Citation Nr: 21013395 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 19-24 564 DATE: March 9, 2021 ORDER The petition to reopen the previously denied claim for entitlement to service connection for degenerative disc disease, lumbar spine, is granted. The petition to reopen the previously denied claim for entitlement to service connection for a left knee disability is granted. The petition to reopen the previously denied claim for entitlement to service connection for a right knee disability is granted. The petition to reopen the previously denied claim for entitlement to service connection for bilateral pes planus is granted. The petition to reopen the previously denied claim for entitlement to service connection for an acquired psychiatric disability is granted. REMANDED Entitlement to service connection for degenerative disc disease, lumbar spine, is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for bilateral pes planus is remanded. Entitlement to service connection for an acquired psychiatric disability is remanded. FINDINGS OF FACT 1. The claim for service connection for degenerative disc disease was denied in a September 2016 unappealed decision; subsequently received evidence includes evidence that is not cumulative or redundant and relates to an unestablished fact necessary to reopen the claim. 2. The claim for service connection for a left knee disability was denied in a September 2016 unappealed decision; subsequently received evidence includes evidence that is not cumulative or redundant and relates to an unestablished fact necessary to reopen the claim. 3. The claim for service connection for a right knee disability was denied in a September 2016 unappealed decision; subsequently received evidence includes evidence that is not cumulative or redundant and relates to an unestablished fact necessary to reopen the claim. 4. The claim for service connection for a bilateral pes planus disability was denied in a September 2016 unappealed decision; subsequently received evidence includes evidence that is not cumulative or redundant and relates to an unestablished fact necessary to reopen the claim. 5. The claim for service connection for an acquired psychiatric disability was denied in a September 2016 unappealed decision; subsequently received evidence includes evidence that is not cumulative or redundant and relates to an unestablished fact necessary to reopen the claim. CONCLUSIONS OF LAW 1. The September 2016 rating decision is final. New and material evidence has been received to reopen the claim of entitlement to service connection for degenerative disc disease. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. The September 2016 rating decision is final. New and material evidence has been received to reopen the claim of entitlement to service connection for a left knee disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The September 2016 rating decision is final. New and material evidence has been received to reopen the claim of entitlement to service connection for a right knee disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 4. The September 2016 rating decision is final. New and material evidence has been received to reopen the claim of entitlement to service connection for bilateral pes planus. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 5. The September 2016 rating decision is final. New and material evidence has been received to reopen the claim of entitlement to service connection for an acquired psychiatric disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from January 1963 to February 1967. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a July 2018 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In November 2020, the Veteran testified at a virtual hearing before the undersigned Veterans Law Judge (VLJ). A copy of the transcript has been associated with the Veteran’s electronic claims folder. Application to Reopen Based on New and Material Evidence The Board finds that the Veteran has submitted new and material evidence to warrant reopening his previously denied claims for service connection. New evidence means existing evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156 (a). 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. The credibility of this evidence must be presumed, albeit just for the limited purpose of deciding whether it is new and material. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Additionally, new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In determining whether this low evidentiary threshold has been met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should consider whether the evidence could reasonably substantiate the claim, were the claim to be reopened. Shade, 24 Vet. App. at 118. In a September 2016 rating decision, the RO denied the Veteran's claims for entitlement to service connection for degenerative disc disease and left and right knee disabilities due to no submission of new and material evidence. The Veteran’s claims had previously been denied due to no evidence of claimed disabilities during service or for many years after service. The RO denied the Veteran’s claims for entitlement to service connection for a left and right foot disability due to aggravation during service. The RO denied the Veteran’s acquired psychiatric claim due to no evidence during service. The Veteran was notified of his appellate rights. A notice of disagreement was not received within the subsequent one-year period, nor was any new and material evidence received during that time period. Therefore, the September 2016 rating decision is final. Since the previous final decision, on his April 2011 VA Form 21-4138, the Veteran stated that he suffered from back problems due to his 69 parachute jumps while in the Army. In a May 2019 VA Form 21-0781a, the Veteran stated that he witnessed a fellow soldier jump from an airplane and die after his parachute failed to open. He also submitted an article from October 1963 which stated that Paratrooper [REDACTED] was killed in a jump at Fort Campbell. The Veteran also submitted an April 2020 psychological evaluation report from Dr. M.L. which stated that the Veteran’s posttraumatic stress disorder (PTSD) was related to his in-service witnessing of the fallen paratrooper [REDACTED]. At the November 2020 Board hearing, the Veteran testified that during service he went to the infirmary about his back and started having problems with his back many years ago. See Board Hearing Transcript, p. 10. He testified that he had over 50 jumps and “as a paratrooper, [he didn’t] walk around whining and complaining like a child [whenever he got injured].” Id at 7. He also testified that he could not recall if he experienced pain in his knees during service because it was “50 some years ago.” He testified that he was diagnosed with asymptomatic bilateral pes planus during service and his feet got progressively worse. See Board Hearing Transcript, pp. 11-12. He testified that he was given ill fitted boots and noticed problems with his feet 18 months later. Id. at 12. As this evidence was not previously reviewed by agency decisionmakers, the Board finds that the evidence is new. The Board further finds that the evidence is not only new, but also material. It raises a reasonable possibility of substantiating the claim when considered with the old evidence. See Shade. In that regard, the impact of the Veteran’s history of over 60 parachute jumps on his current back and knee disabilities were not previously considered by a VA examiner. Further, evidence that the Veteran wore ill fitted boots contributed to the Veteran’s bilateral pes planus was not previously considered. Finally, there is medical evidence that the Veteran suffers from a mental health disability related to a corroborated stressor. Accordingly, the Veteran's claims for service connection for degenerative disc disease; left and right knee disabilities; bilateral pes planus and an acquired psychiatric disability are reopened. REASONS FOR REMAND Having reopened the claim under Shade, the Board finds that the Veteran is entitled to a VA examination. The Veteran was not afforded a VA examination in connection with his claim for service connection for an acquired psychiatric disability. A VA examination is required where the record includes (1) competent evidence of a current disability or continuous symptoms since service; (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies; and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with a Veteran's service or with another service-connected disability; and (4) lack of sufficient competent evidence upon which the Board can decide the claim. See 38 U.S.C. § 5103A (d) (2012); 38 C.F.R. § 3.159 (c)(4)(i); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). In a May 2019 VA Form 21-0781a, the Veteran stated that he witnessed a fellow soldier jump from an airplane and die after his parachute failed to open. He also submitted an article from October 1963 which stated that Paratrooper [REDACTED] was killed in a jump at Fort Campbell. There is also evidence that the Veteran has been diagnosed with depressive disorder, posttraumatic stress disorder (PTSD) and/or anxiety disorder. See April 2020 psychological evaluation report by Dr. M.L. Based on foregoing, the Board finds that a remand is necessary to afford the Veteran a VA examination which determines the etiology of any diagnosed psychiatric disability. Next, the Board finds that a remand is required to obtain addendum opinions regarding the etiology of the Veteran’s degenerative disc disease; bilateral foot and knee disabilities. In that regard, the Veteran was previously afforded VA examinations in April 2012 and April 2016. However, there is no opinion which addresses the impact of the Veteran’s 60 plus airplane jumps on his subsequent development of his back and knee disabilities. Further, there is no medical opinion which addresses the Veteran’s contention that his ill fitted boots contributed to aggravation of his noted “asymptomatic pes planus” during service. Also, there is evidence that the Veteran receives regular treatment at a VA facility. Since the claims file is being returned it should be updated to include any recent VA treatment records that are not of record. See 38 C.F.R. § 3.159(c)(2); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). The matters are REMANDED for the following action: 1. Obtain up to date VA treatment records pertaining to the Veteran and associate them with the electronic claims folder. 2. Then, schedule the Veteran for a VA examination to address the etiology of his acquired psychiatric disability. The electronic claims folder, including a copy of this remand, must be made available to the examiner for review in connection with the opinion. The examiner is requested to review the electronic claims file (and note such a review) and offer an opinion as to the following questions: (a) Provide a diagnosis for all psychiatric disabilities. (b) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s diagnosed psychiatric disabilities are related to service, to include the corroborated stressor of witnessing a paratrooper fall to his death. The examiner’s attention is directed to the following: (i) Veteran’s lay statement regarding witnessing a paratrooper fall to his death; (ii) October 1963 article corroborating the Veteran’s lay statement about witnessing a paratrooper fall to his death; (iii) VA treatment records which indicate diagnoses of depressive disorder; and (iv) May 2020 opinion from Dr. M.L opining that the Veteran suffers from PTSD related to the in-service stressor. A complete rationale for all opinions reached must be provided. 3. Obtain addendum medical opinions (from the April 2012 and April 2016 VA examiners) regarding the etiology of the Veteran’s degenerative disc disease; right and left knee disabilities and bilateral pes planus. The Veteran's electronic claims folder, including a copy of this remand, must be available to the examiners for review. If the examiners find another examination is necessary, another examination should be scheduled. The examiners are requested to offer an opinion as the following: (a) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s degenerative disc disease was incurred in or is otherwise related to service, to include due to his 60 plus airplane jumps. (b) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s left knee disability was incurred in or is otherwise related to service, to include due to his 60 plus airplane jumps. (c) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s right knee disability was incurred in or is otherwise related to service, to include due to his 60 plus airplane jumps. (d) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s bilateral pes planus was incurred in or is otherwise related to service, to include due to him wearing ill footed boots. The examiner’s attention is directed to evidence that the Veteran was diagnosed with asymptomatic pes planus during service and contends that his ill fitted boots caused his pes planus to become severe. A complete rationale for all opinions reached must be provided. Michael A. Pappas Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Baskerville, LaRita 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.