Citation Nr: 21062357 Decision Date: 10/07/21 Archive Date: 10/07/21 DOCKET NO. 17-45 725 DATE: October 7, 2021 ORDER New and material evidence having been received, the claim of entitlement to service connection for a right knee disorder is reopened. New and material evidence having been received, the claim of entitlement to service connection for a left knee disorder is reopened. New and material evidence having been received, the claim of entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is reopened. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is remanded. Entitlement to service connection for a right knee disorder is remanded. Entitlement to service connection for a left knee disorder is remanded. Entitlement to service connection for muscle pain in the right lower extremity is remanded. Entitlement to service connection for muscle pain in the left lower extremity is remanded. Entitlement to service connection for a respiratory disorder, to include chronic fatigue syndrome (CFS), is remanded. FINDINGS OF FACT 1. VA last denied the Veteran's claim for service connection for a right knee disorder in May 2006. The Veteran did not appeal this denial, nor did she submit new and material evidence within one year of the decision. 2. Evidence received since the final May 2006 rating decision is not cumulative or redundant of the evidence of record, does relate to an unestablished fact, and does raise the possibility of substantiating the Veteran's claim of entitlement to service connection for a right knee disorder. 3. VA last denied the Veteran's claim for service connection for a left knee disorder in May 2006. The Veteran did not appeal this denial, nor did she submit new and material evidence within one year of the decision. 4. Evidence received since the final May 2006 rating decision is not cumulative or redundant of the evidence of record, does relate to an unestablished fact, and does raise the possibility of substantiating the Veteran's claim of entitlement to service connection for a left knee disorder. 5. VA last denied the Veteran's claim for service connection for an acquired psychiatric disorder, to include PTSD, in May 2006. The Veteran did not appeal this denial, nor did she submit new and material evidence within one year of the decision. 6. Evidence received since the final May 2006 rating decision is not cumulative or redundant of the evidence of record, does relate to an unestablished fact, and does raise the possibility of substantiating the Veteran's claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD. CONCLUSIONS OF LAW 1. The May 2006 rating decision denying the claim for service connection for a right knee disorder is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.302, 20.1103. 2. The criteria to reopen the claim for service connection for a right knee disorder based on the receipt of new and material evidence have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. The May 2006 rating decision denying the claim for service connection for a left knee disorder is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.302, 20.1103. 4. The criteria to reopen the claim for service connection for a left knee disorder based on the receipt of new and material evidence have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 5. The May 2006 rating decision denying the claim for service connection for an acquired psychiatric disorder, to include PTSD, is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.302, 20.1103. 6. The criteria to reopen the claim for service connection for an acquired psychiatric disorder, to include PTSD, based on the receipt of new and material evidence have been met. 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 March 1988 to March 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2013 rating decision of an Agency of Original Jurisdiction (AOJ) of the Department of Veterans Affairs (VA). Issue 1: Whether VA has received new and material evidence to reopen a claim of service connection for a right knee disorder Issue 2: Whether VA has received new and material evidence to reopen a claim of service connection for a right knee disorder Issue 3: Whether VA has received new and material evidence to reopen a claim of service connection for an acquired psychiatric disorder, to include PTSD New and Material Evidence General Under 38 U.S.C. § 7104(b), the Board has no jurisdiction to consider a claim based on the same factual basis as a previously disallowed claim. King v. Shinseki, 23 Vet. App. 464 (2010); see DiCarlo v. Nicholson, 20 Vet. App. 52, 55 (2006) (holding that res judicata generally applies to VA decisions). However, the finality of a previously disallowed claim can be overcome by the submission of new and material evidence. See 38 U.S.C. § 5108. New evidence means evidence not previously submitted to agency decision makers. Material evidence means evidence that, by itself or when considered with previous evidence, 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 it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Also, the general rule is that judicial interpretations of statutes apply retroactively to cases that are "open for direct review" but not to those that have become final and are being challenged on collateral review via CUE motions. George v. Wilkie, 30 Vet. App. 364, 376 (2019). See also Rivers v. Roadway Express, 511 U.S. 298, 312-13 (1994) ("[j]udicial construction of a statute [or regulation] is an authoritative statement of what the statute [or regulation] meant before as well as after the decision of the case giving rise to that construction"); Jordan v. Nicholson, 401 F.3d 1296, 1298-99 (Fed. Cir. 2005) (a new interpretation of a statute retroactively affects decisions still open on direct review); Threatt v. McDonald, 28 Vet. App. 56, 63 (2016) (noting the "normal principle at this Court that judicial decisions operate retrospectively"). Merits Bilateral Knee Disorder The AOJ last denied the Veteran's claim for service connection for a bilateral knee disorder in May 2006; the Veteran received notification of this decision in May 2006. The Veteran did not appeal this denial, nor did she submit new and material evidence within one year of the decision. Therefore, the May 2006 rating decision became final. At the time of the AOJ's May 2006 denial, the record consisted, as relevant here, of service treatment records and VA treatment records. Subsequently, the Veteran claimed service connection again for a bilateral knee disorder in October 2011. This claim, upon which this appeal is based, overlapped with Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). In Saunders v. Wilkie, the U.S. Court of Appeals for the Federal Circuit determined that "pain is an impairment because it diminishes the body's ability to function, and that pain need not be diagnosed as connected to a current underlying condition to function as an impairment." Id. at 1364. The Federal Circuit went on to explain that "[w]e do not hold that a veteran could demonstrate service connection simply by asserting subjective painto establish a disability, the veteran's pain must amount to a functional impairment. To establish the presence of a disability, a veteran will need to show that her pain reaches the level of a functional impairment of earning capacity." Id. at 1367-68. Saunders, together with an October 2013 VA examination report, provides a new lens through which the Board must view the appeal. Specifically, the Board finds that the Veteran has credibly reported functional impairment in earning capacity, as seen, for example, in an August 2017 lay statement. As such, the Board finds the Veteran's knee pain meets the current disability prong of a direct service connection claim. By extension, since an element of the claim that was previously found lacking, i.e., the current disability requirement, has been met, the Veteran has satisfied the new and material evidence standard required to reopen the claim. Reopening of the Veteran's the claim for service connection for a bilateral knee disorder based on the receipt of new and material evidence is therefore warranted. Shade v. Shinseki, 24 Vet. App. 110 (2011) (holding that the phrase "raises a reasonable possibility of substantiating the claim" in applicable regulation as "enabling rather than precluding reopening"). Merits Acquired Psychiatric Disorder The AOJ last denied the Veteran's claim for service connection for an acquired psychiatric disorder, to include PTSD, in May 2006; the Veteran was notified of this decision in May 2006. The Veteran did not appeal this denial, nor did she submit new and material evidence within one year of the decision. Therefore, the May 2006 rating decision became final. At the time of the AOJ's May 2006 denial, the record consisted, as relevant here, of service treatment records, a stressor statement, and VA treatment records. Subsequently, the Veteran submitted an updated stressor statement in February 2012. This statement, while largely duplicating the prior stressor statement, caused the AOJ to examine the Veteran in August 2013. The revised stressor statement and August 2013 examination report are new. The AOJ construed them as material because they help substantiate the claim, and they relate to a reason VA previously denied her claim. The Board agrees. Reopening of the Veteran's the claim for service connection for an acquired psychiatric disorder, to include PTSD, based on the receipt of new and material evidence is therefore warranted. Shade v. Shinseki, 24 Vet. App. 110 (2011) (holding that the phrase "raises a reasonable possibility of substantiating the claim" in applicable regulation as "enabling rather than precluding reopening"). REASONS FOR REMAND PTSD The Veteran claimed entitlement to service connection for mental and physical fatigue. She contends that upon return from overseas, her life became cumbersome and she has been unable to maintain normal daily living functions. She further relayed that she has severe leg, muscle and joint pain, as well as severe mental and physical handicaps, due to service. The Veteran also contends that she suffers from PTSD as a result of a nervous breakdown in September 1991 at Fort Lewis, Washington; sleeping in foxholes in a war zone without ammunition; and taking unapproved drugs as ordered by her commander. See VA Form 21-526, Veterans Application for Compensation or Pension, received October 2011; VA Form 21-0781, Statement in Support of Claim for PTSD, received February 2012. In August 2013, VA examined the Veteran for this claim. The examiner stated the Veteran did not have a psychiatric disorder, to include PTSD. Moreover, the examiner opined: The veteran does not currently meet full DSM-IV criteria for any mental health diagnosis. She is currently experiencing some problems with sadness related to her mother's recent death, but in my medical opinion these are expectable reactions and do not meet the criteria for mental health diagnosis at this time. Further it appears that veteran has in the past met the criteria for diagnosis of Cocaine Abuse/Dependence, but she has not used in years and no longer meets the criteria for substance abuse disorder. Currently the veteran is functioning well as evidenced by her GAF score of 72. She is working full time as the Director of Support Services at Nursing Home. She reports that she is doing well in her job and denied any problems in her performance or ability to get along with co-workers. Socially, veteran reports that she has been involved in significant relationship for years and that she has friends that are supportive. She also states that she gets along well with her son. She does report that she tends to spend lot of time watching TV but also reports that she enjoys going on vacation when she can. She is not currently involved in mental health treatment or on psychiatric medication. On August 11, 2020, the United States Court of Appeals for Veterans Claims issued Martinez-Bodon v. Wilkie, 32 Vet. App. 393 (2020), which held that although the application of Saunders v. Wilkie, 888 F.3d 1356 (Fed. Cir. 2018), is not limited to pain, a diagnosis that conforms to the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5), is required for compensation for psychiatric disabilities. While there is no evidence of a diagnosis of a psychiatric disorder based on the DSM-IV, the Board finds this inquiry is incomplete. The DSM-5 applies to applications for benefits that, as here, VA received or that were pending before the AOJ on or after August 4, 2014. In contrast, the DSM-5 does not apply to claims that were pending before the Board (i.e., certified for appeal to the Board on or before August 4, 2014), pending before the CAVC, or pending before the United States Court of Appeals for the Federal Circuit on or before August 4, 2014, even if such claims are subsequently remanded to the AOJ. See 80 Fed. Reg. 14, 308 (March 19, 2015). Because VA did not examine the Veteran under the DSM-5, remand is warranted. Bilateral Knee Disorder The Veteran contends she injured both knees during training at Fort Jackson, South Carolina, in 1988, and was put on quarters for several days after attending sick call. She contends she was subsequently seen in sick call several more times during her service but the problem was not rectified. She further stated she has endured knee pain for over 20 years. See Veteran's statement received August 2017. The Veteran's service treatment records contain several notes pertaining to her knees, legs, and ankles. A March 1988 treatment note indicates the Veteran was seen for swollen ankles, pain in the calf to the right thigh, and assessed with overuse syndrome. An April 1988 treatment note shows the Veteran was treated for bilateral ankle and left knee pain in her third week of basic training at Fort Jackson. A September 1990 treatment note reflects left knee pain for one week with locking and cramping. the Board highlights a December 30, 1992, Report of Medical Examination. Section 76, a "Summary of Defects and Diagnoses," includes "Bilateral RPPS," which is retropatellar pain syndrome. This examination was conducted less than three months prior to the Veteran separating from service. As explained above, the Board found that the Veteran has met the current disability requirement for her bilateral knee disorder claim under Saunders. Given this and the in-service treatment for complaints of knee pain, remand is warranted to determine the etiology of this disorder. Bilateral Muscle Pain The Veteran claimed entitlement to service connection for mental and physical fatigue. She contends that upon return from overseas, her life became cumbersome and she has been unable to maintain normal daily living functions. She further relayed that she has severe leg, muscle and joint pain, as well as severe mental and physical handicaps, due to service. See VA Form 21-526, Veterans Application for Compensation or Pension, received October 2011. The AOJ construed these statements as two claims one for CFS, the other for muscle pain. The Board addressed the CFS issue above. For the muscle pain issue, the Board cannot determine if these symptoms are related to the bilateral knee disorder or independent of it. Therefore, the Board will pursue further inquiry of this issue via the knee examination it is ordering. Respiratory Disorder, to include CFS In October 2011, the Veteran claimed disability compensation for "mental and physical fatigue." In her application for benefits, she wrote: Upon return from oversees my life has become cumbersome and have been unable to maintain normal daily living functions have severe leg muscle and joint pain and have severe mental and physical handicaps due to service. The AOJ construed this as a claim for service connection for CFS. It then examined the Veteran on September 4, 2013. The examiner found the Veteran did not then have, nor had she ever had, CFS. Instead, the examiner noted the Veteran: Has concerns regarding her back and knees which are addressed separately[. She also] has concerns about cough, shortness of breath and chest discomfort on exertion which is addressed in respiratory DBQ. There are no unexplained symptoms. In turn, the examiner found, on the Respiratory DBQ, that the Veteran did not then have, nor had she ever had, a respiratory disorder. Moreover, the examiner highlighted the