Citation Nr: 1808031 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 13-28 454 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for a head injury. 2. Whether new and material evidence has been received to reopen a claim for a right knee disability (claimed as right knee patellofemoral pain syndrome and an ACL tear). 3. Entitlement to service connection for a right knee disability (claimed as right knee patellofemoral pain syndrome and an ACL tear). 4. Whether new and material evidence has been received to reopen a claim for an acquired psychiatric disorder. 5. Entitlement to service connection for an acquired psychiatric disorder, to include anxiety disorder, NOS, schizophrenia form disorder, schizophrenia, undifferentiated subtype, depressive disorder, psychosis, body dysmorphic disorder, and PTSD. REPRESENTATION Veteran represented by: Jan Dils Attorney at Law WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD R. I. Sims, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1990 to October 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. A December 2011 rating decision denied a request to reopen a claim for a right knee disability (claimed as a right knee ACL tear; previously claimed as right knee patellofemoral pain syndrome). Additionally, a July 2013 rating decision granted a request to reopen a December 2009 prior denial of reopening for service connection for anxiety, NOS, and then denied the claim on the merits. The Board notes that the claim for service connection for an acquired psychiatric disability was originally raised as claims for service connection for anxiety disorder, NOS and PTSD; however, the record indicates that the Veteran has been variously diagnosed and treated for anxiety disorder, NOS, depressive disorder, schizophrenia, undifferentiated subtype, psychosis, schizophrenia form disorder, and body dysmorphic disorder. In Clemons v. Shinseki, 23 Vet. App. 1 (2009), the United States Court of Appeals for Veterans Claims (Court) held that the scope of a mental health disability claim includes any mental disorder that may be reasonably encompassed by the claimant's description of the claim, reported symptoms, and other information of record. Hence, the Board has recharacterized the Veteran's claim as one claim of service connection for an acquired psychiatric disorder, to include anxiety disorder, NOS, schizophrenia form disorder, schizophrenia, undifferentiated subtype, depressive disorder, psychosis, body dysmorphic disorder, and PTSD, to encompass the Veteran's various psychiatric diagnoses. The issue of entitlement to an acquired psychiatric disability is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. On February 27, 2017, the Veteran withdrew the issue of entitlement to service connection for a head injury. 2. A December 2009 rating decision denied service connection for a right knee disability. This rating decision also denied service connection for PTSD and a request for reopening a denial of service connection for anxiety, NOS. The Veteran was informed of the decision, including his right to appeal, but did not appeal or submit new evidence within a year of the decision. 3. Evidence submitted since the December 2009 rating decision includes evidence that relates to an unestablished fact necessary to substantiate the claim, is neither cumulative nor redundant of evidence already of record, a and raises a reasonable possibility of substantiating the claim for a right knee disability and an acquired psychiatric disability. 3. The weight of the evidence supports a finding that the Veteran's right knee disability (claimed as right knee patellofemoral pain syndrome and an ACL tear) began during his military service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal by the Veteran for the issue of entitlement to service connection for a head injury have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 2. The December 2009 rating decision denying service connection for a right knee disability and denying reopening of a previous denial of service connection for PTSD and a request for reopening a denial of service connection for anxiety, NOS is final. 38 U.S.C. § 7105 (2006); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2009). 3. New and material evidence has been received to reopen claims for service connection for a right knee disability and for an acquired psychiatric disorder. 38 U.S.C. §§ 5103, 5103A, 5107, 5108, 7105 (2012); 38 C.F.R. § 3.156(a), 3.159 (2017). 4. Criteria for service connection for a right knee disability have been met. 38 U.S.C. §§ 1101, 1110, 5107 (2012); 38 C.F.R. § 3.303, 3.304 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Withdrawal The Board may dismiss any appeal which fails to allege specific error of fact or law in the decision being appealed. 38 U.S.C.A. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. In this case, the Veteran appeared at his February 27, 2017 video conference hearing before the undersigned Veterans Law Judge and withdrew the issue of entitlement to service connection for a head injury on the record. As such, there remains no allegation of error of fact or law for appellate consideration with respect to the claims herein on appeal. Thus, the Board does not have jurisdiction to review the claim, and it is dismissed. II. New and Material Evidence Generally, a claim that has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed 38 U.S.C. §§ 7104(b) , 7105(c). An exception to the general rule allows for reopening where new and material evidence exists. 38 U.S.C.A. § 5108; Shade v. Shinseki, 24 Vet. App. 110 (2010). New evidence is defined as 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. 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 evidence is new and material, the credibility of the evidence is to be presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Right Knee Disability In September 2008, the Veteran filed a claimed for a right knee disability. A December 2009 rating decision denied service connection for a right knee disability (claimed as right knee patellofemoral pain syndrome), finding that the disability neither occurred in or was caused by service. The Veteran was notified of the decision, but neither filed a notice of disagreement, nor submitted any new and material evidence within the one year appeal period, and that decision became final. In December 2011, the Veteran submitted a written statement indicating disagreement with the denial of service connection. Additionally, in April 2011, the Veteran filed a claim for a right knee disability (claimed as a torn ACL). This correspondence was treated as a request to reopen the September 2008 claim for a right knee disability. A December 2011 rating decision denied the request to reopen a claim for a right knee disability. The evidence of record at the time of the December 2009 rating decision included a VA examination, service and VA treatment records, and a written statement from the Veteran. Pertinent evidence received since the December 2009 rating decision includes written statements from the Veteran, VA treatment records, a private medical opinion, buddy statements, hearing testimony, and a VA medical opinion. The Board finds that the evidence submitted since the December 2009 rating decision is new as it had not been previously considered. This evidence is also material as it relates to the basis of the prior final denial. Specifically, the September 2012 private orthopedist opinion addresses an unestablished fact and indicates the likelihood of substantiating the Veteran's claim. Accordingly, the previously denied claim of entitlement to service connection for a right knee disability is reopened. An Acquired Psychiatric Disorder A December 2009 rating decision denied service connection for PTSD and denied a request for reopening a claim for service connection for anxiety, not otherwise specified. As previously stated these claims have been recharacterized as an acquired psychiatric disorder, to include anxiety disorder, NOS, schizophrenia form disorder, schizophrenia, undifferentiated subtype, depressive disorder, psychosis, body dysmorphic disorder, and PTSD. The Veteran was notified of the decision, but neither filed a notice of disagreement, nor submitted any new and material evidence within the one year appeal period, and that decision became final. In February 2011, the Veteran submitted a written statement indicating his disagreement with the previous denial of service connection and requesting that his claim be reopened. Additionally, in July 2012, the Veteran through his representative, submitted correspondence indicating a desire to reopen his claim for service connection for anxiety disorder, NOS. This correspondence was treated as a request for reopening the December 2009 denial. A July 2013 rating decision granted a request to reopen a December 2009 prior denial of reopening for service connection for anxiety, NOS, and then denied the claim on the merits. The evidence of record at the time of the December 2009 rating decision included VA examinations, service and VA treatment records, and a written statement from the Veteran. Pertinent evidence received since the December 2009 rating decision includes written statements from the Veteran, private treatment records, a private medical opinion, buddy statements, and hearing testimony. The Board finds that the evidence submitted since the December 2009 rating decision is new as it had not been previously considered. This evidence is also material as it relates to the basis of the prior final denial, the existence of a causal relationship between an in-service injury and a current service-connected disability, elements previously determined to have insufficient supporting evidence. Specifically, a private medical opinion dated November 2013 addresses an unestablished fact and indicates the likelihood of substantiating the Veteran's claim. Accordingly, the previously denied claim for service connection for an acquired psychiatric disability is reopened. III. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110. Service connection can be established by evidence that shows "(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." 38 C.F.R. § 3.310(a) (2016); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection can also be established on a secondary basis for a disability that is proximately due to, or the result of, a service-connected disease or injury. 38 C.F.R. § 3.310(a). Right Knee Disability The Veteran's asserts that an in-service fall lead to his current right knee condition. In this case, the Veteran's service and VA medical records establish an in-service injury and a current disability. The remaining issue is whether a nexus exist between the Veteran's in-service injury and current right knee disability. In 1992, while on active duty, the Veteran injured his right knee. Service treatment records indicate that the Veteran was diagnosed with a first degree MCL strain. He was prescribed ice, rest, Motrin, and light duty. Several years later, in 2008, the Veteran again sought treatment for his right knee. He was diagnosed with right knee arthralgia, and was prescribed a knee brace. In 2009, the Veteran was afforded a VA examination and was diagnosed with right knee patellofemoral pain syndrome. The examiner opined that the right knee patellofemoral pain syndrome was less likely than not a continuation of the first degree MCL strain shown in 1992, noting that the two conditions were different. In 2011, the Veteran underwent a right knee arthroscopy. He was diagnosed with a tear of the entire medial meniscus, and the meniscus was excised. In September 2012, the Veteran submitted an independent orthopedist opinion. Dr. Dauphin found that the Veteran's current right knee disability was a result of military service. Dr. Dauphin also noted his belief that the Veteran had a continuity of care since the time he was separated from service, and therefore, it was as likely as not, that the current symptoms in the knee are a direct result of military service and that the meniscal tear is a result of 1992 in-service injury. The Veteran has also submitted three lay statements indicating that the Veteran experienced no knee problems or injury prior to service, and since his separation from service the Veteran experienced continued pain and an inability to stand for long periods of time. The Veteran testified in May 2013 that he did not have any other injuries to his right knee between 1994, when he separated from service, and 2011, when he had knee surgery. Based on a review of the Veteran's treatment records and medical testing, a December 2017 expert medical opinion by an orthopedic surgeon found it is at least as likely as not that the Veteran's current right knee disability either began during, or was otherwise caused by, his military service injury (diagnosed as an MCL strain). In support of this opinion, the examiner noted the Veteran's history of knee pain, his experiences with