Citation Nr: 20021215 Decision Date: 03/25/20 Archive Date: 03/25/20 DOCKET NO. 19-13 990 DATE: March 25, 2020 ORDER New and material evidence having been received, the previously denied claim of entitlement to service connection for posttraumatic stress disorder (PTSD) is reopened. New and material evidence having been received, the previously denied claim of entitlement to service connection for right knee arthralgia (claimed as knee disability/arthritis) is reopened. New and material evidence having been received, the previously denied claim of entitlement to service connection for right hip strain (claimed as right hip disorder) is reopened. New and material evidence having been received, the previously denied claim of entitlement to service connection for left knee arthralgia (claimed as knee disability/arthritis) is reopened. New and material evidence having been received, the previously denied claim of entitlement to service connection for bilateral refractive error and presbyopia (originally claimed as right eye injury and later residuals of cornea abrasion, right eye now) is reopened. Service connection for posttraumatic stress disorder (PTSD) is granted. REMANDED Service connection for left knee arthralgia (claimed as knee disability/arthritis) is remanded. Service connection for right knee arthralgia (claimed as knee disability/arthritis) is remanded. Service connection for right hip strain (claimed as right hip disorder) is remanded. Service connection for bilateral refractive error and presbyopia (originally claimed as right eye injury and later residuals of cornea abrasion, right eye) is remanded. Entitlement to a temporary 100 percent evaluation because of hospital treatment for PTSD in excess of 21 days and convalescence is remanded. FINDINGS OF FACT 1. The RO denied the Veteran’s claims for service connection for PTSD, a right knee condition, a left knee condition, a right hip condition, and a bilateral eye condition in a January 2012 rating decision. The Veteran did not submit any new evidence or appeal the determination within one year. 2. Evidence associated with the file subsequently relates to unestablished facts related to his PTSD, right knee, left knee, right hip, and eye conditions and raise a reasonable possibility of substantiating the related claims. 3. The Veteran’s PTSD is related to a verified in-service stressor. CONCLUSIONS OF LAW 1. The criteria reopen the previously denied claim of entitlement to service connection for posttraumatic stress disorder (PTSD) have been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103. 2. The criteria to reopen the previously denied claim of entitlement to service connection for left knee arthralgia (claimed as knee disability/arthritis) have not been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103. 3. The criteria to reopen the previously denied claim of entitlement to service connection for right knee arthralgia (claimed as knee disability/arthritis) have been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103. 4. The criteria to reopen the previously denied claim of entitlement to service connection for right hip strain (claimed as right hip disorder) have been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103. 5. The criteria to reopen the previously denied claim of entitlement to service connection for bilateral refractive error and presbyopia (originally claimed as right eye injury and later residuals of cornea abrasion, right eye) have been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103. 6. The criteria for service connection for posttraumatic stress disorder (PTSD) have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active duty service in the United States Marine Corps from August 1979 through March 1985. The matters on appeal come to the Board of Veterans’ Appeals (“Board”) from a January 2015 Rating Decision, which continued previous denials of the claims at hand. Prior rating decisions relevant to the conditions on appeal include the July 2010, July 2009, May 2007, and July 2005 Rating Decisions. The Veteran, with counsel, participated in a videoconference hearing before the Board before the undersigned Veteran’s Law Judge in February 2020. A transcript of the hearing has been associated with the record. Claims to Reopen A final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). Evidence is considered “new” if it was not previously submitted to agency decision makers; “material” evidence is 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.” 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 was received to reopen the previously denied claim of entitlement to service connection for posttraumatic stress disorder (PTSD); and 2. New and material evidence was received to reopen the previously denied claim of entitlement to service connection for right knee arthralgia (claimed as knee disability/arthritis); and 3. New and material evidence was received to reopen the previously denied claim of entitlement to service connection for right hip strain (claimed as right hip disorder). In this case, the Veteran was most recently denied service connection for PTSD, right knee arthralgia, and a right hip strain in a January 2012 rating decision. The RO notified the Veteran of this decision and of his right to appeal, but he did not initiate an appeal of the RO’s decision within one year. Nor was any new and material evidence received within a year. 38 C.F.R. § 3.156(b). As a result, the RO’s decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103. Accordingly, the claim may now be considered on the merits only if new and material evidence has been received since the time of the prior adjudication. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). New evidence associated with the file includes letters from private clinicians, C. T. MD (submitted in November 2018) and C. C., Psy. D. (submitted in August 2019), which confirm the current diagnoses of the claimed right hip, right knee, and PTSD and offer the opinion that such conditions are related to service. The new evidence is considered to have a reasonable possibility of substantiating the claims, and as such, reopening of the claims is warranted. 38 C.F.R. § 3.156(a). 4. New and material evidence was received to reopen the previously denied claim of entitlement to service connection for left knee arthralgia (claimed as knee disability/arthritis). In this case, the Veteran was denied service connection for a left knee condition in a January 2012 rating decision, which confirmed previous denials for lack of a medical nexus. The RO notified the Veteran of the January 2012 decision and of his right to appeal, but he did not initiate an appeal of the RO’s decision within one year. Nor was any new and material evidence received within a year. 38 C.F.R. § 3.156(b). As a result, the RO’s decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103. Accordingly, the claim may now be considered on the merits only if new and material evidence has been received since the time of the prior adjudication. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). New evidence associated with the file includes the Veteran’s testimony that his left knee twisted during a skiing accident during service. Review of the file does not show that this specific contention was previously considered. The new evidence is considered to have a reasonable possibility of substantiating the claim, and as such, reopening of the claim is warranted. 38 C.F.R. § 3.156(a). 5. New and material evidence was received to reopen the previously denied claim of entitlement to service connection for bilateral refractive error and presbyopia (originally claimed as right eye injury and later residuals of cornea abrasion, right eye) In this case, the Veteran was denied service connection for a bilateral eye condition in a January 2012 rating decision. The denial was on the basis that there were no corneal scars or residuals of in-service corneal abrasion shown on the VA examination in November 2010, and that the current conditions of bilateral refractive error and presbyopia were not related to the corneal abrasion suffered during service. The RO notified the Veteran of the January 2012 decision and of his right to appeal, but he did not initiate an appeal of the RO’s decision within one year. Nor was any new and material evidence received within a year. 38 C.F.R. § 3.156(b). As a result, the RO’s decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103. Accordingly, the claim may now be considered on the merits only if new and material evidence has been received since the time of the prior adjudication. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). New evidence associated with the file includes the Veteran’s April 2014 claim that he is seeking service connection for a left eye scar, as well as a March 2014 VA eye examination that notes a chorioretinal scar to the left eye and notes a history of ocular trauma to the left eye. Review of the file does not show that this specific contention or diagnosis was previously considered. The new evidence is considered to have a reasonable possibility of substantiating the claims, and as such, reopening of the claims is warranted. 38 C.F.R. § 3.156(a). Claims for Service Connection To establish direct service connection, there must be competent evidence showing: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the in-service injury incurred or aggravated during service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic diseases may be presumed to have been incurred in or aggravated by service if manifested to a compensable degree within one year of discharge from service. See 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service. 38 C.F.R. § 3.307(a). This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. § 1113; 38 C.F.R. §§ 3.307(d), 3.309(a). A showing of chronicity requires a combination of manifestations sufficient to identify a disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word “chronic.” 38 C.F.R. § 3.303(b). When a disease listed at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was shown in service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Id.; Savage v. Gober, 10 Vet. App. 488, 495-96 (1997); Walker v. Shinseki, 708 F.3d 1331, 1336, 1339 (Fed. Cir. 2013) (explaining that “shown as such in service” means “clearly diagnosed beyond legitimate question”). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker, 708 F.3d at 1338-39. Generally, a claimant has the responsibility to present and support a claim for benefits. All information, lay evidence and medical evidence in a case is to be considered by the Board in deciding the claim. When there is an approximate balance of positive and negative evidence regarding any material issue, the claimant is to be given the benefit of the doubt. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Lay evidence, if competent and credible, may serve to establish a nexus in certain circumstances. See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that lay evidence is not incompetent merely for lack of contemporaneous medical evidence). When considering whether lay evidence may be competent, the Board must determine, on a case by case basis, whether the Veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that “[w]hether lay evidence is competent and sufficient in a particular case is a factual issue.”). The Board has an obligation to provide reasons and bases supporting its decision, but there is no need to discuss, in detail, every piece of evidence of record. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Board’s analysis is to focus specifically on what the evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant). 6. Service connection for posttraumatic stress disorder (PTSD) is granted. The Veteran contends that he has PTSD resulting from an in-service sexual assault. Review of the service records confirms that the Veteran was sexually assaulted, and that the perpetrator was found guilty and imprisoned for such. His in-service stressor is confirmed. However, the record contains conflicting medical opinions with respect to the stressors underlying the Veteran’s PTSD diagnosis, or whether the Veteran has a PTSD diagnosis. The probative value of medical opinion is based on the expert’s personal examination of the patient, the physician’s knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. Further, the credibility and weight to be attached to these opinions are within the province of the adjudicator. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). As such, the Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). The denial of the claim below was based primarily on the opinion from a VA examiner who has conducted several VA examinations for this claim, including the initial 2006 VA examination where the Veteran did not specifically identify the sexual trauma during service as a cause for PTSD. In the most recent January 2015 VA examination conducted by this examiner, the examiner reiterated that the Veteran does not meet the diagnostic criteria for PTSD, and noted diagnoses of a personality disorder, a bipolar depression disorder. Her report noted the Veteran had symptoms of PTSD, such as such as (a) experiencing the traumatic event, (b) recurrent, involuntary, and intrusive distressing memories of the traumatic event, recurring distressing dreams of the traumatic event, (c) avoidance of external reminders, (d) persistent and exaggerated negative beliefs, and (e) hypervigilance. However, in her report, the VA examiner indicated the Veteran does not have a current diagnosis of PTSD caused or related to the sexual assault. The examiner rationalized that the Veteran had other mental health history that describes his clinical picture more accurately than a diagnosis of PTSD and noted she felt the Veteran was malingering, citing, among other reasons, his prior 2006 VA examination in which the Veteran did not cite the in-service sexual assault. Treatment records show a diagnosis of PTSD dating back to the early 2000s. A September 2005 VA psychiatry note indicated the Veteran was seeking service connection for bipolar disorder, and that he reported after the in-service sexual assault he showed psychiatric symptoms (he described such as a manic episode) and was referred to a chaplain for a “immature personality.” PTSD symptoms due to childhood and civilian traumas was noted. Thereafter, the PTSD diagnosis continued to be reflected in treatment notes. An April 2015 VA psychology note indicated the Veteran had bipolar disorder in full remission, as well as PTSD, and the Veteran was noted to have had childhood abuse, with exacerbation of problems due to military sexual trauma. The Veteran, on appeal, submitted an August 2019 private evaluation from C. C., Psy. D. The clinician noted review of the claims folder, having performed a clinical evaluation, having performed psychological testing, and having reviewed relevant research. The clinician confirmed a diagnosis of PTSD related to military sexual trauma under DSM-5 criteria. The clinician also noted bipolar disorder and a personality disorder but offered the opinion that they were unrelated to service. The Veteran was noted to have completed a residential treatment program for PTSD at the end of 2010 to 2011. The clinician listed the Veteran’s symptoms related to each condition and noted having completed the MMPI-2 and MENT tests, both of which returned consistent results. After a careful review, the August 2019 private evaluation in favor of the claim is afforded the most weight here. In reaching this conclusion, the evidence of record was carefully reviewed, and the arguments raised in the May 2019 VA Form 9 and by counsel during the hearing as to the deficiencies in the VA examination were considered. Significant weight is not assigned to the VA examination due to apparent bias and inadequate review. The initial 2006 VA examination (which does not discuss military sexual trauma) did not involve a complete file review, and every subsequent VA examination appears to have been predicated on this faulty review. If there had been a full review, the military sexual trauma reported by the Veteran in a September 2005 VA treatment note would have been identified and discussed in the report. Reliance on this faulty foundation appears to have continued in the subsequent VA examinations, all completed by the same examiner, who does not appear to have revisited the foundation of the initial impression. In the 2015 VA examination, the examiner specifically notes, again, that the Veteran did not report the trauma in the 2006 VA examination, apparently downplaying the significance of the claimed trauma. Although the VA examiner’s conclusion that the many of the Veteran’s psychiatric problems may have other primary etiologies may have some validity, the rationale for discounting and disregarding a significant in-service traumatic event as being non-causal is not strong. The event was not merely, as described by the VA examiner, “one incident (sodomy while intoxicated/drugged).” By the Veteran’s credible account, this incident involved court proceedings and significant subsequent shame and difficulties, including mockery among his military peers. Even though the Veteran appears to have also had significant childhood and post-service trauma, the VA examiner appears to have unduly discounted the significance of this in-service event and did not persuasively explain how the military trauma caused no additional damage. Conversely, the findings in the private evaluation are generally consonant with review of the treatment record and reflects credible and consistent statements by the Veteran. Those symptoms reported at the time of August 2019 private clinician’s report associated with his PTSD appear reasonable and credible. As the Veteran’s private examiner provided sufficient rationale and support for the conclusions she reached, her opinion is more fully probative. In view of the foregoing, the Board finds that the probative evidence of record is at least in equipoise regarding the Veteran’s claim for service connection for PTSD. The Board acknowledges the negative VA opinion of record. However, when the VA determines the evidence supports the claim or is in relative equipoise, the Veteran’s claim must prevail. 