Citation Nr: 21025653 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 15-37 945 DATE: April 29, 2021 ORDER New and material evidence having been received, the claim for service connection for a low back disability is reopened. To that extent only, the claim is granted. REMANDED Entitlement to service connection for a low back disability is remanded. Entitlement to service connection for a psychiatric disability, to include posttraumatic stress disorder (PTSD), is remanded. Entitlement to a rating in excess of 10 percent for a right knee disability is remanded. Entitlement to a rating in excess of 0 percent for a left knee disability is remanded. Entitlement to a rating in excess of 0 percent for scars of the left knee is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. FINDINGS OF FACT 1. A November 2008 rating decision denied an application to reopen service connection for a low back disability. 2. Evidence received since the November 2008 rating decision is neither cumulative nor redundant, and, when considered with previous evidence of record, raises a reasonable possibility of substantiating the claim for service connection for a low back disability. CONCLUSIONS OF LAW 1. The November 2008 rating decision that denied service connection for a low back disability is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 20.302, 20.1103. 2. New and material evidence sufficient to reopen the claim of entitlement to service connection for a low back disability has been received and the claim is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDING AND CONCLUSION A request for entitlement to TDIU, whether expressly raised by a veteran or reasonably raised by the record, is not a separate claim for benefits, but part of an increased rating claim. In a January 2021 private evaluation, a private examiner indicated that the Veteran was totally disabled due, in part, to service-connected knee disabilities. Thus, although the issue of entitlement to TDIU has not been addressed previously as part of this appeal, the Board finds that it has been reasonably raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). Whether new and material evidence has been submitted to reopen a claim for service connection for a low back disability. Generally, a claim that has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). However, if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108. New evidence means 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). New and material evidence is not required as to each previously unproven element of a claim. There is a low threshold for reopening claims. 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of determining whether new and material evidence has been submitted, the credibility of the new evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). To establish service connection for a current disability, a Veteran must show the existence of a present disability; in-service incurrence or aggravation of a disease or injury; and a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). The Veteran essentially contends that he injured the low back in service during an accident involving a parachute jump. Post-service treatment records indicate treatment for degenerative changes of the thoracolumbar spine. VA denied the Veteran's application to reopen a previously denied claim for service connection for a low back disability in a November 2008 rating decision. In that decision, the Agency of Original Jurisdiction indicated that the evidence of record did not indicate that the claimed back disability was related to service. The Veteran did not appeal the decision in a timely manner and it became final. Reviewing the evidence submitted since the issuance of the November 2008 rating decision, in a September 2020 private evaluation, a private examiner, based on a review of various medical records, indicated that a medical nexus existed between the reported parachute accident and a current low back disability. The September 2020 private evaluation is new, because it was not before VA at the time of the November 2008 rating decision. When presuming the credibility of the evaluation, as is required only when determining whether to reopen a previously denied claim for service connection, it is also material, because it suggests a relationship between a current back disability and service. New and material evidence having been received, the claim for service connection for a low back disability is reopened. To that extent only, the claim is allowed. REASONS FOR REMAND 1. Entitlement to service connection for a low back disability is remanded. In a September 2020 private evaluation, a private examiner indicated that a nexus existed between an in-service parachute accident and service. The Board notes that the examiner did not come to that determination after a personal examination nor did the examiner note post-service incidents, to include a December 1991 automobile accident after which the Veteran reported experiencing back pain, in explaining the basis for the decision. Nevertheless, remand is necessary to schedule the Veteran with an examination to determine the nature and etiology of the claimed low back disability. 