Citation Nr: 18156374 Decision Date: 12/11/18 Archive Date: 12/07/18 DOCKET NO. 16-40 277 DATE: December 11, 2018 ORDER The petition to reopen the previously denied claim of entitlement to service connection for a right ankle disability, based on the receipt of new and material evidence, is granted. The petition to reopen the previously denied claim of entitlement to service connection for a skin condition disability, based on the receipt of new and material evidence, is granted. The petition to reopen the previously denied claim of entitlement to service connection for posttraumatic stress disorder (PTSD), based on the receipt of new and material evidence, is granted. REMANDED Entitlement to service connection for a right ankle disability is remanded. Entitlement to service connection for a skin condition is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is remanded. Entitlement to service connection for a left ankle disability is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for headaches is remanded. Entitlement to a rating in excess of 10 percent for bilateral chondromalacia is remanded. FINDINGS OF FACT 1. An March 1999 rating decision denied the claim of entitlement to service connection for a right ankle disability; the Veteran initiated, but did not perfect a timely appeal of this decision. 2. Evidence received since the final March 1999 rating decision is not cumulative or redundant of the evidence of record at the time of the prior final rating decision and raises a reasonable possibility of substantiating the Veteran’s claim of entitlement to service connection for a right ankle disability. 3. An October 2004 rating decision continued the denial of the claim of entitlement to service connection for a skin condition; the Veteran did not appeal and this denial became final. 4. Evidence received since the final October 2004 rating decision is not cumulative or redundant of the evidence of record at the time of the prior final rating decision and raises a reasonable possibility of substantiating the Veteran’s claim of entitlement to service connection for a skin condition. 5. A January 2011 rating decision denied the claim of entitlement to service connection for PTSD; the Veteran did not appeal and this denial became final. 6. Evidence received since the final January 2011 rating decision is not cumulative or redundant of the evidence of record at the time of the prior final rating decision and raises a reasonable possibility of substantiating the Veteran’s claim of entitlement to service connection for PTSD. CONCLUSIONS OF LAW 1. The March 1999 rating decision that denied service connection for a right ankle disability is final. 38 U.S.C. §§ 5108, 7105(c) (2012); 38 C.F.R. §§ 3.104, 20.200, 20.302, 20.1103 (2018). 2. New and material evidence has been received sufficient to reopen the previously denied claim of entitlement to service connection for a right ankle disability. 38 U.S.C. §§ 5108, 7105(c) (2012); 38 C.F.R. §§ 3.156, 20.1103 (2018). 3. The October 2004 rating decision that continued the denial of service connection for a skin condition is final. 38 U.S.C. §§ 5108, 7105(c) (2012); 38 C.F.R. §§ 3.104, 20.200, 20.302, 20.1103 (2018). 4. New and material evidence has been received sufficient to reopen the previously denied claim of entitlement to service connection for a skin condition. 38 U.S.C. §§ 5108, 7105(c) (2012); 38 C.F.R. §§ 3.156, 20.1103 (2018). 5. The January 2011 rating decision that denied service connection for PTSD is final. 38 U.S.C. §§ 5108, 7105(c) (2012); 38 C.F.R. §§ 3.104, 20.200, 20.302, 20.1103 (2018). 6. New and material evidence has been received sufficient to reopen the previously denied claim of entitlement to service connection for PTSD. 38 U.S.C. §§ 5108, 7105(c) (2012); 38 C.F.R. §§ 3.156, 20.1103 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1985 to September 1991. In his June 2014 notice of disagreement, the Veteran indicated that he disagreed with the “evaluation of disability” and “effective date of award” assigned by the February 2014 rating decision (currently on appeal) for his service-connected bilateral chondromalacia. However, the February 2014 rating decision continued the 10 percent rating assigned for his bilateral chondromalacia and did not award any benefits; thus, there was no effective date of an award to disagree with. See Rudd v. Nicholson, 20 Vet. App. 296 (2006); see also Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). New and Material Evidence Where a claim has been finally adjudicated, a claimant must present new and material evidence to reopen the previously denied claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). New evidence is evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156(a). Material evidence is evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence cannot be either cumulative or redundant of the evidence of record at the time of the last prior final denial and must raise a reasonable possibility of substantiating the claim. Id. For the purposes of reopening a claim, newly submitted evidence is generally presumed to be credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). New and material evidence is not required as to each previously unproven element of a claim in order to reopen. Shade v. Shinseki, 24 Vet. App. 110, 120 (2010). There is a low threshold for determining whether evidence raises a reasonable possibility of substantiating a claim. Id. at 117–18. 