Citation Nr: 20034534 Decision Date: 05/18/20 Archive Date: 05/18/20 DOCKET NO. 16-51 566 DATE: May 18, 2020 ORDER The claim for entitlement to service connection for a speech impediment is reopened. The claim for service connection for left knee chondromalacia is reopened. REMANDED Entitlement to service connection for a speech impediment is remanded. Entitlement to service connection for left knee chondromalacia is remanded. Entitlement to service connection for a right knee disability is remanded. FINDING OF FACT VA has received new evidence since a June 2001 rating decision that denied service connection for left knee chondromalacia and a speech impediment that relates to the bases for the prior denial and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the service connection claim for left knee chondromalacia. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. New and material evidence has been received to reopen the service connection claim for a speech impediment. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from July 1975 to August 1975. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a February 2015 rating decision. The Veteran testified before the undersigned during a November 2019 hearing. New and Material Evidence A claimant may reopen a finally adjudicated claim by submitting new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. New evidence is defined as existing evidence not previously submitted to the VA, and 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. 38 C.F.R. § 3.156(a). 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. Id. The Court has held the phrase “raises a reasonable possibility of establishing the claim” must be viewed as “enabling rather than precluding reopening.” Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). The Court emphasized that 38 C.F.R. § 3.156 “does not require new and material evidence as to each previously unproven element of a claim.” Id. at 120. The Court further explained the provisions of 38 C.F.R. § 3.156(a) create a “low threshold” for finding new and material evidence that is favorable to the claimant. Id. A determination of whether a previously denied claim should be reopened is a jurisdictional matter that must be addressed before the Board may consider an underlying claim. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). Therefore, regardless of the AOJ’s action, the Board must address the question of whether new and material evidence has been presented to reopen a claim of service connection. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). A final June 2001 rating decision previously denied a request to reopen claims of service connection for the Veteran’s left knee disability and speech impediment, which had previously been denied for failing to show the Veteran’s conditions were related to service. In the time since this denial, new medical evidence has been associated with the claims file, including November and December 2019 medical opinions provided by private doctors arguing the Veteran’s conditions were aggravated by military service. These items constitute new and material evidence; therefore, the criteria for reopening the issue of entitlement to service connection for a left knee disability and a speech impediment have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS FOR REMAND Entitlement to service connection for a speech impediment The Veteran contends he has a speech impediment that was either caused or aggravated by basic training in active service. The presumption of soundness applies only when a disease or injury not noted upon entry to service manifests in service, and a question arises as to whether it preexisted service. Gilbert v. Shinseki, 26 Vet. App. 48, 55 (2012), aff’d 749 F.3d 1370 (Fed. Cir. 2014). In this case, there is a question as to whether the Veteran’s speech impediment existed prior to service. The Veteran’s service treatment records contain a medical board report showing a diagnosis of a speech impediment; however, the Veteran’s July 1975 entrance examination is absent of any notations of defects, infirmities, or disorders. Therefore, as no speech impediment was noted on the Veteran’s entrance examination, the presumption of soundness attaches with respect to this condition. 38 C.F.R. § 3.304(b). Because the presumption of soundness attaches, there must be clear and unmistakable evidence that the disorder both pre-existed service and was not aggravated in service. Id; see also Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Clear and unmistakable evidence is defined as obvious or manifest. 38 C.F.R. § 3.306(b). Clear and unmistakable evidence means that the evidence “cannot be misinterpreted and misunderstood, i.e., it is undebatable.” Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009). The accounts of record, most of which were given in statements to VA and medical providers decades after service, contradict each other regarding whether this condition existed before service; therefore, the Board finds there is not clear and unmistakable evidence of a preexisting speech impediment; therefore, the presumption is not rebutted. Therefore, the question is one of direct service connection. The Veteran has provided a private opinion from a psychologist who has indicated the Veteran has anxiety and depression related to service, with related stuttering and alcohol use disorder. This opinion establishes that the Veteran’s stammering increases when anxious and interferes with his ability to be understood in social situations. Since obtaining this opinion, VA has granted service connection for generalized anxiety disorder, depressive disorder, and alcohol use disorder with a 30 percent rating. The private medical opinion does not clearly indicate whether the Veteran’s speech impediment is considered a symptom of his psychiatric disorder or if it is a separate condition that either started in service or is caused or aggravated by the Veteran’s psychiatric disorder. For this reason, the Board finds a remand is necessary to address this question. Entitlement to service connection for bilateral knee disabilities The Veteran contends that he has bilateral knee pain as the result of a knee injury sustained during training in active service. In this case, there is a question regarding whether the Veteran had a preexisting left knee condition at entry to service because the Veteran’s service treatment records contain a medical board report showing a diagnosis of left knee chondromalacia and old left knee osteochondritis. The Veteran’s July 1975 entrance examination, however, is absent of any notations of defects, infirmities, or disorders with respect to the left knee. Thus, the presumption of soundness attaches with respect to the Veteran’s left knee. 38 C.F.R. § 3.304(b). Because the presumption of soundness attaches, there must be clear and unmistakable evidence that the disorder both pre-existed service and was not aggravated in service. Gilbert, 26 Vet. App. at 55; see also Wagner, 370 F.3d at 1096 (Fed. Cir. 2004). Imaging of the Veteran’s left knee performed less than one month after entry to service showed objective evidence of old osteochondritis. The medical board found this to be proof of a pre-existing knee condition, and the more recent medical opinions of record, including those submitted by the Veteran in support of his case, have acknowledged this as evidence of a pre-existing condition. Therefore, the Board finds that the most competent and credible evidence of record shows that there is clear and unmistakable evidence that the Veteran had a preexisting left knee disability on entry to service. Nonetheless, in order to rebut the presumption of soundness, VA must show that not only did the disability clearly and unmistakably pre-exist service, but also that it was clearly and unmistakably not aggravated during service. As demonstrated by the Veteran’s medical discharge due to left knee chondromalacia approximately one month after entry to service, his left knee disability was of such severity at the time of his discharge that he could no longer continue service. As his knee was not symptomatic at the time of his enlistment exam, the evidence of record illustrates that there is not clear and unmistakable evidence that the disability was not aggravated by military service. Therefore, the presumption of soundness has not been rebutted. As the presumption of soundness has not been rebutted, the question is one of direct service connection. Here, VA treatment records and other private treatment records from the period on appeal and earlier establish that the Veteran has chronic bilateral leg and knee pain. These records do not clearly establish a diagnosis explaining the etiology of this pain, nor do they describe the level of functional impairment caused by this chronic pain. In Saunders v. Wilkie, the Federal Circuit held pain alone may constitute a disability, even without an identifiable underlying pathology, provided that such pain is productive of functional impairment. 886 F.3d 1356, 1368 (Fed. Cir. 2018). Since the record establishes current chronic leg and knee pain, additional development is necessary to determine whether this pain constitutes a compensable disability pursuant to Saunders. If so, an opinion is also necessary to determine whether the current knee pain is at least as likely as not related to service. The matters are REMANDED for the following action: 1. Obtain a medical opinion regarding the nature and etiology of the Veteran’s speech impediment, to include stuttering and stammering. The Veteran should only be scheduled for an examination if deemed necessary by the selected examiner. The examiner must opine whether the Veteran’s speech impediment is a separate and distinct disability or is a symptom of the currently service-connected psychiatric disability. If the speech impediment is a separate and distinct disability, the examiner must opine whether it is at least as likely as not that it commenced during service or is otherwise directly related to service or whether it is at least as likely as not caused by or aggravated by the Veteran’s service-connected psychiatric disability. If aggravation is found, the examiner must attempt to establish the baseline level of severity of the speech impediment prior to aggravation by the service-connected psychiatric disability. The examiner is advised that because no speech impediment was clinically noted on the Veteran’s military entrance examination, the examiner must disregard any evidence suggesting the disability may have pre-existed military service. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran’s reports, he or she must provide a reason for doing so. The examiner’s report must include a complete rationale for the opinion. 2. Obtain a medical opinion regarding the nature and etiology of any bilateral knee disabilities. The Veteran should only be scheduled for a new examination if deemed necessary by the selected examiner. The examiner must first identify any current knee disabilities. For each disability identified, the examiner must opine whether the disability is at least as likely as not related to an in-service injury, event, or disease, to include the knee complaints noted in the Veteran’s service treatment records. Because no knee disability was clinically noted upon the Veteran’s entry into military service, the examiner must disregard any evidence suggesting the Veteran’s left knee disability pre-existed service. The Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran’s reports, he or she must provide a reason for doing so. The examiner is further advised that it is not necessary for pain to attributable to a specific diagnosis or pathology to be considered a service-connected disability so long as the pain is productive of functional impairment. Therefore, if no knee disability is diagnosed, the examiner must opine whether it is at least as likely as not that the Veteran’s current knee pain in each knee results in functional loss. If the knee pain in either knee results in functional loss, the examiner must opine as to whether this current knee pain is related to the Veteran’s military service. The examiner’s report must include a complete rationale for the opinion. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Pitman, 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.