2. Entitlement to service connection for a psychiatric disability, to include PTSD, is remanded. The service medical records do not contain any notation indicating treatment or diagnosis for a psychiatric disability. In an October 2020 private psychiatric evaluation, a private examiner indicated that the Veteran had both adjustment and somatic symptom disorders that were at least as likely as not caused by an incident in service during which the Veteran fell from a height after his parachute partially inverted. In explaining a basis for the opinion, the examiner stated that the Veteran was performing well in service prior to the accident and then experienced a decrease in functioning following the incident. The examiner did not indicate the basis for the finding that the Veteran experienced a decrease in function following the incident. However, because the October 2020 psychiatric evaluation is suggestive of a nexus between a claimed psychiatric disability and service, the Board notes that it cannot make a fully-informed decision on the issue of service connection for a psychiatric disability, because no VA examiner has opined whether the Veteran's claimed psychiatric disaiblity is related to service. Remand is necessary to schedule an examination. 3. Entitlement to a rating in excess of 10 percent for a right knee disability is remanded. 4. Entitlement to a rating in excess of 0 percent for a left knee disability is remanded. 5. Entitlement to a rating in excess of 0 percent for scars of the left knee is remanded. 6. Entitlement to TDIU is remanded. At a January 2021 video hearing, the Veteran asserted that his disabilities had increased in severity since the most recent VA examination. The Veteran should be provided an opportunity to report for a VA examination to ascertain the current severities and manifestations of his service-connected disabilities. Additionally, the Veteran is currently in receipt of a 10 percent rating for a right knee disability due to symptomatology more nearly approximating slight lateral instability in the knee under VA regulations in place as of the time of the Veteran's claim. As VA regulations have recently changed with respect to musculoskeletal conditions and, in particular, instability of the knee, in the examination report required by this remand, the examiner should provide the necessary clarification regarding any recurrent instability. For reference, from February 7, 2021, Diagnostic Code 5257 provides ratings for either “recurrent subluxation or instability” or “patellar instability.” With respect to recurrent subluxation or instability, from February 7, 2021, Diagnostic Code 5257 provides for a 10 percent rating for sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device. A 20 percent disability rating is warranted for either: (1) a sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability and a medical provider prescribes either an assistive device or bracing for ambulation; or (2) unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device or bracing for ambulation. A 30 percent rating is warranted for unrepaired or failed repair of complete ligament tear causing persistent instability and a medical provider prescribes both an assistive device and bracing for ambulation. With respect to patellar instability, from February 7, 2021, Diagnostic Code 5257 provides for a 10 percent disability rating for a diagnosed condition involving the patellofemoral complex with recurrent instability (without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker. A 20 percent rating may also be assigned for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: brace, cane, or walker. A 30 percent disability rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker. Moreover, in a December 2020 letter, the Veteran's representative requested the curriculum vitae for Dr. James H. Thiel, the VA examiner who performed the November 2013 VA medical examination to determine the severity of the Veteran's service-connected left and right knee disabilities. A remand is necessary to provide the Veteran's representative with the requested document. In the October 2020 private psychiatric evaluation, the examiner indicated that the Veteran had been in receipt of Supplemental Security Income (SSI) from the Social Security Administration (SSA) for many years. Because those records may contain relevant information, a remand is required to allow VA to request any outstanding records regarding the Veteran’s claim from SSA. Finally, the VA treatment records currently in evidence contain notations indicating that a VA employee scanned medical records into a VA hospital's imaging system, but do not contain any copies of the scanned records. Any treatment records scanned into a VA hospital's imaging system are within VA's constructive possession and are considered potentially relevant to the issues on appeal. Remand is required to allow VA to obtain those records. The matters are REMANDED for the following action: 1. Provide the Veteran with a copy of the curriculum vitae for Dr. James H. Thiel who conducted the November 2013 VA examination. 2. Obtain the Veteran’s federal records from SSA. Document all requests for information as well as all responses in the claims file. 3. Obtain all outstanding VA treatment records. Specifically, obtain the most recent VA treatment records not included in the record of evidence and the records noted as having been scanned into the Vista imaging system by VA Medical Center personnel, as noted in the VA treatment records in evidence, dated May 2, 2014; June 27, 2012; May 25, 2012; December 13, 2008; January 13, 2005; and May 28, 2004. 4. Schedule the Veteran for a VA orthopedic examination by an orthopedist who has not previously examined the Veteran to determine the severity of the service-connected right and left knee disabilities, and left knee scars, and the etiology of the claimed low back disability. The examiner must review the record and should note that review in the report. In reviewing the record, the examiner should note the service medical records, to include the records indicating treatment for diagnosed chondromalacia following a November 1978 parachute accident; the post-service treatment records, to include the January 1992 private treatment record, in which the Veteran reported injuring his back both during service and in a recent automobile accident; the October 2020 private psychiatric evaluation, in which the Veteran reported being hit with a baseball bat in multiple fights; the September 2020 private medical evaluation, in which an examiner reported the existence of a medical nexus between the Veteran's low back disability and the in-service parachuting accident; and the lay statements of record. All appropriate tests or studies, to include X-rays if considered to be necessary, should be accomplished, and all clinical findings should be reported in detail. Regarding the knees, the examiner must report the range of motion of the knees, expressed in degrees, to include measurements for weight-bearing, nonweight-bearing, passive motion, and active motion. The examiner must make specific findings as to whether, during the examination, there is objective evidence of additional loss of function due to painful motion, weakened motion, excess motion, fatigability, incoordination, or on flare up. If pain on motion is observed, the examiner should indicate the point at which pain begins. The examiner should also indicate whether, and to what extent, the Veteran experiences functional loss of the knees or any other symptoms during flare-ups or with repeated use. To the extent possible, the examiner should express any additional functional loss in terms of additional degrees of limited motion. The examiner must also indicate whether the Veteran experiences recurrent subluxation or instability, or patellar instability of either knee. The examiner should indicate whether the Veteran has been prescribed any assistive device due to his knee instability. The examiner is also asked to examine any scars resulting from left knee surgery, and make comments as to their size and nature, to include describing the measurements of the scars and whether they are superficial, unstable, discolored, painful, or tender on palpation. After an examination, a review of the claims file, and an interview with the Veteran, the examiner is asked to also provide the following opinions: (a.) Diagnose all disabilities of the low back. (b.) Is it at least as likely as not (50 percent probability or greater) that any low back disability diagnosed during the pendency of the appeal (dating to May 2013) had its onset during service or is related to any event, injury, or disease during service? (c.) If arthritis of the low back is diagnosed, is it at least as likely as not that the disability (1) began during active service, (2) manifested within one year after the Veteran's July 1982 separation from service, or (3) was noted during service with continuity of the same symptomatology since service? 5. Then, schedule the Veteran for a VA mental disorders examination with a psychiatrist or psychologist to ascertain the nature and etiology of any current psychiatric disability, to include PTSD. The examiner must review the record and should note that review in the report. In reviewing the record, the examiner should note the service medical records, to include the records indicating treatment for diagnosed chondromalacia following a November 1978 parachute accident; any relevant service personnel records; the October 2020 private psychiatric evaluation, in which a private examiner found that the Veteran had psychiatric disabilities related to an in-service parachute accident; and the lay statements of record. The examiner should note all psychiatric disabilities diagnosed during the pendency of the appeal, dating to May 2013. An interview of the Veteran regarding his psychiatric history, a psychiatric examination, and all tests and studies required to respond to the following questions should be performed. If the examiner disagrees with the findings of the October 2020 private examiner, the examiner should note that disagreement in the required opinions and explain the reasons for disagreement. The VA examiner should specifically note and discuss any of the Veteran's claimed stressors. A complete rationale should be provided for all opinions and conclusions. The examiner is asked to offer the following opinions: (a.) Diagnose all current psychiatric disabilities and should specifically state whether or not each criterion for a diagnosis of PTSD is met. (b.) If a diagnosis of PTSD is warranted, is it at least as likely as not (50 percent or greater probability) that PTSD is the result of a corroborated in-service stressor incident? (c.) For any diagnosed psychiatric disability other than PTSD diagnosed during the pendency of the appeal (dating to May 2013), is it at least as likely as not (50 percent or greater probability) that each diagnosed psychiatric disability is related to service or any incident of service? (d.) If a psychosis is diagnosed, is it at least as likely as not that the disability (1) began during active service, (2) manifested within one year after the Veteran's July 1982 separation from service, or (3) was noted during service with continuity of the same symptomatology since service? 6. Then, readjudicate the issues on appeal, including the issue of entitlement to TDIU. If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T.M. Gillett 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.