Citation Nr: 18150702 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 16-28 675 DATE: November 15, 2018 ORDER New and material evidence having been received, the issue of an acquired psychiatric disorder, to include anxiety, depression, and bipolar disorder, with consideration as being secondary to service-connected bilateral knee disability and stressors in service, is reopened. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include anxiety, depression, and bipolar disorder, to include as secondary to service-connected bilateral knee disability and stressors in service is remanded. Entitlement to a rating in excess of 10 percent for bilateral knee disability is remanded. FINDINGS OF FACT 1. The claim for service connection for a mental health condition (previously claimed as stress/depression) was previously denied in a June 2012 rating decision. The Veteran did not appeal that decision and it is therefore final. 2. Evidence added to the record since the June 2012 denial is not cumulative or redundant of the evidence of record at the time of such decision and raises a reasonable possibility of substantiating the Veteran’s claim for service connection for the expanded claim, an acquired psychiatric disorder, to include anxiety, depression, and bipolar disorder, with consideration as being secondary to service-connected bilateral knee disability and stressors in service. CONCLUSIONS OF LAW 1. The June 2012 rating decision that denied service connection for a mental health condition (previously claimed as stress/depression) is final. 38 U.S.C. § 7104 (b) (2012); 38 C.F.R. § 20.1103 (2017). 2. New and material evidence has been received to reopen the claim of entitlement to service connection for the expanded claim, an acquired psychiatric disorder, to include anxiety, depression, and bipolar disorder, to include as secondary to service-connected bilateral knee disability and stressors in service. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1976 and April 1978. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. In Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009) the United States Court of Appeals for Veterans Claims (Court) held that in determining the scope of a claim the Board must consider the claimant’s description of the claim, symptoms described, and the information submitted or developed in support of the claim. The Board notes that the Veteran has been diagnosed with anxiety, depression, and possibly bipolar disorder. In light of the Court’s decision in Clemons, the Board has recharacterized the issue on appeal as described above. New and material evidence having been received, the issue of an acquired psychiatric disorder, to include anxiety, depression, and bipolar disorder, to include as secondary to service-connected bilateral knee disability and stressors in service is reopened The Veteran seeks to reopen her claim for service connection for a mental health condition. Although the RO determined that new and material evidence sufficient to reopen the claim for a mental health condition had not been submitted, the Board must consider the question of whether new and material evidence has been received because it 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). If the Board finds that no such evidence has been offered, that is where the analysis must end, and what the RO may have determined is irrelevant. Id. The claim for entitlement to service connection for a mental health condition may be reopened if new and material evidence is submitted. Manio v. Derwinski, 1 Vet. App. 140 (1991). The Veteran filed this application to reopen her claim in September 2013. New evidence means existing evidence that, by itself or when considered with the 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). In determining whether evidence is new and material, the credibility of the new evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). The RO denied service connection for stress and depression in February 2002 on the basis that they were not shown in service and were not related to the Veteran’s service-connected knee condition. The RO denied the claim again in June 2012. The evidence before the VA at the time of the prior final decision in 2012 consisted of the Veteran’s service treatment records, VA treatment records, private treatment records, VA examinations, and correspondence. The RO denied the claim, finding that the Veteran claimed stress/depression relating to asbestos; however, the Veteran did not respond to their letter requesting more information regarding the claim. Following the Veteran’s application to reopen the claim, VA and private treatment records, a VA examination, a Board hearing, and statements were obtained. Specifically, the Veteran asserted during the April 2018 Board hearing that her acquired psychiatric disability was caused by sexual harassment stressors in service as well as her service-connected bilateral knee disability. Additionally, the Board finds that an anxiety diagnosis was made in a March 2013 VA treatment record, and the Veteran asserted she had bipolar disorder for which she treated. The Board finds that this theory of entitlement and diagnoses are new, in that it was not previously considered. The Board further finds that this theory of entitlement and diagnoses are material to the Veteran’s claim because it addresses a missing factor in service connection. Thus, for these reasons, the expanded claim for service connection for an acquired psychiatric disorder, to include anxiety, depression, and bipolar disorder, to include as secondary to service-connected bilateral knee disability and stressors in service, is reopened. REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disorder, to include anxiety, depression, and bipolar disorder, to include as secondary to service-connected bilateral knee disability and stressors in service is remanded. In a claim to reopen, the duty to assist by arranging for a VA examination or obtaining a medical opinion does not attach until the previously denied claim is reopened. 38 C.F.R. § 3.159 (c)(4)(iii). In light of the foregoing reopening of the claim, the Board finds that this duty to provide an examination must now be considered. The Board notes that a March 2014 VA examination was provided and addressed the nexus between the Veteran’s psychiatric condition and her bilateral knee disability; however, the Board finds that it is not sufficient to allow proper consideration of the issue on appeal as it did not consider the above-mentioned contentions, specifically whether her psychiatric condition was caused by sexual harassment in service and did not address the other diagnoses of note mainly anxiety and the Veteran’s claimed bipolar disorder. Therefore, the claim must be remanded for a new VA examination addressing whether the Veteran has anxiety, depression, or a bipolar disorder that is related to her stressors in service, specifically sexual harassment. 2. Entitlement to a rating in excess of 10 percent for bilateral knee disability is remanded. The Veteran was last examined for her bilateral knee disability in June 2017. In the Veteran’s April 2018 Board hearing, the Veteran asserted that these conditions had worsened. She stated that she used a walking stick and crutches in addition to her knee braces. She said that she had to lean on things to stand up and that she had to get her knees moving in the morning to avoid them from dislocating. In light of the indication that the bilateral knee disability has worsened, the Board finds a remand is required in order to afford the Veteran a contemporaneous VA examination so as to determine the current level of impairment. See Snuffer v. Gober, 10 Vet. App. 400 (1997). The matters are REMANDED for the following actions: 1. Obtain any outstanding VA or private treatment records. Request that the Veteran assist with locating these records, if possible. Associate these records with the claims file. 2. Then, schedule the Veteran for a VA examination with an appropriate examiner to determine the Veteran’s acquired psychiatric disability claim. The claims file and a copy of this remand must be made available for review. Following review, the examiner must do the following: (a) Identify all acquired psychiatric disorders present. If the examiner only finds depression present, the examiner must address the previously diagnosed anxiety as well as the Veteran’s claimed bipolar disorder. (b) Provide an opinion as to whether any psychiatric disorders identified are at least as likely as not (50 percent or greater probability) caused or aggravated by the Veteran’s claimed stressors in service, specifically her claims of sexual harassment. A clear rationale should be provided for all opinions expressed. The examiner must consider the Veteran’s statements when making an opinion. If the examiner is unable to provide an opinion without resorting to mere speculation, then the examiner must explain why a definitive opinion cannot be provided. 3. Also, schedule the Veteran for a VA examination with an appropriate examiner to determine the current severity of her service-connected bilateral knee disability. The claims file and a copy of this remand must be made available for review. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to the Veteran’s bilateral knee disability alone and discuss the effect of the Veteran’s bilateral knee disability on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). A clear rationale should be provided for all opinions expressed. The examiner must consider the Veteran’s statements when making an opinion. (Continued on the next page)   4. Thereafter, readjudicate the claims on appeal. If the benefit sought remains denied, issue the Veteran and her representative a supplemental statement of the case and provide a reasonable opportunity to respond before returning this matter to the Board for further appellate review. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Saudiee Brown, Associate Counsel