Citation Nr: 20030128 Decision Date: 04/29/20 Archive Date: 04/29/20 DOCKET NO. 18-40 899 DATE: April 29, 2020 ORDER 1. The appeal to reopen a claim of service connection for a right knee disability is granted. 2. The appeal to reopen a claim of service connection for depression is granted. REMANDED 3. Entitlement to service connection for a right knee disability is remanded. 4. Entitlement to service connection for a psychiatric disability (to include major depressive disorder and posttraumatic stress disorder (PTSD)) is remanded. FINDINGS OF FACT 1. A May 2013 rating decision denied the Veteran service connection for a right knee disability and depression, finding there was no evidence of the disabilities in service or that they may be related to his service or secondary to a service-connected disability. 2. Evidence received since the May 2013 rating decision includes the Veteran’s statements reporting he was treated for a right knee injury at Whiting Field in service and has experienced problems since; relates to an unestablished fact necessary to substantiate the claim of service connection for a right knee disability; and raises a reasonable possibility of substantiating such claim. 3. Evidence received since the May 2013 rating decision includes a February 2017 VA examination medical report indicating the Veteran’s psychiatric disabilities are related to his service; relates to an unestablished fact necessary to substantiate the claim of service connection for a psychiatric disability; and together with evidence previously in the record raises a reasonable possibility of substantiating such claim CONCLUSIONS OF LAW 1. 2. New and material evidence has been received, and the claims of service connection for a right knee disability and depression may be reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from June 1973 to June 1977, from April 1978 to December 1989, from July 1994 to February 1995, and in the United States National Guard from September 1991 to August 2002. These matters are before the Board of Veterans’ Appeals (Board) on appeal of a June 2014 Department of Veterans Affairs (VA) rating decision. New and Material Evidence Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7105. However, a claim on which there is a final decision may be reopened if new and material evidence is received. 38 U.S.C. § 5108. “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). When determining whether a claim should be reopened, the credibility of newly submitted evidence is presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003). The United States Court of Appeals for Veterans Claims (CAVC) has held that the requirement of new and material evidence raising a reasonable possibility of substantiating the claim is a low threshold requirement. The CAVC interpreted the language of 38 C.F.R. § 3.156 (a) and viewed the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding opening”. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The May 2013 rating decision on appeal denied service connection for depression and a right knee disability, finding essentially that such disabilities were not shown to be related to the Veteran’s service. He did not appeal the decision or submit new and material evidence within the following year, and it became final. 38 U.S.C. § 7105. Considering the evidence of record at the time of, and basis for, the previous denial of the claims, for evidence to relate to an unestablished fact necessary to substantiate the claims and be considered new and material, it would have to be evidence received since the prior rating decision that tends to show the depression and right knee disabilities are etiologically related to his service or secondary to a service-connected disability. 1. The appeal to reopen a claim of service connection for a right knee disability is granted. Evidence added to the record since May 2013 includes the August 2018 VA Form 9, wherein the Veteran alleged he injured his right knee when he fell from a helicopter at Whiting Field and his right leg was placed in a cast by medical staff, and that his right leg has continued to give him trouble to this day. Such evidence (which identifies a possible etiology (injury) in service for a current right knee disability (and for purposes of reopening is presumed credible) directly addresses a basis for the prior denial of the claim; pertains to an unestablished fact necessary to substantiate the claims; and, considering the “low threshold” standard for reopening endorsed by the CAVC in Shade, raises a reasonable possibility of substantiating the claim. Accordingly, the Board finds that the evidence received since the May 2013 rating decision to be both new and material, and that the claim of service connection for a right knee disability may be reopened 2. The appeal to reopen a claim of service connection for depression is granted. Evidence added to the record since May 2013 includes a February 2017 VA examination report, indicating the Veteran has diagnoses of PTSD and a major depressive disorder and opining that the PTSD is related to stressor events in service, and in essence that his depression is a manifestation of, or secondary to, the PTSD. The identification of an alternate diagnosis for a disability coupled with evidence that the disability may be etiologically related to service may constitute new and material evidence sufficient to reopen a claim. The evidence received since May 2013 directly addresses a basis for the prior denial of these claims; pertains to an unestablished fact necessary to substantiate the claims; and, considering the “low threshold” standard for reopening endorsed by the CAVC in Shade, raises a reasonable possibility of substantiating the claims. Accordingly, the Board finds that the evidence received since the May 2013 decisional letter is both new and material and that the claim of service connection for psychiatric disability (previously denied as depression) may be reopened. REASONS FOR REMAND 3. Entitlement to service connection for a right knee disability. The Veteran asserts alternative theories of entitlement to service connection for a right knee disability, direct and secondary. Regarding direct service connection, he claims that his current right knee disability is due to a right knee injury he sustained in service when he fell from a helicopter. The secondary service connection theory of entitlement is premised on the allegation that his right knee disability was caused by or aggravated by his service-connected left knee disability. In his August 2018 VA Form 9, the Veteran alleged he injured his right knee and was treated at Whiting Field. His DD Form 214 for the period from June 1973 to June 1977 notes that his last duty station was at Whiting Field. The record does not contain any records of treatment during that period of service, and there is no indication that such records were specifically sought. Considering the Veteran’s accounts and that any such records may be critical to this claim, exhaustive development to locate and secure them is necessary. On August 2012 VA examination, the provider noted the Veteran had two separate injuries to the knees in service, and they occurred in different ways, at different times, and the therapy was different for each injury. The examiner opined that the left knee condition and the compensatory action of the right knee “may have worsened” the right knee condition but there is no way to establish a baseline for the right knee’s originals disability so there is no way to determine the amount of added disability to the right knee. The August 2012 VA examination is inadequate for rating purposes as it contains inadequate rationale and is stated in speculative terms (“may”). In a December 2016 medical advisory opinion, the provider opined that the Veteran’s right knee condition is less likely than not proximately due to or aggravated by his left knee disability, noting there is no evidence the left knee condition caused or worsened this condition “in the STRs” suggesting the scope of the opinion was quite limited. An examination to obtain a fully adequate medical opinion in this matter is necessary. 4. Entitlement to service connection for a psychiatric disability. The Board finds that further development of the record is needed for a proper adjudication of this claim. The Veteran asserts that he has PTSD related to stressor events in service. The occurrence of an alleged stressor event in service a threshold adjudicatory determination that must be made in a claim seeking service connection for PTSD. The Veteran reported stressors included recovering a friend’s body after an airplane crash at China Lake in 1979 and witnessing 6 servicemembers killed on the U.S.S. Nimitz or U.S.S. Forrestal flight deck following equipment malfunctions. A November 2016 formal finding by the United States Army and Joint Services Records Research Center (JSRRC) verified that an aircraft crash at China Lake on April 5, 1979 resulted in 2 casualties and that the Veteran served at China Lake from September 1978 to May 1980 (so presence in proximity to where the incident occurred is shown); JSRRC was unable to confirm whether the Veteran participated in the clean-up and retrieval of the crashed craft. The Regional Office (RO) made no attempt to verify his second alleged stressor in service resulting in the deaths of servicemen (an events eminently verifiable). On February 2017 VA examination, PTSD and major depressive disorder were diagnosed (in accordance with DSM-5). The Veteran’s wife reported that he has been having bad dreams for over 25 years and had never mentioned such symptoms to anyone until 2015, when they began to bother him more. The examiner noted the Veteran’s report of a postservice stressor (attempting to revive a neighbor) and opined that the event traumatized him and perhaps exacerbated his PTSD symptoms, which were there but not as severe as they have been more recently. The examiner opined that the PTSD symptoms are related to his alleged stressors of witnessing 6 people killed on the deck from equipment malfunctions (which has not been verified), and witnessing an airplane crash where his friend died. The examiner opined the reported stressors are consistent with the places, types, and circumstances of the Veteran’s service and that it is more likely than not that he has had symptoms of PTSD all along dating back to the 1980s. In a March 2017 addendum, the February 2017 examiner indicated that the details of the stressors were based on the Veteran’s history and there is no objective evidence to deny or accept these reports. He opined that it is plausible that the particular stress of attempting to resuscitate a person after service could have reactivated memories of the events during service which he successfully suppressed or had not been talking about but had clearly been treated for depression. The examiner did not find it feasible to provide a different diagnosis and stated the diagnosed could be stated as PTSD. chronic, delayed. In an April 2017 medical advisory opinion, an examiner (who had not interviewed the Veteran) noted that the Veteran has a longstanding therapist, but the records were not available for review. He