Citation Nr: 21074234 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 18-05 290 DATE: December 14, 2021 ORDER New and material evidence has been received and the claim to reopen a claim for service connection for an acquired psychiatric disability is granted. New and material evidence has been received and the claim to reopen a claim for service connection for a left hip disability is granted. REMANDED Entitlement to a rating in excess of 10 percent for a left knee disability is remanded. Entitlement to service connection for an acquired psychiatric disability is remanded. Entitlement to service connection for a left hip disability is remanded. Entitlement to service connection for prostate cancer is remanded. FINDINGS OF FACT 1. In a May 2005 rating decision, the Department of Veterans Affairs (VA) Regional Office (RO) denied service connection for posttraumatic stress disorder (PTSD); the Veteran did not appeal the decision and new and material evidence was not received within the one-year appeal period. 2. In a February 2009 rating decision, the RO denied service connection for bipolar disorder; the Veteran did not appeal the decision and new and material evidence was not received within the one-year appeal period. 3. In a November 2011 rating decision, the Department of Veterans Affairs (VA) Regional Office (RO) denied reopening service connection for PTSD; the Veteran did not appeal the decision and new and material evidence was not received within the one-year appeal period. 4. Evidence associated with the record since the November 2011 decision relates to unestablished facts and raises a reasonable possibility of substantiating the claim of entitlement to service connection for an acquired psychiatric disorder to include PTSD and bipolar disorder. 5. In a February 2009 rating decision, the Department of Veterans Affairs (VA) Regional Office (RO) denied service connection for a left hip disability; the Veteran did not appeal the decision and new and material evidence was not received within the one-year appeal period. 6. Evidence associated with the record since the February 2009 decision relates to unestablished facts and raises a reasonable possibility of substantiating the claim of entitlement to service connection for a left hip disability. CONCLUSIONS OF LAW 1. The criteria for reopening the previously denied claim for service connection for an acquired psychiatric disability have been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a). 2. The criteria for reopening the previously denied claim for service connection for a left hip disability have been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1975 to January 1978. This matter is before the Board of Veterans' Appeals (Board) on appeal of an April 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In August 2021, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is in the record. Because the evidence indicates that the Veteran may have different conditions or diagnoses for ¬¬¬his claims, particularly the psychiatric claim, the Board is expanding the scope of the claims to encompass any diagnosis raised by the record. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108. 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(a). The credibility of the evidence is presumed for purposes of reopening the claim. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for reopening is low. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). The Board has jurisdictional responsibility to consider whether it is proper for a claim to be reopened, and what the RO determined in this regard is irrelevant. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). 1. Whether new and material evidence has been received to reopen a clam for service connection for an acquired psychiatric disability The RO denied the Veteran's claim of service connection for PTSD in a May 2005 rating decision, finding no evidence of a verifiable stressor. See 38 C.F.R. § 3.304 (f). The Veteran was provided notice of this decision and his appellate rights but failed to perfect an appeal of the decision or submit new and material evidence within one year of the decision. Therefore, the decision is final. See 38 C.F.R. §§ 3.156, 20.302, 20.1103 (2004). The RO denied the Veteran's claim of service connection for another psychiatric disability, bipolar disorder, in a February 2009 rating decision, finding that service treatment records did not demonstrate a diagnosis or treatment for bipolar disorder. The Veteran was provided notice of this decision and his appellate rights but did not appeal the decision or submit new and material evidence within one year of the decision. Therefore, the decision is final. See 38 C.F.R. §§ 3.156, 20.302, 20.1103 (2008). The RO did not reopen the Veteran's claim of service connection for PTSD in a November 2011 rating decision, finding that he had not submitted new and material evidence to reopen the claim. The Veteran was provided notice of this decision and his appellate rights but did not appeal the decision or submit new and material evidence within one year of the decision. Therefore, the decision is final. See 38 C.F.R. §§ 3.156, 20.302, 20.1103 (2011). The evidence received since the November 2011 rating decision includes evidence that is both new and material to the claim. See 38 C.F.R. § 3.156. For example, the Veteran reported in a December 2006 VA examination that while training in the Philippines, a helicopter crashed into a nearby mountain and the Veteran's unit helped secure the crash site area. In January 2019, VA received an October 1977 news article reporting that a helicopter crashed in the Philippines during a joint Navy- Marine exercise. The Veteran also reported that a mortar misfired near him and he suffered ear damage in the form of a ruptured tympanic membrane (commonly called the eardrum). Service treatment records from March 1977 shows treatment for a bleeding right ear. The diagnosis was a probable perforated tympanic membrane. This new evidence addresses the reason for the previous denial; that is, incidents in service that may have caused an acquired psychiatric disorder such as PTSD, bipolar disorder, or other psychiatric diagnoses of record such as schizoaffective disorder and anxiety disorder NOS and raises a reasonable possibility of substantiating the claim. The credibility of this evidence is presumed for purposes of reopening the claim. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Accordingly, the claim is reopened and will be considered on the merits. Further development, however, is required and discussed below in the REMAND. 2. Whether new and material evidence has been received to reopen a claim for service connection for a left hip disability The RO denied the Veteran's claim of service connection for a left hip disability in a February 2009 rating decision, finding that the Veteran did not have a currently diagnosed left hip disability. The Veteran was provided notice of this decision and his appellate rights but did not appeal the decision or submit new and material evidence within one year of the decision. Therefore, the decision is final. See 38 C.F.R. §§ 3.156, 20.302, 20.1103 (2008). The evidence received since the February 2009 rating decision includes evidence that is both new and material to the claim. See 38 C.F.R. § 3.156. For example, a March 2013 X-ray demonstrated mild left hip osteoarthritis. Furthermore, since the February 2009 rating decision, in Saunders v. Wilkie, 886 F.3d 1356, 1367-69 (Fed. Cir. 2018), the Federal Circuit held that "pain alone, without an accompanying diagnosis of a present disease, can qualify as a disability" if it "reaches the level of a functional impairment of earning capacity." The Veteran asserts the left hip disability is caused or aggravated by his service- connected left knee disability. This new evidence addresses the reason for the previous denial; that is, a current disability and a nexus to service, and raises a reasonable possibility of substantiating the claim. The credibility of this evidence is presumed for purposes of reopening the claim. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Accordingly, the claim is reopened and will be considered on the merits. Further development, however, is required and discussed below in the REMAND. REASONS FOR REMAND 3. Entitlement to a rating in excess of 10 percent for a left knee disability is remanded. The Veteran is service connected for left knee degenerative joint disease. He received VA examinations in August 2014 and December 2018. Bothe VA examiners stated the Veteran has never has a history involving the left knee meniscus. A January 2007 MRI, however, demonstrated a nondisplaced tear of the left medial meniscus. A Veteran may be entitled to separate ratings for separate knee disabilities, if appropriate. Lyles v. Shulkin, 29 Vet. App. 107 (2017) (manifestation of a disability has not been compensated by an assigned evaluation if the manifestation is "distinct and separate" from the manifestations that form the basis of the assigned evaluation). Accordingly, a new VA examination is required to discuss whether the Veteran has a left knee meniscus disability in addition to the degenerative joint disease. The new VA examination ensures the Board makes an informed decision as to the appropriate rating or ratings that may be assigned to the Veteran's left knee. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. To the extent relevant, the examination report should discuss the left knee under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. Before the examination occurs, ongoing medical records should be obtained. 4. Entitlement to service connection for an acquired psychiatric disability is remanded. Now that the claim for service connection for an acquired psychiatric disorder is reopened, the Board has determined further development is required. First, although there now appears to be corroboration of the Veteran's reported stressors of the helicopter crash in October 1977 and a misfired mortar round, the Veteran testified that his main stressor occurred while on patrol in the Philippines, his squad/platoon came across dead bodies with parts of the bodies cut off. The RO has obtained the Veteran's unit histories from the United States Marine Corps, but the Unit History only covers what occurred generally such as where the unit was located and why, e.g., conducting training exercises. It does not cover specific events that may have occurred such as finding the dead bodies or injuries to service members. VA will make as many requests as are necessary to obtain relevant records from a Federal department or agency unless VA concludes that the records sought do not exist or that further efforts to obtain those records would be futile. 38 C.F.R. § 3.159 (c)(2). Therefore, the Board has determined that upon remand, another attempt should be made to verify the Veteran's reported stressors by requesting documents that cover specific incidents such as the mortar misfire or finding dead bodies while on patrol. This includes such documents such as morning reports, investigative reports, lessons learned, etc. 5. Entitlement to service connection for a left hip disability is remanded. The Veteran asserts he has a left hip disability caused or aggravated by his left knee disability. A February 2009 VA examiner concluded the Veteran did not have a left hip disability. As noted above, the Veteran has now been diagnosed with left hip osteoarthritis. Therefore, the Veteran should receive a new VA examination with an opinion whether any left hip disability is related to service or caused or aggravated by the Veteran's left knee disability. See 38 U.S.C.A. § 5103A (d) 6. Entitlement to service connection for prostate cancer is remanded. A June 2006 biopsy revealed the Veteran had adenocarcinoma, i.e., prostate cancer. VAMC records demonstrated the Veteran received treatment at the University of Chicago Hospital. The treatment records have not been associated with the file. The Board has determined that the records are relevant and there is a reasonable possibility that the records could help substantiate the claim. See Golz v. Shinseki, 590 F.3d 1317, 1322 (Fed. Cir. 2010) (discussing records from the Social Security Administration). Therefore, on remand, the prostate cancer treatment records should be associated with the file. The Veteran asserts the prostate cancer resulted from drinking contaminated water during his service at Camp Lejeune. The Board notes prostate cancer is not one of the diseases presumptively caused by the contaminated water at Camp Lejeune between August 1953 and December 1987, but the Veteran may still establish service connection with proof of direct causation. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Therefore, the Board has also determined that upon remand a VA examination is needed to address whether the Veteran's prostate cancer is service related. 38 C.F.R. § 3.159; see also McLendon v. Nicholson, 20 Vet. App. 79, 86 (2006). The matters are REMANDED for the following action: 1. Contact the appropriate Federal custodian of records for Company E, 2/4 battalion landing team, 3rd Marine division, for the periods 1977-1978, and request a search of the lessons learned, morning reports, sick reports, unit rosters, or other appropriate records to verify whether the Veteran suffered an injury from a misfired mortar, part of a patrol that discovered dead bodies in the Olongapo area of the Philippines for the 1977-1978 time period, or secured a crash site area after a helicopter crash in October 1977. If the records do not exist or further efforts to obtain the records would be futile, notify the Veteran in accordance with 38 C.F.R. § 3.159(e). 2. Ask the Veteran to identify all outstanding treatment records relevant to his claims including records from the University of Chicago. All identified VA records should be added to the claims file. All other properly identified records should be obtained if the necessary authorization to obtain the records is provided by the Veteran. If any records are not available, or the Veteran identifies sources of treatment but does not provide authorization to obtain records, appropriate action should be taken (see 38 C.F.R. § 3.159(c)-(e)), to include notifying the Veteran of the unavailability of the records. 3. After records development is completed, schedule the Veteran for a VA ¬¬¬knee examination to determine the current symptoms, level of severity, and functional impairment associated with his left knee. The claims file should be reviewed by the examiner. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups and after repetitive use over time. If it is not possible to specifically estimate the range of motion during flare-up and after repetitive use over time without speculation, the examiner is asked to opine as to whether during these conditions flexion of the left knee would be limited to 30 degrees or less, or if extension of the left knee would be 10 degrees or more; if motion would be greater than this, that should be stated. To the extent relevant, the examination report should discuss the left knee under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The examiner is asked to specifically consider and discuss the April 2005 MRI finding that the Veteran had a nondisplaced left medial meniscus tear. If any requested opinion cannot be accomplished without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training) and explain why that is the case. 4. After records development is completed, schedule the Veteran for a VA examination to determine whether it is at least as likely as not (50 percent probability or greater) that any current disability of the left hip onset during service or is otherwise related to an in-service injury, event, or disease. The examiner should also address whether any current disability of the left hip is at least as likely as not (a) caused by, or (b) aggravated by (worsened beyond natural progression) service-connected left knee, to include because of favoring the left knee. The examiner should elicit a full history from the Veteran and consider the lay statements of record. The Veteran is competent to attest to factual matters of which he has first-hand knowledge, and if there is a medical basis to support or doubt the history provided by the Veteran the examiner should provide a fully reasoned explanation. A rationale for all opinions expressed is requested as adjudicators are precluded from making any medical findings. 5. After records development is completed, schedule the Veteran for a VA examination to determine whether it is at least as likely as not (50 percent probability or greater) that any current psychiatric disability had its onset during service or is otherwise related to an in-service injury, event, or disease, to include the stressors identified by the Veteran. In offering the opinion, the examiner is asked to consider and discuss each psychiatric diagnosis of record, including, but not limited to PTSD, bipolar disorder, schizoaffective disorder, and anxiety disorder NOS. The discussion should explain whether any diagnosis of record meets the DSM-5 criteria for the diagnosis The examiner should elicit a full history from the Veteran and consider the lay statements of record. The Veteran is competent to attest to factual matters of which he has first-hand knowledge, and if there is a medical basis to support or doubt the history provided by the Veteran the examiner should provide a fully reasoned explanation. A rationale for all opinions expressed is requested as adjudicators are precluded from making any medical findings. 6. After records development is completed, schedule the Veteran for a VA examination to determine whether it is at least as likely as not (50 percent probability or greater) that the Veteran's prostate cancer had its onset during service or is otherwise related to an in-service injury, event, or disease, to include the contaminated drinking water at Camp Lejeune. In offering the opinion, the examiner is instructed to provide an opinion as to whether the disability is related to the Veteran's active military service or otherwise attributable to the drinking water at Camp Lejeune regardless of whether the condition is a listed disease under 38 C.F.R. § 3.309 (f). The examiner should elicit a full history from the Veteran and consider the lay statements of record. The Veteran is competent to attest to factual matters of which he has first-hand knowledge, and if there is a medical basis to support or doubt the history provided by the Veteran the examiner should provide a fully reasoned explanation. A rationale for all opinions expressed is requested as adjudicators are precluded from making any medical findings. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Russell P. Veldenz, 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.