1. New and material evidence to support entitlement to service connection for a right ankle disability. The Regional Office (RO) denied service connection for a right ankle disability in a March 1999 rating decision based essentially on a finding that the Veteran did not have a current right ankle disability. The Veteran was notified of this decision, and although he initiated an appeal by filing a March 2000 notice of disagreement with that decision, he did not perfect his appeal subsequent to the issuance of an April 2000 statement of the case; therefore, the March 1999 rating decision is final. The pertinent evidence received since the March 1999 rating decision includes an August 2010 treatment record wherein the Veteran stated that he had right ankle pain. The Veteran’s range of motion was evaluated but no other testing was completed. The August 2010 treatment record is new, as it was not previously of record. As it relates to an unestablished fact, by itself or when considered with other evidence, necessary to substantiate the claim, the Board finds that new and material evidence has been submitted and the petition to reopen the claim for service connection for a right ankle disability must be granted. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 2. New and material evidence to support entitlement to service connection for a skin condition. The RO denied service connection for a skin condition in a March 1999 rating decision based essentially on a finding that the Veteran did not have a chronic skin condition. The Veteran was notified of this decision, and although he initiated an appeal by filing a March 2000 notice of disagreement with that decision, he did not perfect his appeal subsequent to the issuance of an April 2000 statement of the case; therefore, the March 1999 rating decision is final. Thereafter, the Veteran sought to reopen his claim in September 2003. In an October 2004 rating decision, the RO continued the denial of service connection for a skin condition finding that no new and material evidence had been submitted since the March 1999 rating decision. In the year following the October 2004 rating decision, the Veteran did not submit any statements expressing disagreement with that determination nor did he submit any documents concerning the claim of service connection for a skin condition that could be considered new and material evidence. 38 C.F.R. §§ 3.156(b), 20.302. Therefore, the October 2004 decision became final. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. The pertinent evidence received since the October 2004 rating decision includes an August 2010 VA examination diagnosing the Veteran with dry skin. The Veteran’s diagnosis of dry skin is new, as it was not previously of record. As it relates to an unestablished fact, by itself or when considered with other evidence, necessary to substantiate the claim, the Board finds that new and material evidence has been submitted and the petition to reopen the claim for service connection for a skin condition must be granted. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. New and material evidence to support entitlement to service connection for PTSD. The RO denied service connection for a left arm disability in January 2011 based on a finding that the Veteran did not have a diagnosis of PTSD. In reaching this conclusion, the RO found, in pertinent part, that a December 2010 psychological VA examination did not include a diagnosis of PTSD and that the Veteran did not provide evidence to substantiate his claim of receiving treatment for PTSD. In the year following the decision, the Veteran did not submit any statements expressing disagreement with the denial of service connection for PTSD nor did he submit any documents concerning the claim of service connection for PTSD that could be considered new and material evidence. 38 C.F.R. §§ 3.156(b), 20.302. Therefore, the January 2011 decision became final. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. The pertinent evidence received since the January 2011 rating decision includes a September 2013 positive screening for PTSD and an October 2013 treatment record that includes a diagnostic impression of PTSD. The positive screen for and diagnostic impression are new, as it was not previously of record. As it relates to an unestablished fact, by itself or when considered with other evidence, necessary to substantiate the claim, the Board finds that new and material evidence has been submitted and the petition to reopen the claim for service connection for PTSD must be granted. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS FOR REMAND 1. The issue of service connection for sleep apnea is remanded. The Veteran’s claim for service connection for sleep apnea was denied because treatment records did not include a diagnosis of or symptoms related to sleep apnea. Treatment records from September 2013 and November 2013 note sleep-related problems. Therefore, the Board finds that the Veteran should be afforded a VA examination to determine whether he has a diagnosis of sleep apnea and, if yes, whether it is etiologically related to service. 2. The issues of service connection for an acquired psychiatric disorder, to include PTSD; service connection for a skin condition; service connection for right and left ankle disabilities; service connection for headaches; and a rating in excess of 10 percent for bilateral chondromalacia are remanded. As an initial matter, the Board notes that the Veteran’s claim for service connection for PTSD has been recharacterized to encompass any acquired psychiatric disorder diagnosis. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). In November 2014 and January 2016, the Veteran failed to report to appointments for VA examinations concerning his claimed PTSD, skin condition, right and left ankle disabilities, and his service-connected bilateral chondromalacia. In February 2016, the Veteran called to state that he missed his scheduled VA examinations because he never received notification of the appointments. The Report of Contact requested that the Veteran’s appointments be rescheduled; however, there is no evidence on the record indicating that these appointments were in fact rescheduled. Therefore, the Board finds that the Veteran should be afforded VA examinations for the issues of service connection for PTSD, service connection for skin condition, service connection for right and left ankle disabilities, and an increased rating for his service-connected bilateral chondromalacia. In a March 2017 correspondence, the Veteran’s attorney included a June 2015 private examination, wherein the private examiner opined that the Veteran’s headaches were due to his psychiatric disorder. As the issue is inexorably intertwined with the issue of service connection for an acquired psychiatric disorder, the Board finds that the Veteran should also be afforded a VA examination for headaches. The matters are REMANDED for the following actions: 1. Schedule the Veteran for a VA examination by an examiner with appropriate expertise to determine the nature and etiology of his alleged sleep apnea. If a diagnosis is rendered, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that the sleep disorder is etiologically related to active service. A discussion of the complete rationale for all opinions expressed should be included in the examination report, to include reference to pertinent evidence where appropriate. 2. Schedule the Veteran for an appropriate examination by a VA clinician to determine the nature and etiology of his alleged psychiatric disorder(s). Based on the examination results and a review of the record, the examiner should provide an opinion as to whether the Veteran has any psychiatric disorders. For each psychiatric disorder diagnosed, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that each psychiatric disorder is etiologically related to active service. A discussion of the complete rationale for all opinions expressed should be included in the examination report, to include reference to pertinent evidence where appropriate. 3. Schedule the Veteran for a VA examination by an examiner with appropriate expertise to determine the nature and etiology of his alleged skin condition. If a diagnosis is rendered, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that the skin condition is etiologically related to active service. A discussion of the complete rationale for all opinions expressed should be included in the examination report, to include reference to pertinent evidence where appropriate. 4. Schedule the Veteran for a VA examination by an examiner with appropriate expertise to determine the nature and etiology of his alleged right and left ankle disabilities. If a diagnosis is rendered, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that each ankle disability is etiologically related to active service. A discussion of the complete rationale for all opinions expressed should be included in the examination report, to include reference to pertinent evidence where appropriate. 5. Schedule the Veteran for a VA examination by an examiner with appropriate expertise to determine the nature and etiology of his alleged headaches. If a diagnosis is rendered, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that the headaches are etiologically related to active service. The examiner should also provide an opinion as to whether it is at least likely as not (50 percent or better probability) caused or aggravated by any acquired psychiatric disorder. A discussion of the complete rationale for all opinions expressed should be included in the examination report, to include reference to pertinent evidence where appropriate. 6. Schedule the Veteran for a VA examination by an examiner with appropriate expertise to determine the nature and severity of the Veteran’s service-connected right knee disability. The electronic claims file must be made accessible to, and be reviewed by, the examiner. All appropriate tests and studies should be performed and all findings should be set forth in detail. In the examination report, the examiner should delineate all symptoms or pathology attributable to the service-connected bilateral chondromalacia. The examiner should assess the severity of each symptom and specifically note whether and to what extent there is functional loss consisting of the inability to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. The examiner should state whether the Veteran’s bilateral chondromalacia results in loss of motion due to pain, excess fatigability, weakened movement, or incoordination, and if there is such loss of motion, the examiner should state at what point, in degrees of extension and/or flexion, the loss of motion occurs. The examiner should ensure that the range of motion studies include passive and active motion of the knees, as well as testing of knee motion in weight-bearing and nonweight-bearing positions. The examiner must address the Veteran’s report of instability and, based on the knowledge of the medical community at large, offer an opinion as to the effect of those flare-ups, if any, on the range of motion of his right knee. The examiner should consider all evidence, including the Veteran’s lay statements, when writing the report. The examiner must provide a complete rationale for all opinions rendered. If the examiner determines that explanations for one or more of the matters on remand are not feasible, the examiner must explain why such an opinion is not possible. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Shah, Associate Counsel