Citation Nr: 18152643 Decision Date: 11/27/18 Archive Date: 11/23/18 DOCKET NO. 14-11 047 DATE: November 27, 2018 ORDER New and material evidence has been received, and the claim for entitlement to service connection for residuals of bilateral tibial stress fractures, claimed as right and left leg and partial loss of use of the lower extremities, is reopened. Service connection for residuals of bilateral tibial stress fractures is granted. Service connection for right knee patellofemoral syndrome and degenerative joint disease is granted. Service connection for left knee patellofemoral syndrome and degenerative joint disease is granted. REMANDED Entitlement to service connection for a low back condition is remanded. Entitlement to service connection for a right hip condition is remanded. Entitlement to service connection for a left hip condition is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include major depressive disorder, adjustment disorder, a mood disorder, bipolar disorder, and stress, is remanded. FINDINGS OF FACT 1. The RO previously denied the Veteran’s claims for entitlement to service connection for residuals of bilateral tibial stress fractures in an unappealed July 2010 rating decision. 2. The evidence received since the July 2010 rating decision regarding the Veteran’s residuals of bilateral stress fractures is 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 raises a reasonable possibility of substantiating the claim for service connection on the merits. 3. The Veteran has residual disability in his bilateral tibias that began during active service. 4. The evidence of record favors a finding that right and left knee bilateral patellofemoral syndrome and degenerative joint disease are proximately due to the Veteran’s service-connected residuals of bilateral tibial stress fractures. CONCLUSIONS OF LAW 1. The July 2010 rating decision denying service connection for residuals of bilateral tibial stress fractures is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.105 (a), 3.156(b) (2018). 2. New and material evidence has been received to reopen the claim for entitlement to service connection for residuals of bilateral tibial stress fractures. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (a) (2018). 3. The criteria for service connection for residuals, bilateral tibial stress fractures, are met. 38 U.S.C. §§ 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a) (2018). 4. The criteria for service connection for right and left knee bilateral patellofemoral syndrome and degenerative joint disease are met. 38 U.S.C. §§ 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from July 2001 to May 2002. On his October 2014 VA Form 9, the Veteran requested a videoconference hearing before a member of the Board. A hearing was scheduled for July 6, 2017 and then subsequently rescheduled for April 3, 2018 after the Veteran indicated that he could not attend the first hearing. The Veteran failed to report for the rescheduled hearing. VA has received no communication from the Veteran or his representative pertaining to the hearing. Because the Veteran failed to appear for his scheduled hearing without good cause and there has been no request for postponement, his request for a hearing is considered withdrawn. 38 C.F.R. § 20.704(d). New and Material Evidence – Residuals of Bilateral Tibial Stress Fractures VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of the claimant. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). For applications to reopen filed after August 29, 2001, as in this case, new and material evidence means evidence not previously submitted to agency decisionmakers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is 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 which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, “credibility” of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). The United States Court of Appeals for Veterans Claims (Court) has held that the threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). The RO last denied the Veteran’s claim of entitlement to service connection for residuals of bilateral tibial stress fractures in a July 2010 rating decision, on the basis that the Veteran did not have a current residual disability associated with the in-service history of tibial stress fractures. Although the Veteran filed an application to reopen this claim within one year of the July 2010 rating decision, new and material evidence was not submitted within the same year. The agency of original jurisdiction (AOJ) denied the Veteran’s February 2011 application to reopen in June 2011. Within one year of this determination, new and material evidence was received, in the form of an August 2011 private opinion, sufficient to be considered with the February 2011 claim pending at the beginning of the appeal period. The AOJ considered this evidence in a January 2012 rating decision that reopened and denied the Veteran’s claim. The Veteran’ filed a timely notice of disagreement and perfected this appeal. Based on the procedural history outlined immediately above, the Board finds that the July 2010 rating decision is final. 38 U.S.C. §7105; 38 C.F.R. §§ 3.156(b), 20.302, 20.1103. However, the Veteran’s February 2011 application to reopen remains at issue based on the submission of new and material evidence within one year of the June 2011 rating decision under the provisions of 3.156(b). Evidence received since the July 2010 rating decision denying service connection for residuals of bilateral tibial stress fractures includes a private medical opinion dated August 2011, the report of a VA examination from November 2011, and lay statements from the Veteran. The Board observes that in the August 2011 private medical opinion, Dr. P.J.Y. identified residual disability associated with the Veteran’s in-service tibial stress fractures. This opinion evidence relates to the open questions of current disability and nexus. The evidence is new, material, and serves to reopen the claim. Service Connection A. Residuals of Bilateral Tibial Stress Fractures The Veteran contends that he has residual pain in his bilateral tibial region that stems from bilateral tibial fractures he sustained in service. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). The Board concludes that the Veteran has a current diagnosis of residual pain from bilateral tibial stress fractures that is related to his in-service tibial fractures. See August 2011 Dr. P.J.Y. opinion; November 2011 VA examination report. A private medical opinion dated in August 2011 authored by Dr. P.J.Y. indicates that the Veteran suffers from residuals of unfavorably resolved stress fractures of the tibia on both legs. Dr. P.J.Y. noted that the Veteran experiences pain in varying degrees in the fracture areas that continues and intensifies with walking, standing as well as climbing or descending stairs. Dr. P.J.Y. noted observable distortion of the tibia of both legs that was externally visible. Importantly, Dr. P.J.Y. recognized the Veteran’s in-service history of pain in his lower extremities and diagnosis of stress fractures in the tibia of both legs. He noted that the Veteran continued to have difficulties with his lower extremities and suffered from residuals of unfavorably resolved stress fractures. He said that it was a permanent condition. The November 2011 VA examiner noted a diagnosis of residual pain in the bilateral tibial area, but did not provide a nexus opinion as to that disability. The Board finds that the opinion of Dr. P.J.Y. is probative in the resolution of the claim. Dr. P.J.Y. examined the Veteran and noted his in-service history of bilateral tibial stress fractures, ultimately concluding that the Veteran has continued to demonstrate residual pain related to that in-service injury. Dr. P.J.Y.’s finding is bolstered by an August 2012 VA treatment note, which showed that the Veteran sought treatment for pain in the legs, which was similarly attributed to his in-service stress fracture injury. Accordingly, the Board finds that service connection is warranted for residuals of bilateral tibial stress fractures. B. Bilateral Knees Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). To prevail on a claim for secondary service connection, the record must show (1) current disability, (2) a service-connected disability, and (3) medical nexus evidence establishing a connection between the current and the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). The Veteran has diagnoses of bilateral patellofemoral syndrome and degenerative joint disease of both knees. See August 2011 Dr. P.J.Y. opinion; November 2011 VA examination report. In this decision, the Board has granted service connection for residuals of bilateral stress fractures. Thus, the key issue is whether there is medical evidence establishing a link between the current disability and service-connected disability. The Board finds that such a link has as least as likely as not been established. In this regard, the opinion of Dr. P.J.Y. indicated that the Veteran started to have pain in both knees after his tibia fractures. The pain developed to swelling with clicking, popping, and grinding, and the Veteran indicated that his knees gave out on him at random, causing falls. On examination, Dr. P.J.Y. observed edema, clicking, popping, and crepitus. He diagnosed degenerative joint disease of both knees that he opined was more likely than not related to the altered gait and chronic weight shifting caused by unfavorably resolved stress fractures of the bilateral tibiae. The Veteran provided a similar history to the November 2011 VA examiner, indicating that his bilateral knee pain began after he sustained bilateral tibia stress fractures in service. The examiner opined that the Veteran’s knee conditions were less likely than not related to service because the examiner was unable to explain his knee pain based on his previous tibia stress fractures alone. The Board finds that, given the findings of both examiners, the evidence is at least in equipoise that the Veteran’s bilateral knee condition is related to his now service-connected residuals of bilateral tibia stress fractures. The Veteran has provided consistent lay statements attributing the pain in his knees to his tibia injuries in service. The VA examiner did not provide a rationale for the opinion that the Veteran’s current knee conditions were unrelated to his service-connected condition, while Dr. P.J.Y. attributed the Veteran’s knee conditions to an altered gait and chronic weight shifting caused by the unfavorably resolved stress fractures. Resolving all doubt in the Veteran’s favor, the Board finds that the Veteran’s bilateral knee condition has been medically linked to his service-connected disability. Service connection for the Veteran’s right and left knee disabilities is granted on a secondary basis. REASONS FOR REMAND Initially, the Board observes a statement dated April 2011 wherein the Veteran indicated that he did not receive consistent medical treatment due to a lack of health insurance and/or employment that would have provided health insurance. Subsequently, it appears that as of August 2012, the Veteran initiated VA medical treatment, however, there are no VA treatment records dated after August 2012. As subsequent VA treatment records may bear on the all claims at issue, the Board finds that all outstanding treatment records should be obtained. 1. Service connection for a low back condition is remanded. 2. Service connection for a bilateral hip condition. In this decision, the Board has granted service connection for residuals of bilateral tibial stress fractures. The Veteran has submitted a private medical opinion dated in August 2011 wherein Dr. P.J.Y. opined as to the etiologies of the Veteran’s low back and hip conditions. The Veteran also underwent a VA examination in November 2011 for his claimed back condition. Regarding the Veteran’s back, Dr. P.J.Y. opined that the Veteran had advanced degenerative joint disease that was more likely than not related to the chronic weight shifting and altered gait caused by unfavorably resolved stress fractures of the tibiae. In contrast, the November 2011 VA examiner diagnosed lumbar back strain and opined that he was unable to relate it to any incident of service or in-service injury. The VA examiner specifically noted that there was no radiographic evidence of degenerative joint disease. Accordingly, given the conflicting diagnoses, the Board finds that the Veteran should undergo an additional back examination to clarify any existing diagnoses and their etiologies. Regarding the Veteran’s claimed hip disabilities, Dr. P.J.Y. did not offer a formal diagnosis, and no VA examination has been provided to the Veteran for his hips. Given the award of service connection for residuals of bilateral tibial stress fractures, and the Veteran’s assertion that hip pain may stem from that condition, the Board finds that the Veteran should undergo a VA examination to clarify whether the Veteran has any existing hip diagnoses, and if so, their etiologies. 