Citation Nr: 18139940 Decision Date: 10/01/18 Archive Date: 10/01/18 DOCKET NO. 16-18 525 DATE: October 1, 2018 ORDER The previously denied claim for service connection for an acquired psychiatric disorder is reopened. New and material evidence not having been submitted, the claim of entitlement to service connection for a bilateral knee disability is not reopened; the appeal is denied. REMANDED The claim for service connection for an acquired psychiatric disorder is remanded. FINDINGS OF FACT 1. In an unappealed and final decision, dated in July 2010, the Regional Office (RO) denied claims for service connection for posttraumatic stress disorder (PTSD), and a bilateral knee condition. 2. The evidence received since the July 2010 rating decision, which denied a claim for service connection for PTSD, which was not previously of record, and which is not cumulative of other evidence of record, raises a reasonable possibility of substantiating the claim for an acquired psychiatric disorder. 3. The evidence received since the July 2010 rating decision, which denied a claim for service connection for a bilateral knee condition, which was not previously of record, and which is not cumulative of other evidence of record, does not raise a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. New and material evidence has been received since the RO’s July 2010 decision which denied a claim for service connection for PTSD; the claim for service connection for an acquired psychiatric disorder is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. New and material evidence has not been received since the RO’s July 2010 decision which denied a claim for service connection for a bilateral knee condition; the claim for service connection for a bilateral knee disability is not reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from August 1996 to January 2004, from March 2006 to July 2006, and from May 2007 to May 2008. 1. New and Material. The Veteran asserts that new and material evidence has been presented to reopen the claims for service connection for an acquired psychiatric disorder, and a bilateral knee disability. In July 2010, the RO denied claims for service connection for PTSD, and a bilateral knee condition. There was no appeal, and the rating decision became final. See 38 U.S.C. § 7105(c). In August 2012, the Veteran filed to reopen the previously denied claims. In September 2013, the RO determined that new and material evidence had not been received to reopen either one of the claims. The Veteran has appealed. To avoid any prejudice to the Veteran, the Board has recharacterized the claim for an acquired psychiatric disorder issue broadly, as stated on the cover page of this decision. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Rating actions from which an appeal is not perfected become final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. The governing regulations provide that an appeal consists of a timely filed notice of disagreement in writing and, after a statement of the case has been furnished, a timely filed substantive appeal. 38 C.F.R. § 20.200. A final decision cannot be reopened unless new and material evidence is presented. Pursuant to 38 U.S.C. § 5108, the Secretary must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to that claim. Knightly v. Brown, 6 Vet. App. 200 (1994). If VA determines that new and material evidence has been added to the record, the claim is reopened and VA must evaluate the merits of an appellant’s claim in light of all the evidence, both new and old. Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). When making determinations as to whether new and material evidence has been presented, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). VA regulation defines “new” as not previously submitted and “material” as related to an unestablished fact necessary to substantiate the claim. If the evidence is new and material, the next question is whether the evidence raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). The phrase “raises a reasonable possibility of substantiating the claim” is meant to create a low threshold that enables, rather than precludes, reopening. Shade v. Shinseki, 24 Vet. App. 110 (2010). Acquired Psychiatric Disorder. At the time of the July 2010 rating decision the evidence included the Veteran’s service treatment records, which did not show that the Veteran had complaints of psychiatric symptoms, or findings or a diagnosis of an acquired psychiatric disorder. The Veteran’s personnel file, to include his discharges (DD Form 214s), showed that his awards included the Iraq Campaign Medal. He served tours of duty that included serving in Kuwait between June 2003 and September 2003, and in Iraq between July 2007 and April 2008. As for the post-service medical evidence, a VA examination report, dated in February 2010, showed that the Veteran complained of symptoms that included nightmares, and hypersensitivity to unexpected noises. There was no Axis I diagnosis rendered and the examiner concluded that the Veteran did not meet the DSM criteria for a mental health disorder, including PTSD. A Persian Gulf Protocol examination report, dated in July 2010, showed that the Veteran reported a history of depression, confusion, sleep impairment, and a loss of control/violence potential. There was no relevant diagnosis provided. At the time of the RO’s July 2010 decision, there was no evidence to show that he currently had a diagnosed acquired psychiatric disorder, or that an acquired psychiatric disorder was related to his service. The evidence received since the July 2010 rating decision includes VA progress notes, which show that upon evaluation in June 2013, the Veteran was found not to meet the criteria for PTSD, but other subsequent reports do include diagnoses of other acquired psychiatric disabilities including adjustment disorder “with anxiety and depression mood,” depression NOS (not otherwise specified), and anxiety. See e.g., VA progress notes, dated in 2017. This evidence, which was not of record at the time of the July 2010 rating decision, is not cumulative, and is “new” within the meaning of 38 C.F.R. § 3.156. The Board further finds that this evidence is material. At the time of the July 2010 rating decision, the Veteran was not shown to have a current, chronic psychiatric disorder. The submitted evidence remedies this defect, as it indicates that the Veteran may have an acquired psychiatric disorder. 38 C.F.R. § 3.156; see also Shade v. Shinseki, 24 Vet. App. 110 (2010). The claim is therefore reopened. Bilateral Knee Disability. The evidence of record at the time of the RO’s July 2010 decision included the Veteran’s service treatment records, which showed that in November 2001, he reported having been in an MVA (motor vehicle accident) the week before, and that he was experiencing generalized body aches. The assessment noted left knee strain. In March 2002, the Veteran complained of left knee pain subsequent to a MVA. An X-ray was noted to show mild patellar alta (high-riding patella). The assessment was possible MMT (medial meniscal tear), can’t rule out osteochondral injury. In December 2001, the Veteran was treated for left knee pain, with an assessment of rule out left ACL (anterior cruciate ligament) or PCL (posterior cruciate ligament) injury. In January 2002, the Veteran received follow-up treatment for his left knee. The report notes quadriceps wasting on examination, and complaints of pain and swelling. It was requested that he be provided with strength training therapy. A separation examination report was not of record. There was no post-service medical evidence of record to show that the Veteran currently had a left knee, or right knee, disability. The evidence received since the July 2010 rating decision includes VA progress notes. None of this evidence shows that the Veteran has a disability of the right knee, or the left knee. This evidence, which was not of record at the time of the July 2010 decision, is not cumulative, and is “new” within the meaning of 38 C.F.R. § 3.156. However, this evidence is not material. The submitted evidence does not include any additional evidence of inservice treatment. It does not include evidence to show that the Veteran currently has a disability of his right or left knees. It does not include a competent opinion which relates a right knee, or left knee, disability to the Veteran’s service. The Board therefore finds that the submitted evidence is not new and material, and that it does not raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156; see also Shade v. Shinseki, 24 Vet. App. 110 (2010). The claim is therefore not reopened. REASONS FOR REMAND Here, the evidence shows that the Veteran is being treated by VA for psychiatric disorders including depression and adjustment disorder. However, an opinion has not addressed their etiology. This should be done. Accordingly, the case is REMANDED for the following action: Schedule a VA examination to determine the etiology of any acquired psychiatric disability. The examiner should diagnose any current acquired psychiatric disability and then opine as to whether it is at least as likely as not (50 percent or greater) that such a disability either began during or was otherwise caused by the Veteran’s military service. Why or why not? MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T.S.E., Counsel