Citation Nr: 1807944 Decision Date: 02/07/18 Archive Date: 02/20/18 DOCKET NO. 14-18 337 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for a bilateral knee disability; and if so, whether service connection is warranted. 2. Entitlement to service connection for a bilateral hand disability. 3. Entitlement to service connection for hypertension. 4. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and to include as due to military sexual trauma (MST). REPRESENTATION Appellant represented by: Wisconsin Department of Veterans Affairs ATTORNEY FOR THE BOARD B. N. Quarles, Associate Counsel INTRODUCTION The Veteran was a member of the Army National Guard from July 1980 to May 2001 and served on active duty from January 1985 to April 1989, with additional periods of service with the National Guard. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. The Board remanded the appeal in September 2016 for further development. The Board notes that by March 2003 rating decision, the RO initially denied service connection for a bilateral hand disability. The Veteran filed a notice of disagreement (NOD) in October 2003 and the RO issued a statement of the case (SOC) in June 2005. However, the Veteran did not submit a substantive appeal, VA Form 9. Therefore, the decision became final. 38 C.F.R. § 20.302. At the time of the final March 2003 RO rating decision, there were some service treatment records (STRs) associated with the claims file, which were from the Veteran's National Guard service. In April 2011, the Veteran filed a claim to reopen a claim for entitlement to service connection for a bilateral hand disability. As noted above, by June 2012 rating decision, the RO found that new and material evidence had not been submitted to reopen the claim. However, in May 2009, additional STRs were added to the claims folder, which were not of record at the time of the March 2003 rating decision. Significantly, these STRs revealed additional in-service treatment and notations relevant to the low back condition on appeal, to include "tingling and numbness in hands" in April 1995. The record specifically notes the "soldier" was to be on light duty for 8 hours and to PT at his own discretion. Governing regulation provides that, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official STRs that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of this section, which concerns the need to have new and material evidence to reopen the claim under normal circumstances. See 38 C.F.R. § 3.156(c). As these additional STRs are relevant to the issue on appeal, the claim for service connection for a bilateral hand disability must be reconsidered, on a de novo basis, without the need to address whether there is new and material evidence to reopen the low back disorder claim. Id. Generally, the scope of a mental health disability claim includes any psychiatric disorder that may reasonably be encompassed by a veteran's description of the claim, reported symptoms, and the other information of record. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The issues of entitlement to service connection for a bilateral hand disability, entitlement to service connection for hypertension, and entitlement to service connection for an acquired psychiatric disorder, to include PTSD and to include as due to MST are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The RO denied service connection for a bilateral knee disability in March 2003 and notified the Veteran of its decision and of her right file a substantive appeal after issuance of the statement of the case in June 2005. The Veteran did not perfect an appeal. 2. Since the final March 2003 decision denying service connection for a bilateral knee disability, evidence relating to an unestablished fact necessary to substantiate the claim and which is neither cumulative nor redundant of the evidence of record at the time of the last prior denial of the claim has not been received. CONCLUSIONS OF LAW 1. The March 2003 RO decision denying service connection for a bilateral knee disability is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.302, 20.1103 (2017). 2. The criteria to reopen the claim for service connection for a bilateral knee disability, based on new and material evidence have not been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION As a preliminary matter, the Board has reviewed the claim file and finds that there exist no deficiencies in VA's duties to notify and assist that would be prejudicial and require corrective action prior to a final Board determination. See 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. § 3.159 (2016); see also Bryant v. Shinseki, 23 Vet. App. 488 (2010) (regarding the duties of a hearing officer); Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (corrective action to cure a 38 C.F.R. § 3.159(b) notice deficiency); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004) (timing of notification). The Board also notes that, to the full extent possible, VA complied with all prior remand instruction requests, and there exist no deficiencies in VA's duties to notify and assist in that regard. See Stegall v. West, 11 Vet. App. 268 (1998) (a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order); but see D'Aries v. Peake, 22 Vet. App. 97, 104 (2008) (it is only substantial compliance, rather than strict compliance, with the terms of a remand that is required). Generally, a claim which has been denied may not thereafter be reopened and allowed based on the same record. 38 U.S.C. §§ 7104, 7105. However, pursuant to 38 U.S.C. § 5108, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the VA 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 is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). 