Citation Nr: 18152433 Decision Date: 11/21/18 Archive Date: 11/21/18 DOCKET NO. 18-29 160 DATE: November 21, 2018 ORDER The application to reopen the previously denied claim for service connection for a left ankle disability secondary to service-connected bilateral pes planus with plantar fasciitis is denied. The application to reopen the previously denied claim for service connection for a right ankle disability secondary to service-connected bilateral pes planus with plantar fasciitis is denied. The application to reopen the previously denied claim for entitlement to service connection for sleep apnea is denied. The application to reopen the previously denied claim for entitlement to service connection for gastritis and gastroesophageal reflux disease (GERD) is denied. The application to reopen the previously denied claim for entitlement to service connection for PTSD is granted. REMANDED The reopened claim of entitlement to service connection for an acquired psychiatric disability, to include depression and posttraumatic stress disorder (PTSD) is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a right knee disability is remanded. FINDINGS OF FACT 1. In a September 2013 rating decision, the RO denied the Veteran’s claim for entitlement to service connection for a left ankle and right ankle disability secondary to service-connected bilateral pes planus with plantar fasciitis. The Veteran neither appealed this decision nor submitted new and material evidence within the one-year appeal period. 2. Evidence received since the September 2013 rating decision is cumulative and does not raise a reasonable possibility of substantiating the claim of service connection for a left ankle and right ankle disability secondary to service-connected bilateral pes planus with plantar fasciitis. 3. In a November 2014 rating decision, the RO denied the Veteran’s claim for entitlement to service connection for sleep apnea. The Veteran neither appealed this decision nor submitted new and material evidence within the one-year appeal period. 4. Evidence received since the November 2014 rating decision is cumulative and does not raise a reasonable possibility of substantiating the claim of service connection for sleep apnea. 5. In a September 2005 rating decision, the RO denied the Veteran’s claim for entitlement to service connection for gastritis and GERD. The Veteran neither appealed this decision nor submitted new and material evidence within the one-year appeal period. 6. Evidence received since the September 2005 rating decision is cumulative and does not raise a reasonable possibility of substantiating the claim of service connection for gastritis and GERD. 7. In a September 2005 rating decision, the RO denied the Veteran’s claim for entitlement to service connection for PTSD. The Veteran neither appealed this decision nor submitted new and material evidence within the one-year appeal period. 8. Evidence since the September 2005 rating decision relates to an unestablished fact necessary to substantiate the claim for service connection for an acquired psychiatric disability, to include PTSD and depression, and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The September 2013 rating decision that denied the claim for entitlement to service connection for a left and right ankle disability secondary to service-connected bilateral pes planus with plantar fasciitis is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.156(b), 20.1103 (2018). 2. The additional evidence received since the September 2013 rating decision is not new and material, and the claim of entitlement for service connection for a left and right ankle disability secondary to service-connected bilateral pes planus with plantar fasciitis is not reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The November 2014 rating decision that denied the claim for entitlement to service connection for sleep apnea is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.156(b), 20.1103 (2018). 4. The additional evidence received since the November 2014 rating decision is not new and material, and the claim of entitlement to service connection for sleep apnea is not reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 5. The September 2005 rating decision that denied the claim for entitlement to service connection for gastritis and GERD is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.156(b), 20.1103 (2018). 6. The additional evidence received since the September 2005 rating decision is not new and material, and the claim of entitlement to service connection for gastritis and GERD is not reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 7. The September 2005 rating decision that denied the claim for entitlement to service connection for PTSD is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.156(b), 20.1103 (2018). 8. The evidence received since the September 2005 rating decision is new and material and sufficient to reopen the claim of service connection for PTSD. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (a) (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Marine Corps from January 1992 and January 1996. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a December 2017 rating decision by the Cleveland, Ohio Regional Office (RO) of the Department of Veterans Affairs (VA) in which the RO, inter alia, denied the application to reopen the claims for service connection for gastritis/GERD, bilateral ankle disabilities, sleep apnea, and PTSD; and, denied service connection for a left and right knee disability. The Veteran timely filed a notice of disagreement (NOD) and a substantive appeal, where he limited his appeals to the claims as decided herein. New and Material Evidence Generally, a claim that has been denied in an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105 (c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). There is a low threshold for determining whether evidence raises a reasonable possibility of substantiating a claim. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). 1. The application to reopen the previously denied claim for service connection for a left and right ankle disability secondary to service-connected bilateral pes planus with plantar fasciitis The Veteran’s claim for entitlement to service connection for a left and right ankle disability secondary to service-connected bilateral pes planus with plantar fasciitis was previously denied in a September 2013 rating decision. The pertinent evidence then of record consisted of STRs, military personnel records, and VA treatment records from February 2005 to September 2013. Service connection was denied on the basis that there was no medical evidence showing a current disability. Although notified of the September 2013 denial in an October 2013 notification letter, the Veteran did not appeal that decision, nor did he submit new and material evidence within the remaining appeal period. Accordingly, the September 2013 denial is final as to the evidence then of record, and is not subject to revision the same factual basis. See 38 U.S.C. § 7105(c); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103. Relevant evidence received more than one year since the September 2013 rating decision includes VA treatment records and a statement from the Veteran in his substantive appeal. Unfortunately, this new evidence is cumulative of evidence of record at the time of the September 2013 rating decision. The VA treatment records do not relate to an unestablished fact necessary to substantiate the merits of the claims. To the contrary, the VA treatment records prior to and since the September 2013 rating decision do not reflect a diagnosis of a left and a right ankle disability. The May 2018 substantive appeal notes the Veteran’s complaint of pain in his ankles which have already been noted in prior VA treatment records and considered by the RO. There is no new and material evidence, such as a medical diagnosis of a left or right ankle disability secondary to service-connected bilateral pes planus with plantar fasciitis, which would either relate to the basis for the prior denial or that could reasonably substantiate the claim were the claim to be reopened. Thus, the application to reopen the previously denied claim for entitlement to service connection for a left and right ankle disability secondary to service-connected bilateral pes planus with plantar fasciitis remains denied. 2. The application to reopen the previously denied claim for entitlement to service connection for sleep apnea The Veteran’s claim for entitlement to service connection for sleep apnea was previously denied in a November 2014 rating decision. The pertinent evidence then of record consisted of STRs, military personnel records, and VA treatment records. Service connection was denied on the basis that the condition neither occurred in nor was caused by service. Although notified of the November 2014 denial in a November 2014 notification letter, the Veteran did not appeal that decision, nor did he submit new and material evidence within the remaining appeal period. Accordingly, the November 2014 denial is final as to the evidence then of record, and is not subject to revision the same factual basis. See 38 U.S.C. § 7105(c); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103. Relevant evidence received more than one year since the November 2014 rating decision includes VA treatment records and a statement from the Veteran in his January 2018 notice of disagreement. Unfortunately, this new evidence is cumulative of evidence of record at the time of the November 2014 rating decision. The VA treatment records do not relate to an unestablished fact necessary to substantiate the merits of the claims. The VA treatment records reflect continued treatment of sleep apnea and no indication that sleep apnea either occurred in or was caused by service. The January 2018 statement by the Veteran reflects that he had daytime tiredness in service. While this evidence is new, it is not material in that by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. The STRs, which were available and considered at the time of the November 2014 rating decision, reflect a normal clinical evaluation on examination. Additionally, in his October 1995 self-report of medical history, the Veteran reported shortness of breath and pain or pressure in the chest, with no reports of sleepiness. There is no new and material evidence, such as an indication that the shortness of breath in service was related to the Veteran’s 2013 diagnosis of sleep apnea, which would either relate to the basis for the prior denial or that could reasonably substantiate the claim were the claim to be reopened. Thus, the application to reopen the previously denied claim for entitlement to service connection for sleep apnea remains denied. 