opined, based on the available information, that it is less likely than not that the Veteran has a mental disorder related to events in service. In November 2017, the Veteran clarified that he has received all of his medical treatment since retirement from the Jacksonville Naval Hospital and through VA providers at the Mountain Home VA medical center. A November 24, 2017 response to a request for records from the Jacksonville Naval Hospital notes the Veteran’s patient record was retired and may be sought from the National Personnel Records Center. An April 2018 request for information response notes searches for Jacksonville Naval Hospital records for 1982 were conducted but no records were located. There is no indication that a search for any other year was conductive, suggesting the search may have been less than exhaustive. Further development for outstanding records is necessary. These matters are REMANDED for the following: 1. Ask the Veteran to specifically identify the years when he was treated at the Jacksonville Naval Hospital and ask him to provide a detailed description of all of his alleged stressor events in service (specifically including the deaths of servicemen on a flight deck and at China Lake on February 2017 VA examination). If the Veteran fails to provide sufficient information to pursue verification, advise him of what further information is necessary. 2. Arrange for verification of the alleged stressor events, including if necessary, by searches of ships logs accounts. Make findings for the record addressing: whether the Veteran was on the ship in question when a verified stressor event occurred; and whether it is reasonably shown that the Veteran was indeed exposed the alleged event at China Lake (acknowledging that the record shows he was stationed there when it occurred). The findings should be entered in the record in a memorandum. 3. Arrange for an exhaustive search to secure for the record any outstanding service treatment records (in particular any pertaining to the Veteran’s treatment at Whiting Field from 1973 to 1977 and from Jacksonville Naval Hospital for the years when he reports he was seen there postservice. The search should encompass all storage facilities where such records may have been retired. If the records are unavailable because they have been irretrievably lost or destroyed, it should so noted for the record (with the scope of the search described). Ask the Veteran to provide copies of any pertinent service and VA treatment records in his possession). 4. Then, arrange for an orthopedic examination of the Veteran to determine the nature and likely etiology of his right knee disability. The Veteran’s record must be reviewed by the examiner in conjunction with the examination. The examiner should: (a.) Identify each right knee disability found by diagnosis. (b.) Identify the likely etiology for each right knee disability diagnosed. Specifically, is it at least as likely as not (a 50% or greater probability) that it is etiologically related to the Veteran’s active service, to include his reported right leg injury therein. If records pertaining to such injury are unavailable, opine whether the disability found is consistent with the type of injury in service the Veteran describes. (c.) If a right knee disability is not directly related to service, is it at least as likely as not that the it was caused or aggravated by (increased in severity due to) the Veteran’s service-connected left knee disability (and any related gait impairment). [The opinion must address aggravation.] (d.) If it is found that his service-connected left knee disability did not cause, but aggravated, the Veteran’s right knee disability, specify, to the extent possible, the degree of disability (symptoms and/or impairment) that resulted from such aggravation. (e.) If a diagnosed right knee disability is determined to not have been caused or aggravated by the service-connected left knee disability, identify the etiology for the right knee disability considered to be more likely (and explain why that is so). All opinions must include rationale. If the examiner cannot provide a requested opinion without resort to speculation, it must be so stated, with explanation why an opinion would require speculation (e.g., whether further information or testing necessary was needed, to make a determination; or whether the opinion could not be rendered due to limitations in the knowledge of the medical community at large or of the particular examiner). 5. Also, arrange for the Veteran to be examined by an appropriate VA psychiatrist or psychologist to determine the nature and likely etiology of his psychiatric disability. The examiner should be advised of what, if any, stressor event(s) in service are found to be corroborated. Upon examination of the Veteran and review of his record, the examiner should: (a.) Identify each psychiatric disability found by diagnosis. If a stressor event in service is corroborated, specifically opine whether the Veteran has a diagnosis of PTSD based on the corroborated stressor event? If not, identify the criteria for such diagnosis found lacking. (b.) Identify the likely etiology of any psychiatric disability other than PTSD diagnosed. Specifically, is it at least as likely as not (a 50% or greater probability) that the disability was incurred, is otherwise etiologically related to the Veteran’s service or was caused or aggravated by a service connected disability? Include complete rationale with all opinions. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Naumovich, 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.