38 U.S.C. § 5107. Accordingly, entitlement to service connection for PTSD is granted. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.304. REASONS FOR REMAND 1. Service connection for right knee arthralgia (claimed as knee disability/arthritis) is remanded; and 2. Service connection for right hip strain (claimed as right hip disorder) is remanded; and 3. Service connection for left knee arthralgia (claimed as knee disability/arthritis) is remanded. The Veteran seeks service connection for right knee, right hip, and left knee conditions. He contends that these injuries are related to an in-service skiing accident where he hit a tree, fell off the side of a mountain, and suffered twisting and other traumatic injuries. Evidence of record confirms that the Veteran likely has current right knee, right hip, and left knee disabilities. Review of the record also confirms the reported in-service skiing accident and related surgery on the right ankle. On appeal, the Veteran submitted a letter from a private clinician which, inter alia, confirmed diagnoses of medial collateral ligament sprain, right knee, anterior cruciate ligament sprain, right knee, osteoarthritis of the right hip and right knee, postural abnormality, gait abnormality. See February 2018 letter from C.T., MD (submitted November 2018). The clinician opined that these conditions were related to the claimed in-service incurrence. The current evidence of record, alone, is an insufficient basis to grant the benefit sought. Although there is some evidence of chronic knee pain, there is no medical evidence of bilateral knee injuries or hip injuries during service. As the Veteran has not completed a VA examination for these conditions, these claims are remanded for VA examinations and nexus opinions that address theories of direct and secondary service connection. 4. Service connection for bilateral refractive error and presbyopia (originally claimed as right eye injury and later residuals of cornea abrasion, right eye) is remanded. The Veteran seeks service connection for residuals of a corneal abrasion. In his claim to reopen, he specified that he was seeking service connection for residuals of a corneal abrasion to the left eye (not the right, as previously claimed). The November 2010 VA examination did not find any residuals of a corneal abrasion. However, a March 2014 VA eye examination noted a chorioretinal scar to the left eye and noted a history of ocular trauma to the left eye. Reopening of the claim was accordingly warranted. The claim and the evidence of record is ambiguous. The Veteran should be asked specifically to detail all eye injuries during a VA examination that addresses the nature and etiology of any claimed eye disability. The examination should clearly state the Veteran’s responses as to which eye was injured during service, and whether he has suffered multiple corneal abrasions. 5. Entitlement to a temporary 100 percent evaluation because of hospital treatment for PTSD in excess of 21 days and convalescence is remanded. The Veteran seeks a temporary 100 percent evaluation for treatment for PTSD. Service connection for PTSD has been granted on appeal. It appears that the period of hospitalization sought is from 2010, which predates the request to reopen the claim of entitlement to service connection for PTSD. As service connection has been granted, but an effective date of service connection has not yet been assigned, adjudication of this intertwined appeal must be deferred pending assignment of an effective date for service connection for PTSD by the Agency of Original Jurisdiction. As the matter is being remanded and the pleadings are unclear, on remand, the Veteran should be asked to clearly specify all dates he was hospitalized for PTSD. The claims are REMANDED for the following action: 1. Schedule the Veteran for examination by an appropriate examiner to determine the nature and etiology of any bilateral knee, and right hip disabilities. The examiner must opine whether any condition confirmed on examination (a) is at least as likely as not related to an in-service injury, event, or disease, including the claimed skiing injury, (b) whether it at least as likely as not (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service, or (c) it is at least as likely as not (1) proximately due to service-connected disability, or (2) aggravated beyond its natural progression by service-connected disabilities, including pes planus, right ankle fracture, and left shin splints. 2. Schedule the Veteran for examination by an appropriate examiner to determine the nature and etiology of any eye disability. The examiner should clearly record the Veteran’s description of all eye injuries, and must opine whether any condition confirmed on examination is at least as likely as not related to an in-service injury, event, or disease. 3. After assignment of an effective date for the grant of service connection for PTSD, request clarification from the Veteran as to all dates of hospitalization for which he seeks increased compensation, and readjudicate the Veteran’s claim for a temporary 100 percent evaluation for hospitalization. Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. C. King, Associate 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.