Citation Nr: 18143334 Decision Date: 10/18/18 Archive Date: 10/18/18 DOCKET NO. 14-30 387 DATE: October 18, 2018 ORDER The petition to reopen the claim for service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD), is granted, and to this extent only, the appeal is allowed. REMANDED Service connection for a back disability is remanded. Service connection for hypertension is remanded. Service connection for an acquired psychiatric disability, to include PTSD, is remanded. Service connection for obstructive sleep apnea is remanded. Service connection for a dental disability is remanded. A rating in excess of 10 percent for a left knee disability before June 18, 2018, is remanded. A total disability rating based on individual unemployability as the result of service-connected disability (TDIU) is remanded. FINDINGS OF FACT 1. A May 2008 rating decision denied the Veteran’s claim of entitlement to service connection for PTSD. 2. The evidence received since the May 2008 rating decision is neither cumulative nor redundant, relates to unestablished facts necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim of entitlement to service connection for an acquired psychiatric disability, to include PTSD. CONCLUSIONS OF LAW 1. The July 2010 rating decision denying the Veteran’s claim of entitlement to service connection for PTSD is final. 38 U.S.C. § 7105(c) (2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2009). 2. New and material evidence has been received sufficient to reopen the claim of entitlement to service connection for an acquired psychiatric disability, to include PTSD. 38 U.S.C. § 5108 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1988 to July 1992. As an initial matter, the Board notes that the Agency of Original Jurisdiction (AOJ) developed the Veteran’s June 2011 claim for service connection for osteoarthritis as a separate claim in itself. Upon review of the record, however, including an August 2014 statement, the Veteran clarified that by “osteoarthritis”, he meant to claim service connection for arthritis in his back and left knee. The claim for service connection for a back disability is on appeal, and the Veteran is already in receipt of service connection for arthritis of the left knee. The Board has therefore removed the Veteran’s claim for osteoarthritis as a separate issue, and the Veteran is not prejudiced by this recharacterization. A claim of service connection for a dental disability is also a claim for VA outpatient dental treatment. Mays v. Brown, 5 Vet. App. 302, 306 (1993). In such claims, the Regional Office (RO) adjudicates the claim for service connection, and the VA Medical Center adjudicates the claim for outpatient treatment. The Board limits its analysis in this decision to the issue of service connection for a dental disability, and the claim for VA outpatient dental treatment is REFERRED to the Agency of Original Jurisdiction (AOJ) for further referral to the appropriate VA Medical Center. See 38 C.F.R. §§ 17.161; § 19.9(b) (2018). New and Material Evidence Decisions of the RO and the Board that are not appealed in the prescribed time are final. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 3.104, 20.1100, 20.1103. A finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. If new and material evidence is presented or secured with respect to a claim that has been disallowed, VA must reopen the claim and review the former disposition. 38 U.S.C. § 5108; Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). 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 it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156; Smith v. West, 12 Vet. App. 312 (1999). To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. Evans v. Brown, 9 Vet. App. 273 (1996). For the purposes of determining whether it is material, the credibility of newly submitted evidence is presumed, unless the evidence is inherently incredible or considered to be beyond the competence of a witness. Justus v. Principi, 3 Vet. App. 510 (1992). If it is determined that new and material evidence has been submitted, the claim must be reopened. VA may then proceed to evaluate the merits of the claim on the basis of all evidence of record, but only after ensuring that the duty to assist the Veteran in development has been satisfied. Elkins v. West, 12 Vet. App. 209 (1999). The Board must address the question of whether new and material evidence has been received to reopen the claim because the issue goes to the Board’s jurisdiction to reach the underlying claim and adjudicate the claim de novo. Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). The Board is required to first consider whether new and material evidence is presented before the merits of a claim can be considered. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). The Board also notes that the threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. Shade v. Shinseki, 24 Vet. App. 110 (2010). The Veteran’s claim of entitlement to service connection for PTSD was last finally denied in a May 2008 rating decision, which found that the Veteran did not have either PTSD or an in-service stressor. The Veteran was notified of the decision and of his appellate rights, but he did not appeal the May 2008 rating decision, no evidence was received within one year of the May 2008 rating decision, and no new service records have been submitted. Therefore, the May 2008 rating decision is final. Since the May 2008 rating decision, additional evidence has been added to the record indicating that the Veteran has a diagnosed psychiatric disability. That evidence is new because it has not previously been submitted to VA. Regarding the materiality of the newly submitted evidence, given the medical evidence indicates that the Veteran has a current psychiatric disability, the newly submitted evidence relates to unestablished facts necessary to substantiate the claim. As new and material evidence has been received, the claim for service connection for an acquired psychiatric disability, to include PTSD, is reopened. REASONS FOR REMAND A statement of case (SOC) was most recently issued as to the issues on appeal in July 2014. Since that time, additional pertinent medical evidence has been added to the Veteran’s claims file, including VA treatment records and VA examination reports. In July 2018, the Board sent the Veteran a letter to clarify whether he wanted to waive consideration of the newly-submitted evidence by the Agency of Original Jurisdiction (AOJ). The Veteran did not respond to the letter, and a waiver of consideration by the AOJ is not of record. Any pertinent evidence submitted without a waiver is to be referred to the AOJ. 38 C.F.R. § 20.1304(c). The Board is therefore remanding this case to the AOJ for review of this additional evidence in the first instance. Additionally, with regard to the Veteran’s claim of entitlement to a rating in excess of 10 percent for a left knee disability, the Board notes that the Veteran underwent a total left knee replacement in June 2018. The Veteran’s left knee has been rated 100 percent from that time until August 1, 2019. While the record contains certain VA treatment records that show the Veteran consistently received treatment for symptoms affecting his left knee, the Agency of Original Jurisdiction (AOJ) has not obtained VA treatment records dated from February 2017 to the date of his June 2018 total knee replacement. These records, showing the symptomatology ultimately leading to his knee replacement, are especially relevant to determining the appropriate rating for the Veteran’s left knee disability. Accordingly, all VA treatment records from February 2017 to June 2018 should be associated with the record. The matters are REMANDED for the following actions: 1. Ensure that all pertinent VA treatment records have been associated with the Veteran’s claims file, including treatment records from February 2017 to June 2018. 2. Then, readjudicate the claims, ensuring that all pertinent evidence, including all evidence received since the issuance of the most recent SOC, is reviewed. If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. THOMAS H. O'SHAY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J.A. Flynn