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. Id. In determining whether evidence is "new and material," the credibility of the new evidence must be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); Justus v. Principi, 3 Vet. App. 510, 513 (1992). In deciding whether new and material evidence has been submitted, the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). If the Board determines that the evidence submitted is both new and material, it must reopen the case and evaluate the claim in light of all the evidence. Justus, 3 Vet. App. at 512. 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). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly received 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, either by triggering the VA Secretary's duty to assist or through consideration of an alternative theory of entitlement. Shade, 24 Vet. App. at 118. The Board must independently consider the question of whether new and material evidence has been received because it goes to the Board's jurisdiction to reach the underlying claims and adjudicate the claims de novo. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380, 1384 (Fed. Cir. 1996). If the Board determines that the evidence submitted is both new and material, it must reopen the case and evaluate the claim in light of all the evidence. Justus, 3 Vet. App. at 512. Such evidence is presumed to be credible for the purpose of determining whether the case should be reopened; once the case is reopened, the presumption as to the credibility no longer applies. Id. at 513. The Veteran filed a claim for service connection for bilateral knee disability in June 2002. In a March 2003 rating decision, the RO denied the Veteran's claim for a bilateral knee disability on the basis that there was no evidence showing the knee disability was incurred in or aggravated by active service or active duty for training. The Veteran filed a notice of disagreement (NOD) in October 2003 and the RO issued a statement of the case (SOC) in June 2005. However, the Veteran did not submit a substantive appeal, VA Form 9. Therefore, the decision became final. 38 C.F.R. § 20.302. The Veteran submitted a request to reopen her claim for entitlement to service connection for a bilateral knee disability in May 2009. In a December 2009 rating decision, the RO denied the Veteran's request to reopen for a bilateral knee disability. The Veteran did not file a NOD or new evidence within one year of notification of the decision. Therefore, the decision became final. 38 C.F.R. § 20.302. The appeal currently before the Board comes from an April 2011 request from the Veteran to reopen her claim for entitlement to service connection for a bilateral knee disability. The RO denied reopening the claim in a June 2012 rating decision. The Veteran's claim file is negative for new and material evidence regarding the Veteran's claim for a bilateral knee disability since the final March 2003 rating decision. As the claim was initially denied due to the lack of evidence showing a positive nexus between the Veteran's bilateral knee disability and military service, any new evidence must reasonably be able to substantiate the claim. The new medical evidence of record is negative for any evidence of a positive nexus between the Veteran's knee disability and military service. The Board notes the Veteran submitted a statement in September 2011 in which she contends the knee disability was caused by physical training and readiness during her National Guard service. However, this evidence is not new. The Veteran was afforded a VA orthopedic examination for her knees in February 2003, and the Veteran's contentions of National Guard service causing her knee disability were documented in the "Medical History" section of the examination. The new evidence of record was not before the RO during the first denial in March 2003, but is redundant of the evidence then of record. It does not raise a reasonable possibility of substantiating the Veteran's claim. Accordingly, the Board finds that new and material evidence has not been added to the record and the claim must not be reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. ORDER New and material evidence has not been received, the claim for service connection for a bilateral knee disability is not reopened; the appeal is denied. REMAND In November 2009, VA made a formal determination that the Veteran's complete service records were unavailable from July 1980 to May 2001, and listed the efforts to secure them. The Board notes that the in August 2002 and December 2002, the RO was able to obtain STRs from the Veteran's National Guard service from April 1993 to August 1998. In May 2009 the Veteran submitted additional STRs from the same time period. To the extent there remain STRs that are unavailable, to include the Veteran's active duty service from January 1985 to April 1989, VA has a heightened duty to explain its findings and conclusions and to consider carefully the benefit of the doubt rule. Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The cited caselaw does not lower the legal standard for proving a claim of service connection but rather increases the Board's obligation to evaluate and discuss in its decision all the evidence that may be favorable to the Veteran. Russo v. Brown, 9 Vet. App. 46 (1996). Moreover, in regards to the issues of service connection for hypertension and PTSD, the record reflects that the Veteran has not been given a VA examination to determine the nature and etiology of these claimed conditions. According to McClendon, an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or that a disease, manifested in accordance with presumptive service connection regulations, occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. McClendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, the Veteran has two present disabilities and there is insufficient evidence to decide the case. The Veteran has current diagnosis for hypertension, and the Veteran's available STRs note high blood pressure. The Veteran also has current diagnoses for depression and anxiety. The Veteran reports military sexual trauma as the cause of her PTSD claim. Thus, a VA examination should be obtained to determine the nature and etiology of these disabilities. The Veteran was afforded a VA orthopedic examination in May 2012 for her bilateral hand disability. The VA examiner stated the Veteran did not currently, and had never had a bilateral hand disability. In the Remarks section, the examiner opined the Veteran's active service as a stenographer did would not solely be the cause of "present bilateral hand condition, and that arthritic changes are a natural process of long term joint use. The Board finds this examination inadequate. The examiner made conflicting findings in the examination as to whether the Veteran had a diagnosis for arthritis or not. Since the examiner noted that no disability was found, the examiner needed to address the Veteran's medical history of arthralgia of the hands, the cause of degenerative changes noted in February 2012, and the tingling of the hands in the STRs. The opinion did not address pertinent factual evidence of record, and is therefore inadequate. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Accordingly, the case is REMANDED for the following action: 1. Obtain any outstanding VA treatment records, and afford the Veteran the opportunity to submit or identify any additional relevant treatment records. Obtain any identified records with the use of the Veteran's authorization as necessary. If such records are unavailable, the file must be clearly documented to the effect that the Veteran was notified in accordance with 38 C.F.R. § 3.159(e). 2. Then schedule the Veteran for VA cardiovascular examination with a qualified medical professional regarding the nature and etiology of the Veteran's hypertension. Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any current hypertension was incurred in or aggravated by active duty service to include federalized active duty for training (ACDUTRA) with the National Guard. The claim file should be made available to the examiner for review and the examiner should state in the examination report that the claims file has been reviewed. All opinions are to be accompanied by a rationale consistent with the evidence of record. A discussion of the pertinent evidence, relevant medical treatises, and generally accepted medical principles is requested. If the examiner cannot provide an opinion without resorting to speculation, he or she shall provide complete explanations stating why this is so. In so doing, the examiner shall explain whether any inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 3. Schedule the Veteran for a VA psychiatric examination to determine the nature and etiology of any diagnosed psychiatric disorder, to include PTSD. Provide an opinion as to whether it is at least as likely as not (probability of 50 percent or greater) that the Veteran's psychiatric disability, to include, PTSD is related to the Veteran's service, to include the claimed in-service sexual assault. The claim file should be made available to the examiner for review and the examiner should state in the examination report that the claim file has been reviewed. All opinions are to be accompanied by a rationale consistent with the evidence of record. A discussion of the pertinent evidence, relevant medical treatises, and generally accepted medical principles is requested. If the examiner cannot provide an opinion without resorting to speculation, he or she shall provide complete explanations stating why this is so. In so doing, the examiner shall explain whether any inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 4. Schedule the Veteran for a VA orthopedic examination to determine the nature and etiology of any diagnosed hand disability. Provide an opinion as to whether it is at least as likely as not (probability of 50 percent or greater) that the Veteran's bilateral hand disability is related to the Veteran's active service. If no bilateral hand disability is found, the examiner must address contrary evidence in the rationale. The claims file should be made available to the examiner for review and the examiner should state in the examination report that the claims file has been reviewed. All opinions are to be accompanied by a rationale consistent with the evidence of record. A discussion of the pertinent evidence, relevant medical treatises, and generally accepted medical principles is requested. If the examiner cannot provide an opinion without resorting to speculation, he or she shall provide complete explanations stating why this is so. In so doing, the examiner shall explain whether any inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 5. After completing the requested actions, and any additional action deemed warranted, readjudicate the claims on appeal. If the benefits sought on appeal remain denied, provide a supplemental statement of the case to the Veteran and her representative, and afford her an opportunity to respond. Then, return the case to the Board, if in order. The Veteran has the right to submit additional evidence and arguments on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded expeditious treatment. The law requires that all matters that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ E. I. Velez Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs