Citation Nr: 21008994 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 16-32 876 DATE: February 18, 2021 ORDER The petition to reopen the previously denied claim for service connection for a left knee disability (previously denied as left knee injury) is denied. The petition to reopen the previously denied claim for service connection for a left shoulder disability (previously denied as pulled muscle of the left shoulder) is denied. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is remanded. FINDINGS OF FACT 1. An unappealed April 2007 rating decision denied service connection for left knee injury; new and material evidence was not received prior to expiration of the appeal period; subsequently received evidence includes evidence that is cumulative or redundant and does not relate to an unestablished fact necessary to reopen the claim. 2. An unappealed April 2007 rating decision denied service connection for pulled muscle of the left shoulder; new and material evidence was not received prior to expiration of the appeal period; subsequently received evidence includes evidence that is cumulative or redundant and does not relate to an unestablished fact necessary to reopen the claim. CONCLUSIONS OF LAW 1. The April 2007 rating decision denying the claim for service connection for left knee injury is final; and new and material evidence has not been received to reopen the claim. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. §§ 3.156(a), 3.160(d), 20.1103. 2. The April 2007 rating decision denying the claim for service connection for pulled muscle of the left shoulder is final; and new and material evidence has not been received to reopen the claim. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. §§ 3.156(a), 3.160(d), 20.1103. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1981 to March 1983. This appeal comes to the Board of Veterans Appeals (Board) from a September 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. In August 2019, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A hearing transcript is associated with the record. Although the Veteran was represented by Disabled American Veterans at the time of her hearing, her representative did not appear. However, the Veteran waived her right to have representation during the hearing, stating that she wanted to move forward with the hearing without representation. See Hearing Transcript at 2 (August 2019). The VLJ held the record open for 30 days for the submission of supporting evidence. The Veteran, subsequently, submitted a VA Form 21-4142. Lastly, the Board notes that the Veteran submitted a May 2018 Rapid Appeals Modernization Program (RAMP) Election form. Contemporaneously, this matter was certified to the Board. The Board issued a November 2020 RAMP Clarification letter that instructed the Veteran to submit a response within 60 days of her intention to proceed under the modernized review system, also known as the Appeals Modernization Act (AMA), or legacy system. As the record reflects no response from the Veteran, this matter shall proceed under the legacy system. New and Material Evidence Generally, a claim that has been denied in an unappealed RO or Board decision may not thereafter be reopened and allowed. 38 U.S.C. § 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 is defined as existing evidence not previously submitted to agency decision makers. Material evidence means 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 previously of record and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156. Evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented. Anglin v. West, 203 F.3d 1343, 1347 (2000). In deciding whether new and material evidence has been received, the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). Regardless of whether the agency of original jurisdiction (AOJ) found that new and material evidence had been submitted to reopen a claim for service connection, it is well established that the Board must determine on its own whether new and material evidence has been submitted to reopen a claim. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Lastly, unless new and material evidence has been submitted, the duty to assist does not attach. Anderson v. Brown, 9 Vet. App. 542 (1996). 1. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a left knee disability (previously denied as left knee injury). 2. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a left shoulder disability (previously denied as pulled muscle of the left shoulder). Issues 1-2. The Veteran contends that she injured her left knee in service and later developed osteoarthritis of the left knee, which she believes is due to or the result of the in-service left knee injury. See Hearing Transcript at 5 (August 2019). She also contends that she has left shoulder disability due to or the result of a pulled muscle sustained while performing pull ups in service. See Id. at 6. The record shows that VA received in July 2006 the Veteran’s original claim for service connection for left knee injury and pulled muscle of the left shoulder. See VA Form 21-526 (July 2006). An April 2007 rating decision denied the claims. In May 2014, VA received her claim to reopen these matters. See VA Form 21-526Ez (May 2014). The Board concludes that the April 2007 rating decision denying the claims for service connection for left knee injury and service connection for pulled muscle of the left shoulder is final; and that new and material evidence has not been received to reopen the claims. 38 U.S.C. §§ 5103, 5103A, 5108, 7105(c); 38 C.F.R. §§ 3.104, 3.156(a), (b), 20.1103. An April 2007 rating decision denied service connection for left knee injury because the evidence of record did not show that the Veteran’s left knee disability was incurred in or related to service. The rating decision additionally denied service connection for pulled muscle of the left shoulder because the evidence of record did not show that the Veteran’s current left shoulder disability was incurred in or related to service. VA notified the Veteran of this decision in an April 2007 letter and how to appeal. VA received no appeal or new and material evidence prior to expiration of the appeal period. Therefore, the rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.1103. At the time of the prior final disallowance, the evidence of record included lay and medical evidence. The medical evidence consisted of service treatment record (STRs) and private treatment notes. STRs dated in September 1982 reflect right shoulder complaint due to pull ups without signs of nerve damage, assessed as supratentorial overlay with a hysterical component. X-rays were negative. A February 1983 report of medical history, at separation from service, reflects “I feel I am in perfect health…” She denied a history of painful or “trick” shoulder and “trick or locked knee, along with swollen or painful joints and arthritis. Report of examination for separation, dated in February 1983, reflect normal clinical evaluation of the upper and lower extremities, musculoskeletal system, and neurologic system. Private treatment notes indicate that the Veteran had been in multiple roll accidents in August 2001 and incurred multiple injuries to include a left knee contusion; that she had a December 1990 motor vehicle accident with neck complaints. The lay evidence consisted of written statement from Veteran describing her in-service injury to the left knee and left shoulder, and her belief that her current conditions are related thereto. For example, she reported left knee injury while performing morning exercises, hitting her knee on a two by four causing excruciating pain. Also, she reported left shoulder injury casing numbness of the left arm and hand; and that left shoulder injury recurred after a mugging in July of 2006. See generally VA Form 2104138 (September 2006); Correspondence (November 2006). Evidence associated with the claims file since the prior final disallowance includes lay and medical evidence that does not cure a prior evidentiary defect. Medical evidentiary submissions received by VA since the prior final denial includes, among other things, VA treatment records, private treatment records and copies of service treatment records. The medical evidence continues to show that the Veteran’s current left knee disability, to include osteoarthritis, did not manifest to a compensable degree within the presumptive period following separation from service or that it had its onset in, or was caused by, service. Additionally, the medical evidence continues to reflect that the Veteran’s left shoulder disability did not have its onset during service or that it is related to an in-service injury or disease. The lay evidence of record, on the other hand, includes the Veteran’s statements and sworn testimony to the effect that she believes that her disabilities are related to in-service injuries. First, for the left knee, the Veteran maintains that it stems from morning exercises and from hitting it on a two by four; additionally, lay statements reflect continued pain and treatment, to include self-treatment. The Veteran’s assertions as to the onset and continuousness of symptoms related to her left knee disability during, and after, service are not new and material insofar as they are redundant or cumulative of prior assertions made and considered by a prior adjudicator. Second, as to the Veteran’s statements regarding her left shoulder, she argues that it stems from doing pull-ups while in service. The assertions, as to the onset and continuousness of symptoms during, and after, service, similarly, are not new and material to the extent as they are also are redundant or cumulative of prior assertions made and considered by a prior adjudicator. Overall, a collective review of the medical and lay evidence since the final prior denial does not reveal competent evidence of (1) an onset of any left knee or left shoulder disability in service, (2) osteoarthritis of the left knee manifesting to a compensable degree within the presumptive period following separation from service, or (3) either disability otherwise being etiologically related to and in-service injury or disease. Given the above discussion, the Board finds that new and material evidence has not been presented to reopen the claims. Accordingly, the petitions to reopen the previously denied claims are denied. See 38 C.F.R. § 3.156(a). The benefit of the doubt doctrine is not applicable. Annoni v. Brown, 5 Vet. App. 463, 467 (1993). The Board notes that the Veteran may file another claim under the modernized appeal system that became effective in February 2019, which has eliminated the requirement for “new and material evidence” and only requires “new and relevant evidence” (a significantly lower threshold) to readjudicate the matters. REASONS FOR REMAND Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is remanded. The Veteran contends that her current acquired psychiatric disorder stems from in-service sexual harassment. In this regard, the Veteran maintains that while in service she was harassed by a non-commissioned officer; she further testified that she started experiencing symptoms of an acquired psychiatric disorder in 2008. See Hearing Transcript 9-11 (August 2019). For reasons discussed below, the Board finds that remand is necessary to obtain an examination and medical opinion. Service connection will be granted for a disability resulting from an injury or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, in the active military, naval, or air service. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303(a). Every veteran shall be taken to have been in sound condition when examined, accepted and enrolled for service, except as to defects noted at the time of the examination, acceptance and enrollment, or where clear and unmistakable evidence such as to warrant a finding that the disease or injury existed before acceptance and enrollment, and was not aggravated by such service. 38 U.S.C. § 1111. A preexisting injury or disease is considered aggravated by military service where there is an increase in disability during service, absent a specific finding that the increase in disability was due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a). For veterans who served during a period of war or after December 31, 1946, clear and unmistakable evidence is required to rebut the presumption of aggravation where the preservice disability underwent an increase in severity during service, and clear and unmistakable evidence includes medical facts and principles which may be considered to determine whether the increase is due to the natural progress of the condition. 38 C.F.R. § 3.306(b). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C. § 1153; 38 C.F.R. §§ 3.304, 3.306(b). Here, the record raises a question as to whether the Veteran had an acquired psychiatric disorder that preexisted service. As discussed above, a veteran will be considered to have been in sound condition when examined and accepted for service, except as to disorders noted on entrance into service, or when clear and unmistakable evidence demonstrates that the disability existed prior to service and was not aggravated by service. Only such conditions as are recorded in examination reports are to be considered as noted. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). In cases where the disease or injury at issue is not noted on the entrance examination, a two-pronged test is for consideration in determining whether the presumption of soundness has been rebutted. First, VA must show by clear and unmistakable evidence that the disease or injury existed prior to service. Second, VA must show by clear and unmistakable evidence that the preexisting disease or injury was not aggravated by service. VAOPGCPREC 3-2003 (July 16, 2003). See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). A review of the Veteran’s February 1981 enlistment examination report reflects that the Veteran was clinically evaluated as having a normal psychiatric. Indeed, the entrance examination report reveals no abnormalities or defects for the psychiatric. Accordingly, the presumption of soundness is for application. To rebut this presumption, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. See 38 C.F.R. § 3.304(b); see also Wagner, 370 F.3d at 1093. The record, however, shows that the Veteran has PTSD symptoms related to childhood trauma. In this regard, an April 2014 comprehensive mental health evaluation reveals that the Veteran was assessed with having PTSD symptoms related to being molested by her stepfather as a child. See Medical Treatment Record-Non-Government Facility (April 2014); see also Medical Treatment Record-Non-Government Facility (October 2012) (revealing that the Veteran had a “bad childhood” involving multiple rapes from age of 14 to 18). Thus, as VA regulations pertaining to the rebuttal of the presumption of soundness require the highly stringent standard of clear and unmistakable evidence that the Veteran’s disease or injury existed prior to service and clear and unmistakable evidence that the preexisting disease or injury was not aggravated by service, the Board finds that an examination and medical opinion is necessary. VA has not yet obtained a medical opinion addressing this aspect of the Veteran’s claim for service connection. See Horn v. Shinseki, 25 Vet. App. 231, 243 (2012) (“[T]he Secretary’s authority to develop a claim necessarily includes the authority to collect and develop evidence that might rebut the presumption of service connection.”) (citing Douglas v. Shinseki, 23 Vet. App. 19, 24 (2009)); Shoffner v. Principi, 16 Vet. App. 208, 213 (2002) (Board has discretion below as to how much development is required). Lastly, as noted in the introduction, following the Board hearing, the Veteran submitted to the AOJ multiple VA Forms 21-4142, to include for Mojave Mental Health. The Private Medical Records Retrieval Center, however, rejected the request for medical records because of a missing page. It does not appear that the AOJ followed-up with the Veteran in attempt to remedy the incomplete forms. Accordingly, while in remand status, the Veteran should be afforded another opportunity to submit a completed VA Form 21-4142. In remanding this matter, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran’s assertions. Neither the Veteran’s credibility nor any lack thereof should be presumed in this remand. The matter is REMANDED for the following actions: 1. Ask the Veteran to complete a VA Form 21-4142 for all non-VA medical providers seen for symptoms and treatment of her acquired psychiatric disorder, to include from Mojave Mental Health. Make two requests for the authorized records from all identified sources, unless it is clear after the first request that a second request would be futile 2. Attempt to corroborate the Veteran’s in-service stressor(s). If more details are needed, contact the Veteran to request the information. 3. Obtain the Veteran’s VA treatment records for the period from July 2019 to the Present. 4. Schedule the Veteran for a VA examination by an appropriate clinician to determine the nature and etiology of any acquired psychiatric disorder. The entire claims file, to include a copy of this REMAND, should be made available to and reviewed by the clinician. Based on review of the record, detail the Veteran’s reported symptoms, including the nature, onset, progression and severity of any symptoms consistent with any acquired psychiatric disorder. The clinician must opine on: Preexisting Acquired Psychiatric Disorder (a) Whether any acquired psychiatric disorder clearly and unmistakably (undebatable) preexisted the Veteran’s service. Consider and expressly address evidence relating the Veteran’s PTSD symptoms to childhood trauma. Explain. (b) If so, whether it was clearly and unmistakably not aggravated by service or whether it is clear and unmistakable that any increase was due to the natural progress. Consider and expressly address the alleged in-service harassment complaints. Explain. Non-Preexisting Acquired Psychiatric Disorder (c) For any non-preexisting acquired psychiatric disorder, opine on whether it is at least as likely as not had its onset in service or is related to an in-service injury, event, or disease. Consider and expressly address the alleged in-service harassment complaints. Explain. PTSD (d) If the Veteran is diagnosed with PTSD, the examiner must explain how the diagnostic criteria are met and opine whether it is at least as likely as not related to a verified in-service stressor. 5. Ensure that the VA medical opinions obtained include a complete rationale for the conclusions reached. The medical opinions must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. (Continued on next page) 6. Readjudicate. C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Griffey, 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.