Citation Nr: 21070768 Decision Date: 11/26/21 Archive Date: 11/26/21 DOCKET NO. 17-22 740 DATE: November 26, 2021 ORDER The previously denied claim of entitlement to service connection for anxiety is reconsidered. Entitlement to service connection for posttraumatic stress disorder (PTSD) is granted. REMANDED Entitlement to an initial compensable evaluation for right hip limitation of flexion is remanded. Entitlement to an initial compensable evaluation for left hip limitation of flexion is remanded. Entitlement to an evaluation higher than 10 percent for left knee patellofemoral pain syndrome with arthritis is remanded. Entitlement to an evaluation higher than 10 percent for right knee patellofemoral pain syndrome with arthritis is remanded. FINDINGS OF FACT 1. A November 2001 rating decision denied entitlement to service connection for anxiety, and the Veteran did not perfect an appeal after issuance of a March 2004 statement of the case. In March 2015, VA received new and relevant service department records that existed at the time of the prior denial. 2. Currently diagnosed PTSD is etiologically related to confirmed in-service stressors. CONCLUSIONS OF LAW 1. The criteria for reconsideration of the previously denied claim of entitlement to service connection for anxiety have been met. 38 U.S.C. §§ 5107, 5108 (2012); 38 C.F.R. § 3.156. 2. The criteria for entitlement to service connection for PTSD have been met. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. §§ 3.303, 3.304 (f), 4.125(a) REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Navy from January 1996 to June 2001. This matter comes to the Board of Veterans' Appeals (Board) on appeal from June 2015, July 2015 and November 2017 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In July 2021 the Veteran testified at a Board hearing before the undersigned Veterans Law Judge and a transcript of the proceeding is of record. The Veteran has filed claims for service connection for anxiety and PTSD, and the record reflects multiple psychiatric diagnoses. At the 2021 hearing, the Veteran explained that he did not desire to withdraw the anxiety claim and proceed with a new PTSD claim, rather he wanted those claims combined. When a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Thus, the Board has broadly construed the Veteran's claims as reflected on the title page of this document. VA obtained a psychiatric examination in October 2020, but no supplemental statement of the case was issued. The claim of entitlement to service connection for PTSD is granted herein, and the lack of RO review of the new evidence in the first instance does not prejudice the Veteran. New and Material Evidence Service Connection 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. 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. 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). A claim is not reconsidered, however, where VA could not have obtained the records when it initially decided the claim because the records did not exist at that time, or because the claimant failed to provide sufficient information to identify and obtain the records from the respective service department, or any other official source. 38 C.F.R. § 3.156(c)(2). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, 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)). Service connection for PTSD specifically requires medical evidence establishing a diagnosis of the disability in accordance with the DSM-V, credible supporting evidence that the claimed in-service stressor actually occurred, and a link, established by medical evidence, between the current symptomatology and the claimed in-service stressor. 38 C.F.R. §§ 3.304 (f), 4.125(a). 1. The previously denied claim of entitlement to service connection for anxiety is reconsidered. In a November 2001 rating decision, the RO denied service connection for anxiety because the evidence did not show the disability was clinically diagnosed. The Veteran did appeal that decision, and new and relevant service department records were received within one year. The new evidence, included the service department records, were considered in a March 2004 statement of the case (SOC) that continued to deny entitlement to service connection for anxiety. The Veteran did not perfect an appeal to the November 2001 rating decision after issuance of the March 2004 SOC. The November 2001 rating decision with March 2004 SOC is thus final based on the evidence then of record. See 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. In March 2015, VA received additional military personnel records that were relevant to verifying stressors reported by the Veteran in later April 2020 correspondence. Those records also contained additional documents related to the Veteran's nonjudicial punishment related to inappropriate behavior. Those records existed at the time of the prior denial and VA was on notice of their existence. As new and relevant service department records were received after the November 2001 rating decision, the claim is reconsidered. 2. Entitlement to service connection for PTSD is granted. The Veteran alleges that an anxiety disorder began during service and has existed since that time. See November 2001 correspondence; see July 2021 hearing testimony. He attributes this disorder to two in-service traumatic events. See April 2020 statements in support of claim. First, the Board finds that there is a current disability. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). VA treatment records show diagnoses of adjustment disorder, rule out generalized anxiety disorder; major depressive disorder, narcissistic personality disorder, intermittent explosive disorder, and unspecified trauma and stressor related disorder. An October 2020 VA examiner reviewed all relevant medical evidence and assessed the most appropriate diagnosis to be PTSD according to the DSM-5. At the July 2021 hearing, the Veteran explained that his symptoms were attributable to PTSD and had been mischaracterized or misdiagnosed previously. Overall, the evidence shows a current diagnosis of PTSD during the relevant appeal period. Second, the Board finds that there was an in-service event, injury or disease. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). The Veteran has described two incidents: 1) where a friend of his was killed by a hit and run driver in Panama City, Florida in 1998; and 2) when a fellow-service member he knew was involved in a murder-suicide near Pearl Harbor, Hawaii in 1999. In April 2020, the Veteran submitted two news articles detailing the events as he reported them and corroborating his testimony. The Veteran's personnel records also show he was stationed at the relevant locations around the dates of both events. April 2001 STRs show the Veteran was diagnosed with a personality disorder not otherwise specified during active duty, and the April 2001 separation examination notes a history of depression and adjustment and stressors [illegible]. The SPRs show consequences for instances of inappropriate behavior towards women during the Veteran's period of service that was a factor in his separation from service. See August 2000 Nonjudicial punishment report. There is credible and confirmed evidence of the in-service stressors the STRs indicate psychiatric symptoms in service. Third, the Board finds that the evidence of record does support a finding that the currently diagnosed PTSD is related to active service. VA obtained a medical examination and opinion in October 2020. That examiner interviewed the Veteran and the report contains detailed notes. The examiner also cited review of the relevant evidence, including the service department records. Ultimately, the examiner concluded that the most appropriate psychiatric diagnosis was PTSD, and that PTSD was etiologically related to the reported in-service stressors. The 2020 examiner found that the Veteran met the diagnostic criteria for PTSD based on learning of the traumatic events that occurred to a close friend, or experiencing repeated or extreme exposure to aversive details of the traumatic events. The examiner explained that the Veteran had no mental health issues prior to service. The examiner further noted the Veteran received positive personnel feedback near entrance, but he was determined to have conduct unbecoming of an officer later in service. The 2020 opinion is adequate and afforded significant probative weight. The prior September 2001 VA examiner only diagnosed suspected mental disorder, and noted the Veteran refused to provide details of his symptoms and problems. There is otherwise no medical opinion that weights against the claim. Overall, the preponderance of the evidence shows the currently diagnosed PTSD is etiologically related to the Veteran's period of service and service-connection is granted. REASONS FOR REMAND 1. Entitlement to an initial compensable evaluation for right hip limitation of flexion is remanded. 2. Entitlement to an initial compensable evaluation for left hip limitation of flexion is remanded. 3. Entitlement to an evaluation higher than 10 percent for service-connected left knee patellofemoral pain syndrome with arthritis is remanded. 4. Entitlement to an evaluation higher than 10 percent for right knee patellofemoral pain syndrome with arthritis is remanded. All remaining issues are remanded to obtain a new VA examination to assess the current severity of the Veteran's bilateral hip and knee conditions. A new examination is appropriate when there is an assertion of an increase in severity since the last examination. 38 C.F.R. § 3.159; Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). In this case, at the July 2021 hearing the Veteran testified that his hip and knee conditions had worsened since he was last examined in 2017. Thus, remand for new examinations is required. Also, on remand the examiner is requested to provide an adequate opinion regarding the progression of the service-connected conditions. A September 2017 VA examiner stated that right hip degenerative joint disease was not caused or aggravated by, or a progression of, the service connected right hip condition. In another September 2017 examination report, that same examiner found that the meniscal tear of the left knee was not etiologically related to or a progression of the service-connected left knee condition. No rationale was provided for either conclusion, therefore the conclusions are inadequate and remand for clarification is required. Additionally, at the September 2017 knee and hip examinations, the Veteran testified that during flares the affected joints were immobile or unable to bend. On remand, the examiner should clarify whether during flares the severity of the joint symptoms were similar to functional ankylosis despite the lack of a true diagnosis of ankylosis. See Chavis v. McDonough, 34 Vet. App. 1 (2021) (finding that ankylosis can also mean "functional equivalent" of ankylosis). Last, the 2017 examiner found that they were unable to describe the additional degree of functional impairment during flares or with repeated use over time in terms of range of motion without resorting to mere speculation. In support of that opinion, the examiner stated that there was no conceptual or empirical basis for making such a determination without directly observing the Veteran under flared conditions or after repetitive use over time. In increased evaluation claims, a VA examination report is not adequate without an explanation for an examiner's failure to evaluate the functional effects of a flare-up. Sharp v. Shulkin, 29 Vet. App. 26 (2017). The Board may accept a VA examiner's statement that he or she cannot offer an opinion in that regard without resorting to speculation, but only after determining that this is not based on the absence of procurable information or on a particular examiner's shortcomings or general aversion to offering an opinion on issues not directly observed. For example, a VA examination report is not adequate when the VA examiner failed to elicit relevant information as to the veteran's flares or ask him to describe the additional functional loss, if any, he suffered during flares and then estimate the veteran's functional loss due to flares based on all the evidence of record- including the veteran's lay information-or explain why she or he could not do so. Sharp, 29 Vet. App. at 34-35. Here, the 2017 examiner failed to adequately support their conclusion in light of the available lay testimony and remand is required. The Board notes the Veteran desires a 20 percent evaluation for arthritis of 2 major jointsthe knees. He appears to seek a 20 percent evaluation under DC 5003 for each knee, however DC 5003 provides for a 20 percent evaluation for degenerative arthritis other than posttraumatic with x-ray evidence involving 2 major joints and occasional incapacitating episodes. DC 5003 contemplates both knees and the Veteran is already in receipt of 10 percent ratings for each knee, with the bilateral factor applied, thus amounting to the same 20 percent evaluation for the bilateral knees that would be available under DC 5003. DC 5003 does not offer a greater benefit than that which is already in effect. The matters are REMANDED for the following action: 1. Provide the Veteran with an appropriate examination to determine the severity of the service-connected bilateral hip disorder. 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 utilize the appropriate Disability Benefits Questionnaire. (a.) Describe any functional limitation due to pain, weakened movement, excess fatigability, pain with use, or incoordination. Additional limitation of motion during flare-ups and following repetitive use due to limited motion, excess motion, fatigability, weakened motion, incoordination, or painful motion must also be noted. If the Veteran describes flare-ups of pain, the examiner must offer an opinion as to whether there would be additional limits on functional ability during flare-ups. All losses of function due to problems such as pain should be equated to additional degrees of limitation of flexion and extension beyond that shown clinically. Should the examiner state that he or she is unable to offer such an opinion without resorting to speculation based on the fact that the examination was not performed during a flare, the examiner is directed to do all that reasonably can be done to become informed before such a conclusion, to include ascertaining adequate information-i.e., frequency, duration, characteristics, severity, or functional loss-regarding his flares by alternative means. (b.) The examiner is also asked to indicate the point during range of motion testing that motion is limited by pain. The examiner must test the range of motion and pain in active motion, passive motion, weight-bearing, and non-weight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary, he or she should clearly explain why that is so. (c.) The examiner is requested to comment on whether any symptoms of joint immobility amount to the equivalent of functional ankylosis despite the lack of a true diagnosis of ankylosis. (d.) The examiner is requested to clarify whether it is at least as likely as not that the diagnosed right hip is a progression of the service-connected right hip disorder. The examiner must provide a rationale for any opinion provided. 2. Provide the Veteran with an appropriate examination to determine the severity of the service-connected bilateral knee 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. The examiner must utilize the appropriate Disability Benefits Questionnaire. (a.) Describe any functional limitation due to pain, weakened movement, excess fatigability, pain with use, or incoordination. Additional limitation of motion during flare-ups and following repetitive use due to limited motion, excess motion, fatigability, weakened motion, incoordination, or painful motion must also be noted. If the Veteran describes flare-ups of pain, the examiner must offer an opinion as to whether there would be additional limits on functional ability during flare-ups. All losses of function due to problems such as pain should be equated to additional degrees of limitation of flexion and extension beyond that shown clinically. Should the examiner state that he or she is unable to offer such an opinion without resorting to speculation based on the fact that the examination was not performed during a flare, the examiner is directed to do all that reasonably can be done to become informed before such a conclusion, to include ascertaining adequate information-i.e., frequency, duration, characteristics, severity, or functional loss-regarding his flares by alternative means. (b.) The examiner is also asked to indicate the point during range of motion testing that motion is limited by pain. The examiner must test the range of motion and pain in active motion, passive motion, weight-bearing, and non-weight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary, he or she should clearly explain why that is so. (c.) The examiner is requested to comment on whether any symptoms of joint immobility amount to the equivalent of functional ankylosis despite the lack of a true diagnosis of ankylosis. (d.) The examiner is requested to clarify whether it is at least as likely as not that the diagnosed left knee meniscal tear is a progression of the service-connected left knee disorder. The examiner must provide a rationale for any opinion provided. LAURA E. COLLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Smith, 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.