Citation Nr: 21004295 Decision Date: 01/26/21 Archive Date: 01/26/21 DOCKET NO. 15-38 948 DATE: January 26, 2021 ORDER New and material evidence having been received, the application to reopen the claim for service connection for a right ankle disorder is granted. REMANDED Entitlement to service connection for an acquired psychiatric disorder is remanded. Entitlement to service connection for a right ankle disorder is remanded. FINDINGS OF FACT 1. In a final rating decision issued in April 2011, the Agency of Original Jurisdiction (AOJ) denied service connection for a right ankle disorder. 2. Evidence added to the record since the final April 2011 denial is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the Veteran’s claim of entitlement to service connection for a right ankle disorder. CONCLUSIONS OF LAW 1. The April 2011 rating decision that denied service connection for a right ankle disorder is final. 38 U.S.C. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2010). 2. New and material evidence has been received to reopen the claim of entitlement to service connection for a right ankle disorder. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1976 to July 1979. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In June 2018, the Veteran and his spouse testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In October 2018, the Board remanded the case for additional development and it now returns for further appellate review. 1. Whether new and material evidence has been received in order to reopen the claim of entitlement to service connection for a right ankle disorder. By way of background, VA received the Veteran’s original claim for service connection for a right ankle disorder in November 2010. Thereafter, in an April 2011 rating decision, the AOJ considered the Veteran’s service treatment records, and found that such were negative for treatment or a diagnosis referable to a right ankle disorder. Furthermore, there were no post-service treatment records demonstrating treatment for a right ankle disorder immediately following the Veteran’s discharge to the present time. Consequently, in the absence of current medical evidence demonstrating a right ankle disorder related to military service, the AOJ denied service connection for such disorder. Later that month, the Veteran was advised of the decision and of his appellate rights, but he did not enter a notice of disagreement with such decision. Further, no new and material evidence was physically or constructively associated with the record within one year of the issuance of such decision and no additional relevant service department records have been received. In this regard, the Board notes that the Veteran’s service personnel records were associated with the file in July 2013 and January 2018. However, such records are irrelevant as they do not address his claimed right ankle disorder. Therefore, the April 2011 decision is final. 38 U.S.C. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2010). Generally, a claim which has been denied in an unappealed Board decision or an unappealed AOJ decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence means existing evidence not previously submitted to agency decisionmakers. 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). New evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion. Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). As noted previously, the April 2011 rating decision denied service connection for a right ankle disorder based on a lack of current medical evidence demonstrating such a disorder related to military service. Since such rating decision, VA treatment records reflecting a current right ankle disorder, diagnosed as post-traumatic arthritis with a history of an open reduction and internal fixation (ORIF) in 2007, have been received. Additionally, a September 2013 VA treatment record reflects the Veteran’s report that he originally injured his right ankle during his military service, which never was properly treated and continued to give out over the years. Furthermore, at his June 2018 Board hearing, he testified that such injury occurred when he fell off a running board after a tank explosion that resulted in the death of a Sergeant [REDACTED] at Fort Hood, Texas, in approximately 1977 or 1978. In this regard, the Board notes that, in accordance with the Board’s October 2018 remand, the Joint Services Records Research Center (JSRRC) determined that a Staff Sergeant [REDACTED] was killed by an explosion that occurred in September 1978 at Fort Hood while he welding a crack in a fuel tank mounted on the rear of an M60A2 Tank, as reflected in a response received in December 2019. Thus, as the Veteran’s VA treatment records confirm a current right ankle disorder, and his reports of his in-service injury to a right ankle are considered credible for the purpose of reopening his claim, the Board finds that the evidence added to the record since the final April 2011 denial is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the Veteran’s claim of entitlement to service connection for a right ankle disorder. Thus, as new and material evidence has been received, the Veteran’s claim for service connection for a right ankle disorder is reopened. REASONS FOR REMAND 2. Entitlement to service connection for an acquired psychiatric disorder. As noted in the October 2018 remand, the Veteran alleges that he developed an acquired psychiatric disorder, i.e., PTSD, as a result of military sexual trauma (MST) that occurred in July 1976 while in boot camp and/or due to witnessing a tank explosion that resulted in the death of a Sergeant [REDACTED] at Fort Hood, Texas, in approximately 1977 or 1978. Thereafter, JSRRC determined that a Staff Sergeant [REDACTED] was killed by an explosion that occurred in September 1978 at Fort Hood while he welding a crack in a fuel tank mounted on the rear of an M60A2 Tank, as reflected in a response received in December 2019. Thus, the AOJ found that such stressor had been verified. However, while the April 2018 and September 2020 VA examiners found that the Veteran’s alleged MST and witnessing the death of Staff Sergeant [REDACTED] as a result of a tank explosion were sufficient stressors to support a diagnosis of PTSD, respectively, their examinations failed to reveal a diagnosis of an acquired psychiatric disorder, to include PTSD. In this regard, the former examiner only found a diagnosis of borderline personality disorder while the latter examiner determined that the Veteran’s reported symptoms fell below levels of clinical significance. However, the remainder of the evidence of record reflects diagnoses of acquired psychiatric disorders of schizoaffective disorder, chronic depression, panic disorder, and PTSD. Thus, the Board finds that a remand is necessary in order to obtain an addendum opinion reconciling the VA examiners’ determinations that the Veteran does not have a diagnosis of an acquired psychiatric disorder with the remainder of the evidence of record and, if there is such a diagnosis, whether such is related to his military service. 3. Entitlement to service connection for a right ankle disorder. As noted previously, while the Veteran’s service treatment records are negative for any complaints, treatment, or diagnosis of a right ankle disorder, he has reported that he injured it when he fell off a running board after a tank explosion that killed Staff Sergeant [REDACTED], whose death in such manner has been verified. Furthermore, his post-service VA treatment records reflect a current right ankle disorder, diagnosed as post-traumatic arthritis with a history of an ORIF in 2007, as well as his report that he originally injured his right ankle during his military service, which never was properly treated and continued to give out over the years. Thus, the Board finds that a remand is necessary in order to afford the Veteran a VA examination so as to determine the nature and etiology of his right ankle disorder. The matters are REMANDED for the following action: 1. Return the record, to include a copy of this remand, to the VA examiner who conducted the September 2020 VA psychiatric examination, or a suitable substitute if she is unavailable. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion. Following a review of the record, the examiner should address the below inquiries: (A) Reconcile the determinations rendered by the April 2018 and September 2020 VA examiners that the Veteran does not meet the DSM-5 criteria for a diagnosis of PTSD or any other acquired psychiatric disorder with the remainder of the evidence of record, to include VA treatment records and June 2018 and March 2019 letters from VA treatment providers, that reflect diagnoses of schizoaffective disorder, chronic depression, panic disorder, and PTSD. If the examiner finds that the aforementioned diagnoses are invalid, he or she should provide the basis for their opinion. (B) If a diagnosis of PTSD is found to be valid at any point proximate to July 2013, even if asymptomatic or resolved, the examiner should offer an opinion as to whether such is at least as likely as not (i.e., a 50 percent or greater probability) the result of (1) the Veteran witnessing Staff Sergeant [REDACTED] was killed by an explosion that occurred in September 1978 at Fort Hood while he welding a crack in a fuel tank mounted on the rear of an M60A2 Tank, or (2) his report of MST that occurred in July 1976 while in boot camp. With regard to the latter stressor, the examiner should identify any markers, to include behavior changes, that support such a diagnosis based on personal assault. (C) If a diagnosis of an acquired psychiatric disorder other than PTSD is found to be valid at any point proximate to July 2013, even if asymptomatic or resolved, the examiner should offer an opinion as to whether such is at least as likely as not (i.e., a 50 percent or greater probability) that such had its onset in, or is otherwise related to, his military service. A rationale for any opinion offered should be provided. 2. Afford the Veteran an appropriate VA examination so as to determine the nature and etiology of his claimed right ankle disorder. The record, to include a copy of this Remand, must be made available to and be reviewed by the examiner, and all indicated tests should be conducted. Thereafter, the examiner should address the following inquiries: (A) Identify all current right ankle disorders that have been present at any time proximate to July 2013, even if such is asymptomatic or resolved, to include post-traumatic arthritis with a history of an ORIF in 2007. (B) For each diagnosed right ankle disorder, offer an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that such disorder had its onset in, or is otherwise related to, his military service, to include his report of an injury when he fell off a running board after a tank explosion that killed Staff Sergeant [REDACTED], whose death in such manner has been verified. In offering such opinion, the examiner should consider the Veteran’s report that he originally injured his right ankle during his military service, which never was properly treated and continued to give out over the years, and VA treatment records reflecting a right ankle fracture in approximately January 2000. The examiner is advised that the sole basis for a negative opinion may not be the lack of evidence of a right ankle disorder in the Veteran’s service treatment records or a lack of medical records demonstrating a continuity of care after service. A rationale for any opinion offered should be provided. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Breckenridge, 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.