Veteran's "history of cigarette smoking." The AOJ, relying on this examination report, denied the claim. However, the AOJ added VA treatment records to the claims file in July 2020. Two records stand out. First, a September 25, 2013 pulmonary function test, conducted 21 days after her VA compensation examination, shows a VA physician diagnosed the Veteran with "small airway disease" and "possible bronchitis." Second, an October 2, 2013 record show that a "non-VA Care consult" was completed and uploaded into VistA Imaging. The underlying record is not viewable. Given the September 2013 VA examiner's inquiry into a possible respiratory disorder, the Board has expanded the scope of the claim beyond CFS. Additionally, given the VA records above, remand is warranted to attempt to retrieve the "non-VA Care consult" and for a new examination. The matters are REMANDED for the following action: 1. Obtain updated VA treatment records. 2. Attempt to obtain the "non-VA Care consult" and any associated records as noted in the October 2, 2013 VA treatment record contained in the CAPRI file uploaded on July 2, 2020. Arrange for these documents to be made viewable in VBMS and/or added as separate files. The Board reminds the AOJ that the Board does not have access to VistA Imaging, so any relevant records contained in VistA must be copied and uploaded/added to the Veteran's VBMS file. 3. Schedule the Veteran for a VA psychiatric examination to determine the nature and etiology of her claimed acquired psychiatric disorder. The examiner MUST employ the DSM-5 when examining the Veteran. The examiner, after conducting the customary examination, should opine: a) Does the Veteran now have, or has she had at any point since she filed her claim in October 2011, an acquired psychiatric disorder, to include PTSD? If yes, identify all such disorders. b) For any acquired psychiatric disorder diagnosed, is it at least as likely as not (50 percent probability) that the Veteran's acquired psychiatric disorder began during, or was otherwise caused by, military service? Why or why not? The examiner must consider and address the Veteran's February 2012 statement (VA Form 21-0781) concerning her contentions that she suffers from PTSD as a result of a nervous breakdown in September 1991 at Fort Lewis, Washington; sleeping in foxholes in a war zone without ammunition; and taking unapproved drugs as ordered by her commander. 4. Schedule the Veteran for a VA examination to determine the nature and etiology of her bilateral knee disorder. The examiner, after conducting the customary examination, should opine: a) Please identify any knee disability by either (i) diagnosis or (ii) functional impairment. b) Is it at least as likely as not (50 percent probability) that the Veteran's right knee disorder began during, or was otherwise caused by, military service? Why or why not? c) Is it at least as likely as not (50 percent probability) that the Veteran's left knee disorder began during, or was otherwise caused by, military service? Why or why not? d) Is the muscle pain the Veteran has described in her right lower extremity a symptom of her right knee disorder? If yes, why? If no, why not? e) If the muscle pain the Veteran has described in her right lower extremity is NOT a symptom of her right knee disorder, is it at least at likely as not (50 percent probability) that it began during, or was otherwise caused by, military service? Why or why not? f) Is the muscle pain the Veteran has described in her left lower extremity a symptom of her left knee disorder? If yes, why? If no, why not? g) If the muscle pain the Veteran has described in her left lower extremity is NOT a symptom of her left knee disorder, is it at least at likely as not (50 percent probability) that it began during, or was otherwise caused by, military service? Why or why not? In answering these questions, the MUST address the relevance, if any, of the following: (i.) A March 1988 treatment note that indicates the Veteran was seen for swollen ankles, pain in the calf to the right thigh, and assessed with overuse syndrome. (ii.) An April 1988 treatment note that shows the Veteran was treated for bilateral ankle and left knee pain in her third week of basic training at Fort Jackson. (iii.) A September 1990 treatment note reflects left knee pain for one week with locking and cramping. (iv.) A December 30, 1992, Report of Medical Examination, section 76, a "Summary of Defects and Diagnoses," includes "Bilateral RPPS" [retropatellar pain syndrome] and which was noted three months prior to the Veteran separating from service. 5. Schedule the Veteran for a VA examination to determine the nature and etiology of her claimed respiratory disorder, to include CFS. The examiner, after conducting the customary examination, should opine: a) Please identify any respiratory disorder by either (i) diagnosis or (ii) functional impairment. b) For any respiratory disorder, to include CFS, diagnosed, is it at least as likely as not (50 percent probability) that the respiratory disorder, to include CFS, began during, or was otherwise caused by, military service? Why or why not? In answering these questions, the examiner MUST address the September 25, 2013 VA treatment record showing a VA physician diagnosed the Veteran with "small airway disease" and "possible bronchitis." Tiffany Dawson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Sopko, 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.