Citation Nr: 18140745 Decision Date: 10/05/18 Archive Date: 10/05/18 DOCKET NO. 15-01 588 DATE: ORDER As new and material evidence has not been presented to reopen a previously denied claim for entitlement to service connection for a back condition, the appeal is denied. As new and material evidence has not been presented to reopen a previously denied claim for entitlement to service connection for a left knee condition, the appeal is denied. As new and material evidence has not been presented to reopen a previously denied claim for entitlement to service connection for a right knee condition, the appeal is denied. REMANDED Entitlement to service connection for an acquired psychiatric condition, to include major depressive disorder and paranoia, is remanded. FINDINGS OF FACT 1. In an unappealed June 2008 adjudication, the RO declined to reopen a claim of service connection for a back condition and a bilateral knee condition. 2. Evidence received since the June 2008 last, final rating decision is cumulative and redundant of the prior evidence, and it does not raise a reasonable possibility of substantiating the claim of entitlement to service connection for a back condition and a bilateral knee condition. CONCLUSION OF LAW Evidence received since the June 2008 RO adjudication that declined to reopen a claim of service connection for a back condition and a bilateral knee condition, which was the last final denial with respect to these issues, is not new and material; the claim is not reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156, 20.302, 20.1103. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1970 to June 1971. This matter comes before the Board on appeal from a January 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. A videoconference hearing was held in January 2018 before the undersigned Veterans Law Judge. New and Material Evidence Generally, a claim which has been denied in a Board decision or an unappealed rating decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c) (2012). An exception to this rule is 38 U.S.C. § 5108, which provides that if a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 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). VA must review all of the evidence submitted since the last final rating decision in order to determine whether the claim may be reopened. See Hickson v. West, 12 Vet. App. 247, 251 (1999). For the limited purpose of determining whether new and material evidence has been submitted, the credibility of the newly submitted evidence is presumed. See Justus v. Prinicipi, 3 Vet. App. 510, 513 (1992); see also Kutscherousky v. West, 12 Vet. App. 369, 371 (1999) (per curium) (holding that the “presumption of credibility” doctrine continues to be precedent). The presumption is rebuttable when the evidentiary assertion is inherently incredible or when the fact asserted is beyond the competence of the person making the assertion. King v. Brown, 5 Vet. App. 19, 21 (1993). By way of brief procedural history, the RO denied the Veteran’s initial claim for service connection for a back condition and a bilateral knee condition in a December 2005 rating decision on the basis that the Veteran’s back condition was not shown as incurred in or caused by active military service. The RO determined that the Veteran’s bilateral knee condition preexisted service and was not aggravated beyond natural progression by service. At the time of the decision, the evidence of record consisted of service treatment records and VA treatment records dated from March 2005 to May 2005. The Veteran was notified of the denial by a letter dated January 2006; he did not appeal the issues and did not submit any pertinent evidence within one year of the decision. Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011) (finding that VA must determine whether evidence received during the appeal period after a decision contains new and material evidence per § 3.156(b) and failure to readjudicate the appeal after receipt of such evidence renders the decision non-final). The December 2005 rating decision is accordingly final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.160 (d), 20.200, 20.302, 20.1103. The Veteran subsequently sought to reopen the service connection claim for a back condition and a bilateral knee condition in December 2007. The RO afforded the Veteran a VA examination in January 2008. In a June 2008 rating decision, the RO declined to reopen the previously denied service connection claim because no new and material evidence had been received. The Veteran did not appeal the issues and did not submit any pertinent evidence within one year of the decision. The June 2008 rating decision is the last final decision of record. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.160 (d), 20.200, 20.302, 20.1103. Again, the Veteran subsequently sought to reopen the service connection claim for a back condition and a bilateral knee condition in June 2011. In a January 2012 rating decision, the RO declined to reopen the previously denied service connection claim because no new and material evidence had been received. The Board acknowledges that the RO implicitly reopened and adjudicated the issue on the merits in the October 2014 Statement of the Case (SOC). Despite the determination reached by the RO, the Board must make its own determination as to whether new and material evidence has been received to reopen the Veteran’s claim with respect to this issue. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). The relevant evidence added to the record since the June 2008 rating decision (last final denial) includes VA treatment records dated from June 2008 to January 2012, a June 2011 statement from G. T., a September 2011 VA Back (Thoracolumbar Spine) Conditions examination report, a December 2011 VA Knees and Lower Leg Conditions examination report, and the January 2018 hearing transcript. This evidence is new as it was not previously submitted and/or considered by agency decision-makers prior to the last and final June 2008 rating decision. This evidence, however, is not material. In this regard, in the June 2011 statement, G.T. stated that the Veteran was her boyfriend from 1968 to 1974, that he had no problems with his back or knees before entering service, that after separation from service he started telling her about his back and knee problems, and that he was not the same person she knew. At the hearing, the Veteran discussed the condition of his back and knees prior to service and symptoms he experienced in service and after service. This lay evidence is not material because it is redundant and cumulative of lay evidence previously considered pertaining to the condition of the Veteran’s back and knees prior to service and symptoms he experienced in service and after service. In the September 2011 VA opinion, the examiner recognized that the Veteran was seen in service for low back pain and that the Veteran reported at that time that he had experienced low back pain on and off since the 11th grade during sports. At the current exam, the examiner indicated that the Veteran denied any low back complaints prior to his military service. The examiner also noted that the Veteran reported that although he did not seek treatment for his back after service, he experienced recurrent low back pain all along. The examiner ultimately concluded that there was no nexus between any current low back disability and any symptoms noted in service. In the December 2011 VA opinion, the examiner recognized that the Veteran complained of knee pain in service. The examiner ultimately found that the Veteran’s knee condition clearly and unmistakably existed prior to service and clearly and unmistakably was not aggravated beyond its natural progression in service. This medical evidence is not material because it does not tend to show that any back or bilateral knee disability was incurred or aggravated in service. Thus, the lay and medical evidence does not raise a reasonable possibility of substantiating the claim and is insufficient to reopen the claim of service connection for a back condition and a bilateral knee. 38 C.F.R. § 3.156(a). As such, the Board finds that new and material evidence has not been presented to reopen the previously denied claim of entitlement to service connection for a back condition and a bilateral knee condition, and the appeals are denied. REASON FOR REMAND Entitlement to service connection for an acquired psychiatric condition, to include major depressive disorder and paranoia is remanded. The May 1970 enlistment examination indicated that the Veteran was psychiatrically normal. On the Report of Medical History, he endorsed “no” for “depression or excessive worry” and “nervous trouble of any sort”. A November 11, 1971 Medical Certificate indicated that the Veteran was diagnosed with paranoid personality characterized by hypersensitivity, rigidity, unwarranted suspicion, jealousy, envy, excessive self-importance and a tendency to blame others and ascribe evil motives to them; the characteristics tended to interfere with the Veteran’s ability to maintain satisfactory interpersonal relations. The examiner noted the Veteran’s moderate predisposition in that it appeared as a life-long pattern of adaptation. The Veteran was free from mental defect, disease or derangement as to be able to distinguish right from wrong; he had no psychiatric disease warranting separation from the Air Force through medical channels under the provisions of Air Force Manual (AFM) 35-4; or had no personality disorder which was sufficiently severe to render him subject to elimination from the Air Force under the provisions of an administrative regulation. The examiner opined that it was highly unlikely that the Veteran would show an adequate adaptation to military life. The examiner recommended an administrative discharge via AFM 39-12 if the assessment was consistent with the Veteran’s performance and behavior. On May 13, 1971, the Veteran was examined for separation and was deemed psychiatrically normal. The examiner noted that there was “no mental or physical defects found to warrant action under provisions of AFM 35-4”. The Veteran’s DD Form 214 indicates that he received an Under Honorable Conditions discharge pursuant to AFM 39-12, Chapter 2, Section A (Separation for Unsuitability, Misconduct, Resignation, or Request for Discharge for the Good of the Service and Procedures for the Rehabilitation Program, September 1, 1966). His post-service medical records note a psychiatric history of depression as early as May 2005. A June 2010 VA treatment note indicated that his depression screen was suggestive of severe depression. In May 2011, the Veteran was diagnosed with major depressive disorder and paranoia. During the January 2018 hearing, the Veteran testified that he had to cut grass in service which “knocked him down a peg or two” and that he “got frustrated”. He testified that he did not “go in to the military to be cutting no grass and whatnot”. He also referenced a June 25, 1971 document regarding “Admiral James” and his discharge. The Veteran testified that he would not “do anything” after having to cut grass and on May 30, 1971 he underwent a psychiatric evaluation and was subsequently discharged from service. VA has a duty to provide a VA examination when the record lacks evidence to decide the Veteran’s claim and there is evidence of: 1) a current disability or recurrent or persistent symptoms; 2) an in-service event, injury, or disease; and 3) some indication that the claimed disability may be associated with the established event, injury, or disease. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Here, there is evidence of a current disability and evidence that the disability may be related to service, but the medical evidence is insufficient. Therefore, an examination is warranted under McLendon. The matter is REMANDED for the following action: 1. Obtain the Veteran’s military personnel records and add them to the claims file. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any acquired psychiatric disorder, to include major depressive disorder and paranoia. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including the Veteran’s administrative discharge under AFM 39-12. (a.) In so opining, please consider the Veteran’s lay assertions that he: did not “go in to the military to be cutting no grass and whatnot”; he got “knocked down a peg or two”; and that he did not “do anything” after being instructed to cut grass. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Taylor, Associate Counsel