3. Service connection for an acquired psychiatric disorder, to include adjustment disorder, mood disorder, bipolar disorder, and stress. Initially, the Board notes that the Veteran has been diagnosed, at various times in service and post-service, with major depressive disorder, adjustment disorder with depressed mood, mood disorder, not otherwise specified (NOS), bipolar disorder, and stress. In light of the various diagnoses of record, the Board has recharacterized the issue on appeal as entitlement to service connection for any acquired psychiatric disability. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Veteran was afforded a VA mental disorders examination in November 2011. The VA examiner noted a diagnosis of mood disorder, NOS and opined that the current mood disorder was not the same as the adjustment disorder he experienced in service. The examiner further opined that he maybe had some maladaptive personality traits that interfered with his ability to cope with stress, however, those personality traits were not incurred in service, but began developing prior to service and were likely to be a lifelong part of his character. Thus, the examiner concluded that the current mood symptoms were likely to have stemmed from such personality traits. A July 2011 private opinion authored by Dr. W.A. referenced that some psychological symptoms may have pre-existed service, but then did not draw a conclusion as to whether those symptoms were aggravated during service. Rather, the Dr. W.A. merely stated that his bipolar symptoms were as likely as not service-connected. The Veteran’s December 2000 enlistment examination do not note any pre-existing psychiatric condition. Accordingly, on remand, the Board finds that the Veteran should be afforded another VA examination to assess the etiology of the Veteran’s claimed psychiatric disability. The matters are REMANDED for the following action: 1. Obtain all VA treatment records dated from August 2012. Contact the Veteran and request that he identify, submit or authorize VA to obtain any additional private treatment records not already on file that he believes are pertinent to his appeal. 2. Schedule the Veteran for appropriate back and hip examinations. The examiner should conduct appropriate imaging studies, if medically warranted. Upon review of the file, the examiner(s) are asked to address the following: (a.) Back i. Identify any low back diagnoses that have existed since June 2011. ii. Is it at least as likely as not (50 percent or greater probability) that the Veteran has a low back disability that had onset in, or is otherwise related to his period of service, to include the complaint of low back pain noted in April 2002? iii. Is it at least as likely as not (50 percent or greater probability) that any diagnosed low back disability has been caused or aggravated beyond its natural progression by the Veteran’s now service-connected residuals of bilateral tibial stress fractures and/or bilateral knee disabilities? (b.) Hips i. Identify any hip diagnoses that have existed since June 2011. ii. Is it at least as likely as not (50 percent or greater probability) that the Veteran has a hip disability that had onset in, or is otherwise related to his period of service? iii. Notwithstanding the above, is it at least as likely as not (50 percent or greater probability) that any diagnosed hip disability has been caused or aggravated beyond its natural progression by the Veteran’s now service-connected residuals of bilateral tibial stress fractures and/or bilateral knee disabilities? 3. Schedule the Veteran for an appropriate VA psychiatric examination. The examiner should review the Veteran’s claims file, and take a history from the Veteran as to the progression of his psychiatric disabilities. (a.) Identify any acquired psychiatric disorder for which the Veteran has had a diagnosis since filing this claim in 2009. In providing a response, please note that the Veteran has previously been diagnosed with major depressive disorder, adjustment disorder, mood disorder, bipolar disorder, stress, and narcissistic personality traits. If current diagnoses conflict with prior diagnoses, or do not include prior diagnoses, the examiner should attempt to reconcile prior and current findings to the extent possible. In so doing, the examiner must address the findings of Dr. W.A.’s July 2011 opinion. (b.) Is there clear and unmistakable evidence (i.e., is it undebatable) that the Veteran had a psychiatric disorder prior to his active duty service? (c.) If the answer to question (a) above is “yes,” is there also clear and unmistakable evidence (i.e., is it also undebatable) that the pre-existing psychiatric disorder did not undergo an increase in severity beyond its natural progression during the Veteran’s active duty service? (d.) If the answer to either question (b) or (c) is “no,” assume as true that the Veteran entered service without that disability. Then, with this assumption in mind, is it at least as likely as not (50 percent or greater probability) that the psychiatric disorder had onset in, or is otherwise related the Veteran’s military service? A complete rationale should accompany any opinion offered. 4. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issues on appeal. If the benefits sought on appeal remain denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case and be afforded a reasonable period of time within which to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Polly Johnson, Associate Counsel