his knee "pooping out," and his right knee arthroscopy with findings of medial meniscus tear and medial meniscectomy. He explained that the medial meniscus and MCL are in very close proximity and explained that both injuries can occur concurrently or can fairly easily be misdiagnosed. The examiner also noted arthritic changes in the knee are common after a meniscectomy. The examiner found that the Veteran's above history is consistent with a probable medial meniscus tear occurring with the original injury that progressed over time. The Board finds the December 2017 VA medical opinion highly probative and affords it great weight. This opinion was offered based on a review of the Veteran's medical records, and considerations of the Veteran's assertions and buddy statements of record. Additionally, this opinion takes into consideration the 2009 VA medical opinion and the 2012 private medical opinion, which provided different conclusions about the etiology of the Veteran's right knee disability. The December 2017 VA examiner provides specific reasons and bases for his conclusion and supports his findings with the evidence of record as well as medical principles. The Board finds the December 2017 medical opinion forms the necessary connection between the Veteran's in-service injury and current right knee disability. Based on the medical and lay evidence of record, the Board finds that service connection for the Veteran's right knee disability is warranted. Accordingly, service connection for a right knee disability (claimed as right knee patellofemoral pain syndrome and an ACL tear) is granted. ORDER The claim of service connection for a head injury is dismissed. The previously denied claims for service connection for an anxiety disorder and PTSD are reopened. The previously denied claim for a right knee disability is reopened. Service connection for a right knee disability is granted. REMAND This case presents a challenging and complex psychiatric history. The Veteran is seeking service connection for an acquired psychiatric disability. During the course of his appeal, he has been diagnosed with several psychiatric disabilities including an anxiety disorder, schizophrenia form disorder, and body dysmorphic disorder (BDD). The general consensus seems to be that the Veteran does not have PTSD, although he has presented some symptomatology of such. The Veteran served in the Navy from 1990 to 1994. During service he did not voice any psychiatric complaints. The Veteran did report experiencing one stressful event when he had to help retrieve dead bodies from a helicopter crash. The Veteran noted that there were sharks in the water and he commented that he felt bad because the deceased service member they retrieved had a wedding band on and he worried for the man's family. The occurrence of this event has been corroborated. However, the Veteran did not have any psychiatric complaints in service and he reported declining to talk to the ship's chaplain following the body retrieval. During service the Veteran also developed some pigmentation problems around his eyes. The change has been difficult to detect per several examiner's statements and from color photographs in the claims file, but is reportedly obvious to the Veteran himself. However, this Veteran is service connected for the condition. Following service, the Veteran was not found to have any psychiatric problems for a number of years, there is some indication that he was hospitalized in the early 2000s, and he has been hospitalized more recently and diagnosed with schizophrenia. The Veteran has also been suspected of over-reporting symptomatology for financial gain (see July 2012 VA examination report) although it could not be determined at that time, and the Veteran is also noted to have reported witnessing a man being eaten alive by sharks, although it appears fairly clear that they rescued a dead body. Multiple VA examiners have unanimously concluded that it was less likely than not that the Veteran's anxiety disorder was the result of his military service. In an October 2013opinion, Dr. Atkinson, a psychologist, asserted that the Veteran had BDD and took great issue with the VA examiner's opinions that he did not. However, from a review of the DSM-5 criteria, it is not clear whether such a diagnosis is warranted. The Board lacks the ability to make this diagnosis, thereby necessitating a remand. Dr. Atkinson also suggested that the Veteran had schizophrenia form disorder by history to include low level residual continuing into the present secondary to the service connected event of seeing a man die. However, this diagnosis also appears to be flawed as the Veteran did not actually witness a man die; rather, he helped retrieve a dead body. Moreover, it is not clear how if this event was so significant that it took nearly a decade for schizophrenia to manifest. As such, this too should be addressed. Accordingly, the case is REMANDED for the following action: 1. Obtain a medical opinion regarding the Veteran's acquired psychiatric disability. If an opinion cannot be provided without an examination, one should be provided. The examiner should indicate whether the Veteran meets the DSM-5 criteria for body dysmorphic disorder. Why or why not? If so, the examiner should indicate whether it is at least as likely as not (50 percent or greater) that it is the result of the Veteran's service connected skin disorder. In so doing, the examiner should address the October 2013 opinion of Dr. Atkinson (in VBMS as "Medical treatment record Non-government facility" and dated December 13, 2013). The examiner should also address whether the Veteran has schizophrenia, and if so whether it is at least as likely as not (50 percent or greater) that schizophrenia either began during or was otherwise caused by his military service. In so doing the examiner should address the relevance, if any, of the multi-year break between service and the onset of psychiatric symptomatology. The examiner should also review the more recent private treatment records diagnosing the Veteran with schizophrenia (in VBMS as "Correspondence" dated February 9, 2017). 2. Then readjudicate the appeal. If the claims remain denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate time for response. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims 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). ____________________________________________ MATTHEW W. BLACKWELDER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs