Citation Nr: 20023901 Decision Date: 04/07/20 Archive Date: 04/07/20 DOCKET NO. 18-22 994 DATE: April 7, 2020 ORDER New and material evidence having been received, the claim of entitlement to service connection for a left knee condition is reopened and, to this extent only, the appeal is granted. New and material evidence having been received, the claim of entitlement to service connection for a psychiatric disorder, to include post-traumatic stress disorder (PTSD), claimed as military sexual trauma (MST), is reopened and, to this extent only, the appeal is granted. REMANDED The issue of service connection for a left knee condition is remanded. The issue of service connection for a psychiatric disorder, to include PTSD, claimed as MST, is remanded. FINDINGS OF FACT 1. In a final August 2014 rating decision, the RO denied the Veteran’s claim of service connection for a left knee condition. 2. Evidence associated with the record since the final August 2014 rating decision is not cumulative and redundant of the evidence of record at the time of the decision and does raise a reasonable possibility of substantiating the Veteran’s claim of service connection for a left knee condition. 3. In a final January 2014 rating decision, the RO denied the Veteran’s claim of service connection for depression. 4. Evidence associated with the record since the final January 2014 rating decision is not cumulative and redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the Veteran’s claim of service connection for a psychiatric disorder, to include PTSD, claimed as MST. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claim of service connection for a left knee condition. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 2. New and material evidence has been received to reopen the claim of service connection for a psychiatric disorder, to include PTSD, claimed as MST. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from July 1983 to June 1987. New and Material Evidence 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) (2017). When determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Evidence is new if it has not been previously submitted to agency decision makers and is material if, when considered with the evidence of record, it would at least trigger VA’s duty to assist by providing a medical opinion. Id. For purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. 1. New and material evidence having been received, the claim of service connection for a left knee condition is reopened and, to this extent only, the appeal is granted. The Veteran’s claim was originally denied in August 2014. He was notified of the outcome and did not file a notice of disagreement within one year, nor was any additional evidence pertinent to the claim received within one year of the August 2014 decision. The August 2014 rating decision became final based on the evidence then of record. The evidence considered in August 2014 includes service treatment records, VA medical records, a June 2014 VA examination, and lay statements. The August 2014 rating decision denied the Veteran’s claim based on the RO’s finding that there was no evidence that the Veteran’s left knee condition was related to his service. Since the last final rating decision, the evidence pertaining to the Veteran’s claimed left knee condition includes VA medical records, a May 2018 VA examination, a March 2020 private medical opinion, and statements made by the Veteran. The evidence has not been previously considered and is evidence which tends to substantiate the previously denied claim. See Shade, 24 Vet. App. at 120-21. The evidence is both new and material, and the Board finds that the reopening of this claim is warranted. 2. New and material evidence having been received, the claim of service connection for a psychiatric disorder, to include PTSD, claimed as MST, is reopened and, to this extent only, the appeal is granted. The Veteran’s claim was originally denied in January 2014. He was notified of the outcome and did not file a notice of disagreement within one year, nor was any additional evidence pertinent to the claim received within one year of the January 2014 decision. The January 2014 rating decision became final based on the evidence then of record. The evidence considered in January 2014 includes service treatment records, military personnel records, VA treatment records, and lay statements. The January 2014 rating decision denied the Veteran’s original service connection claim based on the RO’s finding that there was no evidence of a relationship between depressive disorder and the Veteran’s service. Since the last final rating decision, the evidence pertaining to the Veteran’s claimed psychiatric disorder includes a November 2017 VA examination, VA medical records, and statements made by the Veteran. The evidence has not been previously considered and is evidence which tends to substantiate the previously denied claim. See Shade, 24 Vet. App. at 120-21. The evidence is both new and material, and the Board finds that the reopening of this claim is warranted. REASONS FOR REMAND The issue of service connection for a left knee condition is remanded. The issue of service connection for a psychiatric disorder, to include PTSD, claimed as MST, is remanded. These matters are REMANDED for the following action: 1. BACKGROUND FOR THE RO ADJUDICATOR: In a March 2020 private medical opinion, the examiner stated that the Veteran’s partial knee replacement is due to degenerative joint disease (DJD). The examiner noted gradual onset of left knee pain with onset in 1987 and continuing throughout service, which progressed and resulted in significant DJD. The examiner opined that it is at least as likely as not that the left knee condition is a progression of problems from the left knee condition which began in-service. No rationale was provided. The Board is unable to determine the probative value of the opinion. If the findings on an examination report do not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes. 38 C.F.R. § 4.2. The Veteran contends that his psychiatric disorder, to include PTSD, claimed as MST, is related to a sexual assault that occurred in-service. In a November 2017 VA examination, the examiner stated that the Veteran did not meet the criteria for a diagnosis of PTSD under DSM-5 criteria. The examiner noted that the Veteran reported MST in 1984 and that the Veteran never reported it while in-service. The examiner stated that the Veteran's clinical presentation does not meet criteria for PTSD since no specific “markers” could not be found in Veteran's records. However, the Veteran’s service treatment records indicate treatment for urethral discharge and nongonococcal urethritis (NGU), which are markers of PTSD. The opinion provided in the November 2017 VA PTSD examination is not factually accurate since the Veteran’s diagnosis is based, in part, on the examiner’s inaccurate statement that the Veteran has no markers of PTSD. Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion depends upon whether it is factually accurate, fully articulated, and contains sound reasoning for the conclusion, not the mere fact that the claims file was reviewed). 2. Obtain any outstanding VA medical records and associate them with the claims file. 3. Schedule the Veteran for an examination with a VA medical examiner to obtain an opinion as to the etiology of the Veteran's left knee condition. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished, and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The examiner must elicit from the Veteran a full history and/or description of his active service. All evidence and a copy of this remand will be made available to the examiner, who will acknowledge receipt and review of these materials. After reviewing the claims file, the examiner is asked to: (a.) Provide an opinion as to whether the Veteran has a current diagnosis of DJD of the left knee. (b.) Provide an opinion as to whether the current DJD of the left knee is etiologically related to his in-service notation of DJD of the left knee. (c.) Provide an opinion as to whether the Veteran’s June 2019 left knee replacement is related to DJD. The examiner must review the entire record in conjunction with rendering the requested opinions. In addition to any records that are generated because of this Remand, the VA examiner’s attention is drawn to the following: * The Veteran's June 1987 separation evaluation indicates a diagnosis of left knee patellofemoral arthralgia as beginning DJD. * VA treatment records indicate that as early as January 2001, the Veteran was evaluated for left knee pain, which was noted as probable DJD. * A December 2012 VA medical record indicating an evaluation for left knee pain. * A June 2014 VA examination that provided a negative nexus opinion. * VA medical records from 2015 to 2017 indicating degenerative changes in the left knee. * A May 2018 VA examination, in which the examiner noted a diagnosis of left knee medial meniscal tear with popliteal cyst. The examiner noted that the Veteran reported onset in-service, and the examiner noted that the Veteran was evaluated in-service for a left knee condition of patellofemoral arthralgia. The examiner opined that the current condition is less likely than not incurred in, caused by, or a continuation of his left knee condition in service. The examiner stated that a 1992 x-ray of the left knee was negative, and that the current left knee condition of medical meniscal tear with popliteal cyst is noted to be documented in 2017. The examiner stated that the Veteran's patellofemoral arthralgia was resolved as evidenced by the negative 1992 x-ray, and that the predominance of medical literature does not support a patellofemoral arthralgia that occurred in the late 1980's would cause the left knee condition of medical meniscal tear with popliteal cyst in 2017. * A July 2019 left knee replacement. * In a March 2020 private medical opinion, the examiner stated that the Veteran’s partial knee replacement is due to DJD. The examiner noted gradual onset of left knee pain with onset in 1987 and continuing throughout service, which progressed and resulted in significant DJD. The examiner opined that it is at least as likely as not that the left knee condition is a progression of problems from the left knee condition which began in-service. No rationale was provided. 4. Return the file to the examiner who conducted the November 2017 VA PTSD examination and request an addendum opinion. If that examiner is no longer available, conduct the following development with a similarly qualified examiner. The entire claims file, including a copy of the Remand, should be made available to, and be reviewed by, the VA examiner. All appropriate tests, studies, and consultations should be accomplished, and all clinical findings should be reported in detail. An explanation should be given for all opinions and conclusions rendered. After reviewing the claims file, the examiner is asked to: (a.) Provide an opinion as to whether the Veteran has a current diagnosis of PTSD. (b.) The examiner must specifically address the service treatment records that indicate treatment for urethral discharge in June 1984 and nongonococcal urethritis (NGU) in February 1985, which are markers for PTSD. (c.) Provide an opinion as to whether a current diagnosis of PTSD is etiologically related to the Veteran’s service. The examiner must review the entire record in conjunction with rendering the requested opinions. In addition to any records that are generated because of this Remand, the VA examiner’s attention is drawn to the following: * In an October 1982 medical history questionnaire, the Veteran specifically denied then having or ever having had “nervous trouble of any sort,” depression or excessive worry. * The Veteran stated that he was sexually assaulted in-service in 1984, approximately one year after he entered service. He stated that the incident occurred after a night of drinking when a sergeant sexually assaulted him. The Veteran stated that he was embarrassed and never reported the incident. * A June 1984 service treatment record indicates that the Veteran was treated for a urethral discharge. * A February 1985 service treatment record indicates that the Veteran was treated for nongonococcal urethritis (NGU). The examining physician reported that the Veteran was treated with penicillin and that the disease had no sequalae. * In his June 1987 pre-separation medical history questionnaire, the Veteran again specifically denied then having or ever having had “nervous trouble of any sort,” depression or excessive worry. * In a November 2017 VA examination, the examiner diagnosed alcohol use disorder, cocaine use disorder, and unspecified depressive disorder, but found the Veteran did not meet the criteria for a diagnosis of PTSD under DSM-5 criteria. The examiner noted that the Veteran reported MST in 1984 and that the Veteran never reported it in-service. The examiner stated that the Veteran's clinical presentation does not meet criteria for PTSD. The examiner opined that the Veteran's current depressive disorder is less likely than not due to the MST he has reported. The examiner noted that specific markers could not be found in Veteran's records. The examiner opined that the Veteran's primary diagnoses are substance use disorders, and depressive symptoms that are likely a result of his long history and consequences of substance abuse. However, the record indicates that the examiner did not consider the service treatment records that indicate treatment for urethral discharge and nongonococcal urethritis (NGU). A thorough explanation must be provided for the opinions rendered. If the examiner cannot provide the requested opinions without resorting to speculation, s/he should expressly indicate this and provide supporting rationale as to why the opinions cannot be made without resorting to speculation. 5. Following the review and any additional development deemed necessary, re-adjudicate the claims. Should the claims not be granted in its entirety, issue an appropriate supplemental statement of the case (SSOC) and forward the claims to the Board for adjudication. (Continued on the next page)   The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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 (2014). Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Timothy T. Emmart 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.