Citation Nr: 18150775 Decision Date: 11/16/18 Archive Date: 11/15/18 DOCKET NO. 16-35 203 DATE: November 16, 2018 ORDER The claim to reopen the previously denied claim for service connection for an acquired psychiatric condition, including anxiety, depression, and posttraumatic stress disorder (PTSD), is granted to that extent only. REMANDED Entitlement to service connection for a left knee disability is remanded. Entitlement to an increased rating for residuals of a right foot injury, 5th metatarsal fracture (right little toe), currently evaluated as noncompensable, is remanded. Entitlement to service connection for an acquired psychiatric disability, including anxiety, depression, and Posttraumatic Stress Disorder (PTSD), is remanded. FINDING OF FACT 1. In a November 1995 decision, the RO denied the Veteran’s claim for service connection for PTSD because there was no evidence of a currently diagnosed disability. Following proper notification in November 1995, the Veteran did not appeal that decision and it became final. 2. Evidence received since the November 1995 decision is not cumulative or redundant, and in connection with the evidence previously assembled raises a reasonable possibility of substantiating the claim for entitlement to service connection for an acquired psychiatric condition. CONCLUSION OF LAW New and material evidence sufficient to reopen the Veteran’s claim for an acquired psychiatric condition, including anxiety, depression, and PTSD, has been received since the November 1995 decision; the claim is reopened. 38 U.S.C. § 5108; 38 C.F.R. §3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served in the United States Army from September 1973 to September 1993. New and material evidence to reopen the claim for entitlement to service connection for an acquired psychiatric condition, including anxiety, depression, and posttraumatic stress disorder (PTSD) In general, decisions of the RO and the Board that are not appealed in the prescribed time period are final. 38 U.S.C. §§ 7103, 7104, 7105; 38 C.F.R. §§ 3.104, 20.1100, 20.1103. A finally disallowed claim, however, may be reopened when new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108. Regardless of the action taken by the RO, the Board must determine whether new and material evidence has been received subsequent to an unappealed RO or Board denial. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). As part of this review, the Board considers evidence of record at the time of the previous final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim, and evidence submitted since a prior final disallowance. Evans v. Brown, 9 Vet. App. 273, 285-86 (1996). 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. For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). 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, 117 (2010). In determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, to include by triggering the Secretary’s duty to assist or consideration of a new theory of entitlement. Shade, 24 Vet. App. at 117-18. In a November 1995 rating decision, the RO denied service connection for PTSD because there was not a clear diagnosis of the condition, credible supporting evidence that an in-service stressor actually occurred, and a link established by medical evidence between the current symptomatology and the claimed in-service stressor. Furthermore, the Veteran failed to report for the PTSD examination nor did the Veteran identify the stressful event or events for which he claimed PTSD. The Veteran did not appeal this decision. The decision is thus final based on the evidence then of record. See 38 U.S.C. §7103; 38 C.F.R. § 20.1100. Evidence of record at the time of the November 1995 rating decision included the Veteran’s April 1995 informal claim for compensation, service treatment records, and Ireland Army Hospital treatment reports for January 1993, February 1995, and March 1995. Since that time, the claims file now includes additional medical treatment records, a July 2010 VA report, statements in support of claim, and a January 2016 VA examination report with a diagnosis of unspecified depressive disorder. As the evidence now reflects a diagnosis of an acquired psychiatric disability, and given the low threshold espoused in Shade, the claim is reopened. REASONS FOR REMAND Entitlement to service connection for left knee disability is remanded. The Veteran has been diagnosed with bone on bone arthritis. The remand is required to attempt to obtain additional private medical records. A July 2010 VA examination report notes that the Veteran had a post-service left knee injury in 1998 or 1999 during employment that resulted in knee surgery; worker’s compensation records may reflect reports of the Veteran’s knee condition prior to the post-service injury, and would potentially reflect reports of symptoms since service. In addition, the Board notes that an October 2012 VA examination report reflects that the Veteran reported he had surgery on the right knee and has never had surgery on the left knee. Thus, clarification from the records is warranted.   Entitlement to an increased rating for residuals of right foot injury, 5th metatarsal fracture (right little toe) In 2009, the Veteran filed a claim for an increased rating. He has been afforded VA examinations in January 2010 and February 2016. In a June 2018 appellant’s brief, the Veteran’s representative requested that the Veteran be afforded another examination to determine the current severity of his disability. Although the mere passage of time does not render an older examination inadequate, the Board finds that, as the Veteran’s representative has requested another examination, he should be afforded such. The Veteran has asserted that he stopped working due to foot pain (he has alternatively stated that he is unemployed due to an acquired psychiatric disability, an ankle disability, or sleep apnea). The Veteran is in receipt of service-connection for a right ankle disability (which is not on appeal); thus, the Board finds that a clinical opinion which differentiates the severity of the Veteran’s symptoms from each right lower extremity service-connected disability may be useful to the Board. Entitlement to service connection for an acquired psychiatric condition, including anxiety, depression, and posttraumatic stress disorder (PTSD) is remanded. A January 2016 VA examination report reflects that the Veteran does not meet the criteria for PTSD, but meets the diagnoses of unspecified depressive disorder and alcohol use disorder. However, the examiner did not provide a nexus opinion if it is at least as likely as not (50 percent probability or greater) that the Veteran has an acquired psychiatric condition causally related to service. Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Thus, a supplemental opinion is warranted. The matters are REMANDED for the following action: 1. Contact the Veteran and afford him the opportunity to identify by name, address, and dates of treatment or examination any relevant medical records, to include worker’s compensation records for a knee injury. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 2. Associate with the claims file all VA records, if not already associated with the claims file, from September 1993 to present. 3. Thereafter, schedule the Veteran for an examination of his left knee for the following: a.) Is it as likely as not (50 percent or greater) that the Veteran has a current left knee disability causally related to active service. b.) Is it as likely as not (50 percent or greater) that the Veteran has a current left knee disability which is causally related to, or aggravated beyond its natural progression by a service-connected disability, and if so, the degree of aggravation. The clinician should consider the pertinent evidence of record to include: i) the in-service complaints; ii.) a worker’s compensation injury post-service (if any); iii.) the July 2010 VA examination report; iv.) the October 2012 VA examination; and v.) the Veteran’s post-service employment. 4. Schedule the Veteran for an examination to ascertain the current severity of his fracture of the right little toe. 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 his fracture of the little toe alone and discuss the effect of that disability on the Veteran’s occupational functioning. 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). The examiner, if reasonably possible, should distinguish the Veteran’s symptoms of his little toe from those of his ankle disability, knee disability, hammertoes, and leg length disability. 5. Obtain a supplemental opinion to the 2016 VA opinion as to whether it is as likely as not (50 percent or greater) that the Veteran has an acquired psychiatric condition causally related to service. A complete rationale should be provided. If an adequate opinion cannot be rendered without another examination, the Veteran should be scheduled for such. T. WISHARD Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD G. DEEMER, ASSOCIATE COUNSEL