwinski, 1 Vet. App. 171 (1991). The Board acknowledges the statements of the Veteran regarding the onset of the HIV. However, the issue in this case is outside the realm of common knowledge of a lay person, as a nexus is not obvious merely through observation. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board finds the VA examination opinion to be the most probative and persuasive evidence of record. The VA examiner has medical training, and reviewed all the available medical records, including the Veteran's statements. The Veteran has not submitted any contrary objective evidence suggesting that the HIV was caused by an in-service incident. Accordingly, the Board finds that the preponderance of the evidence is against the claim for service connection for HIV. Therefore, the claim must be denied. 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Withdrawal The Board may dismiss any appeal which fails to allege specific errors of fact or law in the determination being appealed. 38 U.S.C. § 7105 (2012). 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 (2017). Withdrawal may be made by the appellant or the authorized representative. 38 C.F.R. § 20.204 (2017). At a March 2017 hearing, the Veteran, through his attorney, withdrew the appeal regarding the claim of entitlement to an increased rating for bilateral pes planus. Thus, there remain no allegations of errors of fact or law for appellate consideration regarding that issue on appeal. Accordingly, the Board does not have jurisdiction to review the appeals for entitlement to an increased rating for bilateral pes planus, and the appeal of that issue is dismissed. ORDER New and material evidence has not been presented to reopen a claim of entitlement to service connection for a bilateral knee disability, and the appeal is denied. New and material evidence having been submitted, the claim of entitlement to PTSD is reopened, and to that extent only the appeal is granted. Entitlement to service connection for HIV is denied. The appeal for entitlement to an increased rating for bilateral pes planus is dismissed. REMAND The Board finds that further evidentiary development is necessary before the claims of entitlement to service connection for a psychiatric disability, entitlement to service connection for a left lower extremity disability, entitlement to an increased rating for a right lower extremity disability, and entitlement to TDIU can be adjudicated. Regarding the claim for a psychiatric disability, the Board notes that a new examination is needed now that the claim is reopened to consider all of the evidence of record, specifically treatment records indicating PTSD and major depressive disorder due to sexual assault. Once VA undertakes an examination, an adequate one must be produced. Barr v. Nicholson, 21 Vet. App. 303 (2007). When medical evidence is incomplete, VA must supplement the record by seeking an advisory opinion or ordering another medical examination. Colvin v. Derwinski, 1 Vet. App. 171 (1991); Hatlestad v. Derwinski, 3 Vet. App. 213 (1992). Therefore, the Board finds that the Veteran has not been provided an adequate VA examination that accurately considers all the evidence of record and the Board must remand for an additional examination and opinion. Further, the Board notes that as this is a case regarding alleged military sexual trauma (MST) during service, VA must be vigilant with regard to providing the Veteran every opportunity to provide corroborating evidence to establish the claimed in-service MST. Therefore, to provide the Veteran with every possible opportunity to verify the in-service stressor, the Board finds that the claim should be remanded to give the Veteran another opportunity to provide lay evidence from friends and family to corroborate the account of the in-service MST. The Board emphasizes that lay evidence need not only be eye witnesses of the described incidents of MST, but because of the nature of the claim, such corroborating evidence may also exemplify change of behavior after the incidents, persons who were told of that incidents shortly after they occurred, or those types of evidence described under C.F.R. § 3.304(f)(5), to verify MST A medical opinion is needed to determine if left lower extremity tendonitis is due to or aggravated by any service-connected disability. Regarding tibiae tendonitis of the right left extremity, 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 an examination for the right lower extremity in September 2014. 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, the Veteran testified at a March 2017 hearing that the disability impacted him consistently and daily, and that he had increased limitation of motion. Therefore, remand is necessary to obtain a current examination. Accordingly, the case is REMANDED for the following action: 1. Obtain all outstanding VA medical records and private medical records that are not already of record. 2. Specifically request that the Veteran submit any corroborating evidence that could help establish the claimed military sexual trauma during service, with notice pursuant to 38 C.F.R. § 3.304(f)(5), including any lay statements from friends and family that witnessed the incident, were told of the incidents during service, or that document any changes in the Veteran's behavior or the events of abuse asserted by the Veteran. 3. Then, schedule the Veteran for a VA psychiatric examination to determine the etiology of any psychiatric disabilities found. The examiner must review the claims file and should note that review in the report. Any further indicated tests and studies to include psychological studies should be conducted to identify all current psychiatric disorders, to include any diagnosis of PTSD due to in-service personal assault. The examiner must address the Veteran's lay statements. A complete rationale should be given for all opinions and conclusions expressed. (a) The examiner should diagnose all psychiatric disabilities present. With respect to PTSD, the examiner should review the claimed in-service stressors to determine whether exposure to a claimed in-service stressor of personal assault has resulted in PTSD. The examiner should determine whether the diagnostic criteria to support the diagnosis of PTSD pursuant to DSM-IV have been satisfied. The examiner should specifically state whether or not each criterion for a diagnosis of PTSD is met. If a PTSD diagnosis is deemed appropriate, the examiner should comment upon the link between the current symptomatology and the claimed in-service personal assault or military sexual trauma. (b) With respect to any other psychiatric disorder found upon examination or diagnosed during the appeal period, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any current psychiatric disability, to specifically include major depressive disorder, is related to any incident of the Veteran's active duty service, to include the claimed in-service events of personal assault or military sexual trauma. 4. Schedule the Veteran for a VA examination to determine the nature and etiology of any left lower extremity disability, including tibiae tendonitis. The examiner must review the claims file and should note that review in the report. The rationale for all opinions should be provided. The examiner should explicitly provide the following opinions: (a) Is it at least as likely as not (50 percent or greater probability) that a left lower extremity disability was incurred during service, or is due to any event, disease, or injury during service. (b) Is it at least as likely as not (50 percent or greater probability) that a left lower extremity disability is due to or the result of service-connected pes planus or right lower extremity tendonitis? (c) Is it at least as likely as not (50 percent or greater probability) that a left lower extremity disability has been aggravated (permanently increased in severity beyond the natural progression of the disability) by service-connected pes planus or right lower extremity tendonitis? 5. Schedule the Veteran for a VA examination of the right ankle and tibia tendonitis. The examiner must review the record and should note that review in the report. A rationale for all opinions should be provided. The examiner should specifically address the impact of the right ankle disability on vocational pursuits. The examiner should provide ranges of motion for weight-bearing and nonweight-bearing and passive and active motion. The examiner should also provide those ranges of motion for the left ankle and should state whether the left ankle has any abnormality. The examiner should state whether there is any additional loss of right ankle function due to painful motion, weakened motion, excess motion, fatigability, incoordination, or on flare up. 6. Schedule the Veteran for a VA examination with an appropriate medical doctor examiner. The examiner should describe the symptoms and effects of all of the service-connected disabilities on employment. The examiner should opine as to whether, without regard to the Veteran's age or the impact of any nonservice-connected disabilities, it is at least as likely as not (50 percent probability or greater) that the service-connected disabilities, either separately or in combination, make the Veteran unable to secure or follow a substantially gainful occupation consistent with his education and occupational experience. If the Veteran is felt capable of work, the examiner should state what type of work and what accommodations would be necessary due to the service-connected disabilities. The examiner should set forth the complete rationale for all opinions expressed and conclusions reached. 7. Then, readjudicate the claim. If any benefit sought on appeal remains denied, issue a supplemental statement of the case and allow the appropriate 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 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.A.§ 5109B, 7112 (2012). ______________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs