Citation Nr: 21062723 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 17-42 322 DATE: October 12, 2021 ORDER The request to reopen a previously denied claim for service connection for a left knee disability is denied. The request to reopen a previously denied claim for service connection for a left ankle disability is denied. REMANDED Service connection for posttraumatic stress disorder (PTSD) is remanded. Service connection for an acquired psychiatric disability other than PTSD is remanded. Service connection for a thoracolumbar spine disability, claimed as the back, is remanded. FINDINGS OF FACT 1. The Veteran did not appeal a May 2010 rating decision which denied service connection for a left knee disability, and evidence received since then does not relate to a previously unestablished element of the claim. 2. The Veteran did not appeal a May 2010 rating decision which denied service connection for a left ankle disability, and evidence received since then does not relate to a previously unestablished element of the claim. CONCLUSIONS OF LAW 1. The criteria for reopening a previously denied claim for service connection for a left knee disability have not been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.104 (a), 3.156, 3.160(d), 20.200, 20.302, 20.1103. 2. The criteria for reopening a previously denied claim for service connection for a left ankle disability have not been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.104 (a), 3.156, 3.160(d), 20.200, 20.302, 20.1103. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the U.S. Army from June 1977 to December 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2016 rating decision. It was previously remanded by the Board in March 2019. The Veteran was previously denied service connection for a psychiatric disability other than PTSD. The February 2016 rating decision on appeal adjudicated the issue of whether new and material evidence had been received to reopen that claim. However, since the prior denial, additional service records were associated with the file which relate to that claim. Therefore, reconsideration of that claim on the merits, rather than reopening, is the appropriate process. Previously Denied Claims To reopen a previously and finally disallowed claim, new and material evidence must be submitted by the claimant or secured by VA with respect to that claim since the last final denial, regardless of the basis for that denial. VA defines "new and material evidence" as follows. "New evidence" means evidence not previously submitted to agency decision makers, and "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. 38 C.F.R. § 3.156(a). To warrant reopening, the new evidence must neither be 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.; see Shade v. Shinseki, 24 Vet. App. 110, 117 (2010) (holding that there is a "low threshold" for reopening). The credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Left knee disability Historically, the Veteran was denied service connection for a left knee disability in a May 2010 rating decision. The basis of that denial was that the evidence did not show a relevant in-service incurrence of a left knee condition. The Veteran did not appeal that decision and it became final. Since the prior denial, additional evidence has been received. The Veteran submitted a July 2017 statement that he sprained his knee during a parachute jump in service but did not report it. Recent VA treatment records also show complaints of knee pain. Unfortunately, this evidence is not new. At the time of the prior denial, the Veteran had undergone a VA examination and reported injuring his knee during a parachute jump. He was also diagnosed with patellofemoral syndrome. In other words, a currently diagnosed knee disability and the Veteran's assertion of an in-service injury were already considered when the claim was previously denied, and the Veteran's statement and recent treatment records are only duplicative of that evidence. Therefore, new and material evidence has not been received and the claim is not reopened. Left ankle disability Historically, the Veteran was denied service connection for a left ankle disability in a May 2010 rating decision. The basis of that denial was that the evidence did not show connection between the Veteran's diagnosed ankle strain and a twisted ankle from service in August 1977. The Veteran did not appeal that decision and it became final. Since the prior denial, additional evidence has been received. The Veteran submitted a July 2017 statement that he injured his ankle during service, and that the doctors did not provide any significant treatment at the time. Unfortunately, this evidence is not new. At the time of the prior denial, the evidence has already established an in-service ankle injury. The Veteran's July 2017 statement is only duplicative of that evidence. Therefore, new and material evidence has not been received and the claim is not reopened. REASONS FOR REMAND Service connection for PTSD Service connection for an acquired psychiatric disability other than PTSD The Veteran contends that he has PTSD and other psychiatric conditions due to service, including witnessing an explosion which killed another soldier. This stressor event has been verified. The Veteran has been diagnosed with PTSD and bipolar disorder. In a February 2016 opinion, a VA examiner stated that these conditions were less likely than not due to service. During the examination, the Veteran reported a history of his father sexually abusing his sister, and being molested himself by another man. He also reported a history of a suicide attempt at age 17. The examiner stated that the Veteran reported childhood trauma and the onset of symptoms in childhood consistent with PTSD and bipolar disorder. Unfortunately, this opinion is not adequate for two reasons. First, it does not comment on the link, if any, of the verified in-service stressor and the currently diagnosed conditions. Second, in stating that the onset of symptoms occurred in childhood, the opinion suggests that the conditions existed prior to service. Because the Veteran's enlistment examination was normal, and evidence of any preexisting psychiatric disability is based solely on his statements, the presumption of his sound condition at enlistment is not rebutted because evidence does not clearly and unmistakably show that a psychiatric disability existed prior to service. Considering these deficiencies, a supplemental opinion is necessary. Service connection for a back disability Service treatment records show the Veteran was seen for back pain in February 1985. His recent VA treatment records show complaints of back pain. He should be afforded a VA examination to determine whether he has a current disability that is etiologically related to back pain documented in service. The matters are REMANDED for the following action: 1. Obtain a supplemental opinion from a qualified examiner to determine whether the Veteran's diagnosed PTSD and bipolar disorder are etiologically related to service. The examiner should review the claims file, including the February 2016 VA examination report. The examiner must provide an opinion as to whether it is at least as likely as not that the Veteran's diagnosed PTSD and bipolar disorder are etiologically related to service, including his verified military stressor of seeing another soldier killed by an explosive. In forming this opinion, the examiner should consider the Veteran's February 2016 examination statements regarding childhood trauma, but he/she must assume that no psychiatric disability existed prior to service. If the requested opinion cannot be provided without an examination, one should be scheduled. 2. Schedule the Veteran for a VA examination for his thoracolumbar spine disability. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: Is any current thoracolumbar spine disability at least as likely as not related to service, including back pain documented in February 1985? Provide a rationale to support the opinion(s). In providing the requested opinion, consider the Veteran's description of his in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? JOHN Z. JONES Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Shamil Patel, 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.