3. The application to reopen the previously denied claim for entitlement to service connection for gastritis and GERD The Veteran’s claim for entitlement to service connection for gastritis with GERD was previously denied in a September 2005 rating decision. The pertinent evidence then of record consisted of STRs, military personnel records, and VA treatment records from September 1999 to August 2005. Service connection was denied on the basis that while STRs reflect diagnosis, treatment, and the resolve of gastritis, there is no permanent, residual, or chronic gastritis demonstrated by evidence following service. Although notified of the September 2005 denial in a September 2005 notification letter, the Veteran did not appeal that decision, nor did he submit new and material evidence within the remaining appeal period. Accordingly, the September 2005 denial is final as to the evidence then of record, and is not subject to revision the same factual basis. See 38 U.S.C. § 7105(c); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103. Relevant evidence received more than one year since the September 2005 rating decision includes VA treatment records and statements from the Veteran. Unfortunately, this new evidence is cumulative of evidence of record at the time of the September 2005 rating decision. The VA treatment records do not relate to an unestablished fact necessary to substantiate the merits of the claims. The VA treatment records reflect that in 2007 a history of gastritis was noted, in 2008 a colonoscopy was conducted which revealed hemorrhoids, and a May 2017 diagnosis of GERD. The January and February 2008 statements by the Veteran reflects that he reported that he was treated for gastritis in service and continued to have problems for which he took over the counter medication. While this evidence is new, it is not material in that by itself or when considered with previous evidence of record, it does not relate to an unestablished fact necessary to substantiate the claim. The VA treatment records and statement do not reflect that the Veteran’s gastritis and GERD was permanent, residual, or chronic. There is no new and material evidence which would either relate to the basis for the prior denial or that could reasonably substantiate the claim were the claim to be reopened. Thus, the application to reopen the previously denied claim for entitlement to service connection for gastritis and GERD remains denied. 4. The application to reopen the previously denied claim for entitlement to service connection for PTSD The Veteran’s claim for entitlement to service connection for PTSD was previously denied in a September 2005 rating decision. The pertinent evidence then of record consisted of STRs, military personnel records, and VA treatment records from September 1999 to August 2005. Service connection was denied on the basis that there was no medical evidence showing a current disability. Although notified of the September 2005 denial in a September 2005 notification letter, the Veteran did not appeal that decision, nor did he submit new and material evidence within the remaining appeal period. Accordingly, the September 2005 denial is final as to the evidence then of record, and is not subject to revision the same factual basis. See 38 U.S.C. § 7105(c); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103. Pertinent evidence added to the claims file since the September 2005 rating decision includes VA treatment records that reflect a diagnosis of depression and an indication of PTSD as well as the Veteran’s stressor statements. This evidence provides bases for reopening the claim for service connection for an acquired psychiatric disability, to include PTSD and depression. Specifically, the Veteran’s statements are new in that they were not before the agency of decision makers at the time of the September 2005 final denial of the claim for service connection, and are not duplicative or cumulative of evidence previously of record. Moreover, the new evidence submitted is material in that it relates to the basis for the prior denial, i.e., the lack of evidence establishing an acquired psychiatric disability and treatment thereof. Thus, the VA treatment records of the Veteran relate to unestablished facts necessary to substantiate the claim for service connection for an acquired psychiatric disability, to include PTSD and depression, and also raise a reasonable possibility of substantiating the claims. See Shade, 24 Vet. App. at 110. The criteria for reopening the claim for service connection for an acquired psychiatric disability, to include PTSD and depression, have therefore been met. REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disability, to include depression and posttraumatic stress disorder (PTSD) is remanded. The Board finds that further development is needed in order to decide the remaining claims on appeal. The Board recognizes that the issue on appeal was characterized by the RO as entitlement to service connection for PTSD. However, VA medical records indicate that the Veteran has also been diagnosed with depression. Therefore, the Board has recharacterized the issue more broadly to ensure complete consideration of the claim. See Clemons v. Shinseki, 23 Vet. App. 1, 4-6, 8 (2009). VA treatment records from 2008 reflect that the Veteran was diagnosed with depression, in part, due