Citation Nr: 18160777 Decision Date: 12/28/18 Archive Date: 12/27/18 DOCKET NO. 17-52 314 DATE: December 28, 2018 ORDER New and material evidence having been received, the claim of service connection for a left knee disability is reopened. New and material evidence having been received, the claim of service connection for a right knee disability is reopened. Entitlement to service connection for a left knee disability is granted. Entitlement to service connection for right knee disability is granted. Entitlement to service connection for posttraumatic stress disorder (PTSD) is granted. REMANDED Whether new and material evidence has been received to reopen the claim of service connection for a right hip disability is remanded. Entitlement to a rating in excess of 10 percent for lumbar osteoarthritis is remanded. FINDINGS OF FACT 1. In an unappealed December 2005 rating decision, the RO denied service connection for left knee and right knee disabilities. 2. The evidence submitted since the December 2005 rating decision is not cumulative or redundant and raises a reasonable possibility of substantiating the underlying claims for service connection for left knee and right knee disabilities. 3. The Veteran’s left knee disability is related to an in-service injury. 4. The Veteran’s right knee disability is related to an in-service injury. 5. The Veteran’s PTSD diagnosis is related to in-service stressors, including fear of hostile military activity. CONCLUSIONS OF LAW 1. New and material evidence has been received sufficient to reopen the Veteran’s claim of service connection for a left knee disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. New and material evidence has been received sufficient to reopen the Veteran’s claim of service connection for a right knee disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for service connection for a left knee disability are met. 38 U.S.C. §§ 1110, 1111, 5107(b); 38 C.F.R. § 3.303(a). 4. The criteria for service connection for a right knee disability are met. 38 U.S.C. §§ 1110, 1111, 5107(b); 38 C.F.R. § 3.303(a). 5. The criteria for service connection for PTSD have been met. 38 U.S.C. §§ 1110, 5103, 5107; 38 C.F.R. §§ 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from January 2001 to April 2005, with service in Southwest Asia. New and Material Evidence Governing regulations provide that an appeal consists of a timely filed notice of disagreement in writing and, after a statement of the case has been furnished, a timely filed substantive appeal. 38 C.F.R. § 20.200. Rating actions from which an appeal is not timely perfected become final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. A final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C. § 5108. In general, if new and material evidence is presented or secured with respect to a finally adjudicated claim, VA shall reopen and review the claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 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(a). In determining whether new and material evidence has been submitted, the Board must consider the specific reasons for the prior denial. Evans v. Brown, 9 Vet. App 273, 283 (1996); Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). The provisions of 38 C.F.R. § 3.156(a) create a low threshold, with the phrase raises a reasonable possibility of substantiating the claim enabling rather than precluding reopening and not constituting a third requirement that must be met before the claim is reopened. See Shade v. Shinseki, 24 Vet. App. 110 (2010). In a December 2005 rating decision, the RO denied the Veteran’s claims for service connection for left knee, and right knee disabilities. The RO acknowledged the Veteran’s in-service treatment for bilateral knee pain but determined that there was no evidence or permanent or chronic disability after service to warrant service connection. The Veteran was notified of the denial of his claims but did not appeal the December 205 rating decision or submit pertinent evidence during the appeal period. Thus, the December 2015 rating decision is final. Evidence received since the December 2005 rating decision includes medical records showing current diagnosis of degenerative joint disease of the bilateral knees, as well as medical opinions regarding its etiology. The Board finds that the evidence submitted since the December 2005 rating decision is new and material. The evidence is new in that it was not previously considered by agency decisionmakers. The Board notes that it is not cumulative or redundant of the evidence previously of record. Moreover, it raises a reasonable possibility of substantiating the claims in that it relates to previously unestablished fact necessary, namely current knee diagnoses. Accordingly, reopening of the claims of entitlement to service connection for left and right knee disabilities is warranted. Service Connection Service connection will be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, a Veteran must show “(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-the so-called ‘nexus’ requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. When the evidence supports the claim or is in relative equipoise, the claim will be granted. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); see also Wise v. Shinseki, 26 Vet. App. 517, 532 (2014). If the preponderance of the evidence weighs against the claim, it must be denied. Id.; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). 1. Entitlement to service connection for a left knee disability 2. Entitlement to service connection for right knee disability The Veteran contends that his right and left knee disabilities are related to service. In September 2017, the Veteran was provided with VA examinations for the right and left knees. The examiner reviewed the Veteran’s medical history and noted in-service medical treatment for bilateral knee pain in January 2002. The examiner also found that the Veteran was evaluated on almost a monthly basis between July 2002 and November 2002 for bilateral knee pain. The examiner found that the Veteran continued to experience symptomatology for this condition after separation from military service. Based on this medical history, the examiner concluded that the Veteran’s right and left knee disability were at least as likely as not incurred in or caused by an in-service injury, event, or disease. There is no medical opinion in the record which contradicts the findings of the VA examiner regarding the Veteran’s right and left knee disabilities. Therefore, the Board concludes that the evidence of record is at least in equipoise concerning whether the Veteran’s right and left knee disabilities are etiologically related to the Veteran’s active service. Accordingly, the Board will resolve the benefit of the doubt in favor of the Veteran in this case as the law requires and grant service connection for right and left knee disabilities. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 3. Entitlement to service connection for posttraumatic stress disorder (PTSD) A. Law Service connection for PTSD requires medical evidence of a diagnosis of PTSD conforming to the requirements of section 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f); see also 38 C.F.R. §4.125 (a); Cohen v. Brown, 10 Vet. App. 128, 138 (1997). If the evidence shows that a veteran engaged in combat with the enemy and the claimed stressor is consistent with the circumstances of service, lay statements alone may be enough to establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304 (f)(2). Additionally, a stressor may be established with lay statements alone if the veteran claims a stressor due to fear of hostile military or terrorist activity, the claimed stressor is consistent with the circumstances of service, and a VA or VA-contracted psychiatrist or psychologist confirms that the claimed stressor is adequate to support a PTSD diagnosis and that the veteran’s symptoms are related to the claimed stressor. 38 C.F.R. § 3.304(f)(3). B. Analysis The Veteran contends that he suffers from PTSD as a result of his fear of hostile activity while he participated in combat activity during the Iraq War. In April 2014, a private psychologist found that the Veteran suffers from anxiety disorder due to chronic pain. The chronic pain was noted to be a result of a truck accident while serving in a combat zone in Iraq. At a September 2017 VA mental health examination, the Veteran was confirmed to have a diagnosis of PTSD that conforms to the DSM-5 criteria. He identified multiple stressors that occurred while in service during the Iraq War, which included “the day to day reality that he could easily die that day”; being involved in a motor vehicle accident that injured his back; “having to live with just being missed by IED’s every day”; and seeing children shot dead in the road. The VA examiner noted that the Veteran’s stressors were related to his fear of hostile military or terrorist activity and supported his PTSD diagnosis. The examiner identified the Veteran’s PTSD symptoms to include his separate diagnosis of anxiety disorder. Based on a review of the record, the Board finds that the criteria for service connection for PTSD have been met. See 38 C.F.R. § 3.303. The Veteran’s service personnel records show that he served in Kuwait as a motor transport operator. As such, the Veteran’s lay statements regarding his in-service stressor due to fear of hostile military activity are consistent with the circumstances of service in Southwest Asia. A VA psychiatrist has confirmed a diagnosis of PTSD based on the Veteran’s symptoms related to the claimed stressor. See 38 C.F.R. § 3.304(f)(3). Based on the foregoing, the Board finds that the evidence is at least in equipoise that the Veteran’s diagnosed PTSD is related to stressful incidents that took place in service related to a fear of hostile military activity. Accordingly, affording the Veteran the benefit of the doubt, the Board finds that the evidence supports a grant of service connection for PTSD, to include as due to fear of hostile military or terrorist activity. See 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS FOR REMAND 1. Whether new and material evidence having been received to reopen the claim of service connection for a right hip disability. The Veteran underwent a VA examination in September 2017 for his application to reopen the previously denied claim seeking service connection for a right hip disability. However, the examiner did not specify whether the Veteran currently has a right hip diagnosis. Moreover, the examiner incorrectly stated that there is no evidence that the Veteran was evaluated for right hip pain during active duty, despite March 2004 service treatment records documenting his report of right hip pain. Given this, a new examination is needed to determine whether the Veteran currently has a right hip disorder and whether such is related to his in-service hip symptomatology. 2. Entitlement to a rating in excess of 10 percent for lumbar osteoarthritis is remanded. Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran’s claims so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The September 20, 2017 Statement of the Case did not review or consider a September 5, 2017 VA spine examination. Under 38 C.F.R. § 20.1304(c), the Veteran may waive his right to have any pertinent evidence submitted by him or his representative reviewed by the Agency of Original Jurisdiction (AOJ) in the first instance. In this case, the evidence was not submitted by the Veteran and no waiver has been provided. Therefore, the VA examination evidence must be considered by the AOJ in the first instance, and the claim must be remanded. 38 C.F.R. §§ 19.37(b), 20.1304(c). The matter is REMANDED for the following action: 1. Obtain any outstanding VA and private medical records pertinent to the claims remaining on appeal. 2. Schedule the Veteran for a VA examination by an appropriate examiner for his right hip claim. The claims file, to include a copy of this Remand, must be made available to the examiner for review, and the examination report must reflect that such review was conducted. The examiner is asked to identify all right hip diagnoses present since the Veteran filed his claim in January 2012. For each right hip diagnosis identified, opine whether it is as least as likely as not (50 percent probability or greater) that the disorder is etiologically related to active duty service. In providing the requested opinion, the examiner must discuss the service treatment records documenting his in-service report of right hip pain and right lower extremity symptomatology. A complete rationale should be given for all opinions proffered. 3. Send the Veteran and his representative a supplemental statement of the case that addresses the issues of increased rating for service-connected lumbar osteoarthritis. The supplemental statement of the case must consider the pertinent September 2017 VA examination. DELYVONNE M. WHITEHEAD Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Casey, Associate Counsel