Citation Nr: 21002331 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 17-49 030 DATE: January 13, 2021 ORDER The petition to reopen the claim of entitlement to service connection for a psychiatric disorder, to include as secondary to service-connected left knee chondromalacia, based on the submission of new and material evidence is granted. REMANDED Entitlement to service connection for a bilateral eye disorder is remanded. Entitlement to service connection for a psychiatric disorder, to include as secondary to service-connected left knee chondromalacia, is remanded. FINDING OF FACT 1. In a February 2008 rating decision, the RO denied service connection for anxiety, depression, and chronic pain syndrome (CPS). The Veteran did not appeal or submit new and material evidence within the one-year period thereafter. 2. Evidence received since the February 2008 rating decision, by itself, or in conjunction with previously considered evidence, does relate to an unestablished fact necessary to substantiate the underlying claims of entitlement to service connection for a psychiatric disorder, to include anxiety, depression, and CPS. CONCLUSION OF LAW 1. The February 2008 rating decision denying service connection for anxiety, depression, and CPS is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156(b), 20.302, 20.1103 (2018). 2. New and material evidence has been received to warrant reopening of the claim of service connection for a psychiatric disorder, to include as secondary to service-connected left knee chondromalacia. 38 U.S.C. §§ 5107, 5108 (2012); 38 C.F.R. § 3.156 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1974 to February 1976. These matters are before the Board of Veterans’ Appeals (Board) on appeal from an April 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. In August 2020, the Veteran testified at a hearing before the undersigned Veterans Law Judge. 1. The petition to reopen the claim of entitlement to service connection for a psychiatric disorder, to include as secondary to service-connected left knee chondromalacia, is granted. In general, decisions of the RO and the Board that are not appealed in the prescribed time period are final. 38 U.S.C. §§ 7104, 7105 (2012); 38 C.F.R. §§ 3.104, 20.1100, 20.1103 (2017). A finally disallowed claim, however, may be reopened when new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108 (2012). Regardless of the action taken by the RO, the Board must determine whether new and material evidence has been received subsequent to an unappealed RO denial. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). As part of this review, the Board considers evidence of record at the time of the previous final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim, and evidence submitted since a prior final disallowance. Evans v. Brown, 9 Vet. App. 273, 285-86 (1996). 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 (2017). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, to include by triggering the Secretary’s duty to assist or consideration of a new theory of entitlement. Shade, 24 Vet. App. at 117-18. Additionally, new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). Furthermore, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed but were not associated with the claims file when VA first decided the claim, VA will reconsider the claim, rather than requiring new and material evidence. 38 C.F.R. § 3.156(c)(1). To establish service connection, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called nexus requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). In a February 2008 rating decision, the RO denied service connection because there was no diagnosis of record for any of the claimed psychiatric conditions. The Veteran did not appeal that decision nor submit new and material evidence within one year. The rating decision is thus final based on the evidence then of record. See 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. An April 2014 rating decision found there was no new and material evidence regarding anxiety disorder and depression. The rating decision also denied service connection for PTSD. The Board notes that in a March 2017 Report of General Information, the Veteran clarified that he did not wish to continue the PTSD appeal. Therefore, his claim of entitlement to PTSD is not before the Board. Evidence of record at the time of the February 2008 decision includes 1) the Veteran’s STRs; 2) the Veteran’s DD-214; 3) VA treatment records from 1978; 4) and VA treatment records from 2001. These records did not demonstrate any current disabilities. Evidence submitted after the February 2008 decision includes 1) military personnel records; 2) a March 2014 VA examination for PTSD; 3) VA treatment records; 4) Social Security records; and 5) an August 2020 hearing transcript. VA treatment records diagnosed depression and chronic pain. The Board finds that new and material evidence has been presented. The evidence, including the March 2014 VA examination and VA treatment records, are new because they were not previously submitted to VA. The evidence is material because it relates to unestablished facts necessary to establish the claim - evidence of diagnosed mental health disorders. See 38 C.F.R. § 3.303(a); Shedden, 381 F.3d at 1167. Additionally, the evidence is neither cumulative nor redundant as that evidence was not of record at the time of the prior denial. See 38 C.F.R. § 3.156(a). Further, new evidence is to be presumed credible for purposes of deciding whether a previously denied claim may be reopened. Justus, 3 Vet. App. at 513. Moreover, when considering the new evidence in conjunction with the evidence already of record, combined with VA assistance including an examination, it raises a reasonable possibility of substantiating the claim. Shade, 24 Vet. App. at 117. Accordingly, for all of the above reasons, the Veteran’s claims are reopened. REASONS FOR REMAND 1. Entitlement to service connection for a bilateral eye disorder. First, remand is required to obtain outstanding VA records of treatment. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38 U.S.C. § 5103A (2014); 38 C.F.R. § 3.159(c) (2018). This includes making as many requests as are necessary to obtain relevant records from a Federal department or agency, including, but not limited to, records from Federal agencies such as any relevant VA treatment records. 38 C.F.R. § 3.159(c)(2). The record contains VA treatment records beginning in 2000 from the Louisiana VAMC. In the August 2020 hearing, the Veteran stated that he only sought VA treatment for his eyes, including for getting his first pair of glasses following the in-service accident. There are VA records documenting the Veteran’s attempts to replace his glasses but no records addressing the initial examination for his first pair of glasses following the accident. The Veteran also stated that his eyes were evaluated by the VA and he was told that he had excessive scar tissue on his eyes. However, those records are not associated with the claims file. Therefore, it appears that there may be missing VA treatment records. Efforts must be made to obtain outstanding relevant records from any VA medical center that has provided treatment to the Veteran. Second, remand is required for an adequate VA examination. Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). When a Veteran has provided competent lay statements of an in-service injury, the examiner must consider and address them when developing his rationale. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007) (holding that when the Veteran has provided lay testimony of an in-service injury, an examiner cannot ignore that lay evidence and base his or her opinion that there is no relationship to service on the absence of in-service corroborating medical records). In the March 2014 VA examination, the examiner determined that the Veteran’s eye conditions, including dry eyes, meibomitis, cataracts, and borderline glaucoma were less likely than not related to the in-service accident as it would have taken a much more severe burn to the eyes than described by the Veteran in order to result in such conditions. However, the examiner did not address the Veteran’s lay statements from the August 2020 hearing, during which he described the severity of the burn to his eyes. The Veteran stated that he was incapacitated and bandaged for two weeks following the accident, and not a couple of days as the examiner noted. The Veteran also stated that he began to see reflections in his eyes following the incident and that VA physicians noted excessive scar tissue on his eyes. As the examiner did not address the Veteran’s lay statements describing the severity of his in-service bilateral eye injury in providing his nexus opinion, remand is required for an adequate addendum opinion. 1. Entitlement to service connection for a psychiatric disorder, to include as secondary to a service-connected left knee disorder, is remanded. First, remand is required to obtain a VA examination. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). VA’s duty to assist includes providing a medical examination when is necessary to make a decision on a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The RO did not provide the Veteran with an examination. Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or recurrent symptoms of disability, (2) establishes that the Veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006) (noting that the third element establishes a low threshold and requires only that the evidence “indicates” that there “may” be a nexus between the current disability or symptoms and active service, including equivocal or non-specific medical evidence or credible lay evidence of continuity of symptomatology). May 2001 VA treatment records noted a diagnosis of depression and chronic pain syndrome. December 2009 VA records noted diagnoses of bipolar II disorder and chronic pain disorder. The March 2014 VA examination for PTSD noted that the Veteran had been hospitalized for psychiatric treatment at Touro Hospital in 1995. The Veteran stated at the August 2020 hearing, that he believed his psychiatric condition was due to the accident in service which caused him to hurt his knee and ended his military career. In the alternative, the Veteran also stated that his psychiatric conditions may be due to the difficulties and pain he experienced due to his service-connected left knee chondromalacia. The Board notes that October 1974 STRs document the event where the Veteran was struck by a vehicle while on guard duty. April 1974 STRs also document complaints of a left knee injury. Because there is evidence of currently diagnosed disabilities, an in-service event, and an indication that the current disabilities may be associated with the in-service event, remand for a VA examination is required. Second, remand is required to attempt to obtain private treatment records. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159(c) (2019). This includes making reasonable efforts to obtain relevant private medical records. 38 C.F.R. § 3.159(c)(1). The examiner in the March 2014 VA examination noted that the Veteran reported treatment for a psychiatric condition at Touro Hospital in 1995, but found that the records were not within the Veteran’s file. Thus, remand is required in order to obtain the outstanding records. The matters are REMANDED for the following action: 1. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant medical records, to include any treatment received at Touro Hospital in 1995. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 2. Contact the appropriate VA Medical Centers and obtain and associate with the claims file all outstanding records of treatment, to include any treatment received by the Veteran for his bilateral eye condition following service. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified, and this should be documented for the record. Required notice must be provided to the Veteran and his or her representative. 3. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of any eye conditions. 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 provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the eye conditions had onset in, or is otherwise related to, active military service, to include the August 1974 eye injury. The examiner must address the Veteran’s assertions regarding the severity of this eye injury from the August 2020 hearing and the August 1974 STRs. 4. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of any diagnosed psychiatric disorders. 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. First, the examiner must provide all current diagnoses of psychiatric disorders. If depression, chronic pain syndrome, and/or bipolar disorder are not diagnosed, the examiner must address the prior diagnoses of record. Second, the examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that each psychiatric disorder had onset in, or is otherwise related to, active military service, to include as due to the in-service motor vehicle accident documented in the October 1974 STRs. Third, the examiner must also provide an opinion whether it is at least as likely as not (50 percent or greater probability) that the psychiatric disorder are caused or aggravated by the service-connected left knee chondromalacia. The examiner must address the Veteran’s lay statements in the August 2020 hearing, the October 1974 STRs, and the March 2014 PTSD VA examination. 5. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claims, and that the consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2019). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable.    K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Ashley Ki 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.