to familial issues. In 2010, the Veteran had a positive screen for depression and PTSD due to marriage, family life, and employment. In August 2011, a VA social work outreach note reflects that the Veteran had military-related PTSD. A September 2011 VA social work note reflects that the Veteran had a diagnosis of depression with the source of trauma noted as marines and basic training. The Veteran has not undergone a VA examination to address the etiology of any psychiatric disorder. A clear diagnosis of PTSD has not been found in the Veteran’s medical records. As such, a VA examination is required to determine whether the Veteran has a current psychiatric disability, to include PTSD and depression and, if so, whether it is related to service to include the claimed in-service stressor. See Arzio v. Shinseki, 602 F.3d 1343, 1347 (Fed. Cir. 2010) (there are particular requirements for establishing PTSD in 38 C.F.R. § 3.304(f) that are separate from those for establishing service connection generally under 38 C.F.R. § 3.303). 2. Entitlement to service connection for a left and right knee disability STRs reflect that in October 1992, the Veteran underwent an orthopedic examination for his bilateral pes planus. Examination notes reflect “B/L normal AJ DF [with] knee flexi + ext B/L.” The October 1995 self-report of medical history reflects that the Veteran complained of swollen or painful joints, “trick” or locked knee, and cramps in his legs. He noted that his knees “pop” and “lock up” when running. Post-service, VA treatment notes reflect that the Veteran complained of continued “locking” and pain in his knees. Additionally, the Veteran reported pain in his knee since service. The Veteran has not undergone a VA examination to determine whether he has a current bilateral knee disability and a medical opinion with rationale as to the nature and etiology of any knee disabilities. Additionally, recently the United States Court of Appeals for the Federal Circuit (Federal Circuit) issued a decision in Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). In that decision, the Federal Circuit found that the term “disability” as used in 38 U.S.C. § 1110 “refers to the functional impairment of earning capacity, not the underlying cause of said disability” and held that “pain alone can serve as a functional impairment and therefore qualify as a disability.” Consequently, a VA examination with a medical opinion by an appropriate physician is warranted to determine whether the Veteran’s bilateral knee pain causes functional impairment and whether it is related to the in-service notations of knee pain. The matter is REMANDED for the following action: 1. Schedule the Veteran for a VA examination with a psychiatrist or psychologist in order to determine the etiology of his psychiatric disorders, to include depression and PTSD. The psychiatrist/psychologist should identify all psychiatric disorders that have existed since approximately 2005 when the Veteran filed the current claim. The claims folder must be made available to and reviewed by the examiner prior to completion of the opinion, and the opinion must reflect that the claims folder was reviewed. Then, as to each diagnosed psychiatric disorder, the examiner should indicate whether it is at least as likely as not (at least a 50 percent probability) that such disorder is related to or had its onset during the Veteran’s military service. If the examiner finds that the Veteran has PTSD and other psychiatric diagnoses, then the examiner should indicate whether it is possible to distinguish PTSD symptoms from non-PTSD-related symptoms. If PTSD is diagnosed, the examiner should indicate whether it is related to a claimed in-service stressor. The examiner should consider and discuss all pertinent medical evidence, service treatment records, VA treatment records, and lay assertions, to include the Veteran’s contention of continued symptomatology beginning in service. All examination findings/results, along with complete, clearly-stated rationale for the conclusions reached, must be provided. 2. Schedule the Veteran for a VA examination with an appropriate physician in order to determine the etiology of his bilateral knee pain/locking. The physician should identify all bilateral knee disabilities that have existed since approximately 2017 when the Veteran filed the current claim. The claims folder must be made available to and reviewed by the examiner prior to completion of the opinion, and the opinion must reflect that the claims folder was reviewed. Then, as to each diagnosed bilateral knee disorder, the examiner should indicate whether it is at least as likely as not (at least a 50 percent probability) that such disability is related to or had its onset during the Veteran’s military service. The examiner should specifically note that s/he considered the in-service notations of knee locking. (Continued on the next page)   The physician should, then, indicate whether the Veteran experiences functional impairment due to bilateral knee pain. Then, the physician should indicate whether any impairment, whether or not attributed to a specific diagnosis, is at least as likely as not (50 percent probability or greater) related to an in-service disease or injury or had its onset in service. A complete rationale should accompany any opinion provided. L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Laroche, Natalie