Citation Nr: 19174167 Decision Date: 09/24/19 Archive Date: 09/24/19 DOCKET NO. 16-46 348 DATE: September 24, 2019 ORDER Whether new and material evidence has been received to reopen the claim of entitlement to service connection for residuals of a left quadricep contusion is granted. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is granted. REMANDED Entitlement to service connection for sciatic neuropathy of the left lower extremity is remanded. Entitlement to service connection for a left leg disability, claimed as pain and poor blood circulation, is remanded. Entitlement to service connection for a right leg disability, claimed as pain and poor blood circulation, is remanded. Entitlement to service connection for residuals of a left quadricep contusion is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is remanded. FINDINGS OF FACT 1. In a January 1991 rating decision, confirmed in July 1991, the Veteran was denied entitlement to service connection for residuals of left quadricep disability. The basis for the denials was a lack of current disability and/or chronic disability. The Veteran was informed of the decision and did not appeal nor was new and material evidence received within a year of the decision. 2. The Veteran has since been variously diagnosed with radiculopathy, which he claims is the result of the confirmed quadricep contusion and also reports pain raising a question of whether such complaints reached a level of a functional impairment of earning capacity pursuant to Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). This evidence is relevant and probative, and it cures a prior evidentiary defect; namely, the lack of current disability. 3. In a February 1993 rating decision, the Veteran was denied entitlement to service connection for psychiatric or personality disorder on the basis that there was no evidence of the condition in service or immediately following discharge. In an April 2003 rating decision, the Veteran was denied entitlement to service connection for PTSD on the basis that there was no current diagnosis. The Veteran was informed of the decisions and did not appeal nor was new and material evidence received within a year of the decisions. 4. The Veteran has since been variously diagnosed with PTSD and depression, which he claims is the result of the confirmed injury from a truck axle falling on his leg, raising a question of whether such diagnoses are related to such event. This evidence is relevant and probative, and it cures a prior evidentiary defect; namely, the lack of in-service injury or event and current disability. CONCLUSIONS OF LAW 1. The July 1991, February 1993 and April 2003 rating decisions are final. 38 U.S.C. § 7105 (c) (2012); 38 C.F.R. §§ 20.302, 20.1103 (2018). 2. Evidence received since the July 1991, February 1993 and April 2003 rating decisions are new and material and the claims for service connection for residuals of a left quadricep contusion and an acquired psychiatric disorder, to include PTSD, are reopened. 38 U.S.C. §§ 5103A, 5107, 5108 (2012); 38 C.F.R. § 3.156 (a) (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran service on active duty from November 1987 to July 1990. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2013 decision. The Board has recharacterized the claim for PTSD as stated on the title page of this decision. Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Veteran did not perfect an appeal of the issues of service connection for left foot condition, peripheral neuropathy of the left lower extremity, and hypertension. See 38 C.F.R. § 20.302(b); see also VA Form 9 received in September 2016. The issue of recognition of LRD as the helpless child of the Veteran on the basis of permanent incapacity for self-support prior to attaining the age of 18 has been addressed in a separate decision. The Veteran waived initial RO review of the evidence added to the claim file since the August 2016 statement of the case (SOC) was issued. 38 C.F.R. § 20.1304(c). For the reasons outlined above, the request to reopen the claims for service connection for residuals of a left quadricep contusion and an acquired psychiatric disorder, to include PTSD, are reopened. REASONS FOR REMAND The Board cannot make a fully-informed decision on the issues of service connection for sciatic neuropathy of the left lower extremity, bilateral leg disability claimed as pain and poor blood circulation, residuals of a left quadricep contusion, and an acquired psychiatric disorder, to include PTSD. The Veteran has been incarcerated on multiple occasions since his discharge from service and as recently as August 2019. There are only limited private treatment records of the Veteran from the Federal and State Bureau of Prisons dated between 2007 and 2010. A remand is required to allow VA to obtain authorization and request these records. In light of the missing records, VA treatment records raising the question of the nature and etiology of the Veteran’s current disabilities, and recent caselaw requiring a determination as to whether reports of pain reached a level of a functional impairment of earning capacity, new examinations are necessary. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for all periods of incarceration with the Federal and State Bureau of Prisons since his discharge from service. Make two requests for these authorized records, unless it is clear after the first request that a second request would be futile. 2. Schedule the Veteran for examination by the appropriate clinicians to determine the nature and etiology of any sciatic neuropathy of the left lower extremity, bilateral leg disabilities, and residuals of left quadricep contusion. The examiner must consider the Veteran’s lay reports of observable symptomatology associated with each disability. The examiner must address the Veteran’s assertions that these disabilities were incurred because of a truck axle falling on his leg during service and/or secondary to his service-connected lumbar spine disability. After a thorough review of the medical and lay evidence of record, the examiner(s) should opine as to the following: (a.) Identify all diagnoses pertaining to the Veteran’s bilateral lower extremities, claimed as sciatic neuropathy of the left lower extremity, bilateral leg disabilities with pain and poor circulation, and residuals of a left quadricep contusion. Note: pain in of itself may constitute a disability for VA purposes if it results in functional impairment. (b.) For each diagnosis, is it at least as likely as not (i.e. a probability of 50 percent or more) that the Veteran’s disability had its onset during active service, within one year of separation from service, or, otherwise resulted from active military service or is proximately due to, the result of, or aggravated by (beyond the natural progression) the service-connected lumbar spine disability? (c.) The examiner(s) must also state whether any such lower extremity disability is a separately diagnosed disability from the service-connected lumbar spine disability or a symptom thereof already considered in the applicable rating criteria for disorders of the spine. The examiners should provide a complete rationale for all opinions provided. If an opinion cannot be provided without resorting to mere speculation, the examiners should identify all medical and lay evidence considered in this conclusion, fully explain why this is the case and identify what additional evidence (if any) would allow for a more definitive opinion. 3. Schedule the Veteran for a psychiatric examination to determine the nature and etiology of any acquired psychiatric disorder, to include PTSD. If the Veteran is diagnosed with PTSD, the examiner must explain how the diagnostic criteria are met and opine whether it is at least as likely as not related to the injury in-service whereby a truck axle fell on his leg. If any other acquired psychiatric disorders are diagnosed, the examiner must opine whether each diagnosed disorder is at least as likely as not related to an in-service injury, event, or disease, to include the injury in-service whereby a truck axle fell on his leg. 4. Thereafter, the matters must be readjudicated in light of all the evidence of record, to include evidence associated with the record since the August 2016 SOC was issued. If upon completion of the above action the issues remain denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. L. Wallin, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.