Citation Nr: 21028030 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 16-54 302 DATE: May 10, 2021 ORDER The application to reopen a claim for entitlement to a psychiatric condition to account for hearing voices is granted. REMANDED Entitlement to service connection for a psychiatric condition to account for hearing voices is remanded. Entitlement to service connection for a left foot condition is remanded. Entitlement to service connection for a back condition is remanded. Entitlement to service connection for a right knee condition is remanded. Entitlement to service connection for a left knee condition is remanded. FINDINGS OF FACT 1. In a June 2015 rating decision, the Agency of Original Jurisdiction (AOJ) denied service connection for a psychiatric condition to account for hearing voices. 2. Additional evidence was received during the one-year appeal period following the June 2015 rating decision. 3. Evidence added to the record since the final June 2015 rating decision includes January 2021 hearing testimony that describes a one month stay in a military hospital for mental health issues during service in 1975. CONCLUSIONS OF LAW 1. The June 2015 rating decision that denied the claim for entitlement to service connection for condition to account for hearing voices did not become final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103. 2. New and material evidence has been received to reopen the Veteran's claim for service connection for condition to account for hearing voices. 38 U.S.C. §§ 5107, 5108; 38 C.F.R. §§ 3.102, 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from June 1972 to July 1984. This case comes before the Board of Veterans' Appeals (Board) on an appeal from a June 2015 and a February 2019 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned at a Board videoconference hearing in January 2021, and a copy of the hearing transcript has been obtained and associated with the record. 1. The application to reopen a claim for entitlement to a condition to account for hearing voices Where a claim has been finally adjudicated, a claimant must present new and material evidence to reopen the previously denied claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). New evidence is evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156 (a). Material evidence is evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence cannot be either cumulative or redundant of the evidence of record at the time of the last prior final denial and must raise a reasonable possibility of substantiating the claim. Id. A claim remains pending where VA fails to fulfill a statutory duty under 38 C.F.R. § 3.156 (b) to determine the character of evidence submitted within the one-year appeal period following issuance of a rating decision. Beraud v. McDonald, 766 F.3d 1402, 1406 (Fed. Cir. 2014). VA then has an obligation to decide whether the evidence received is new and material to allow finality to attach. Id. VA medical records generated in the one-year period following a rating decision are constructively received by the adjudicator. See Lang v. Wilkie, 971 F.3d 1348, 1355 (2020). The RO denied the Veteran's claim for entitlement to service connection for condition to account for hearing voices in a June 2015 rating decision. The Veteran did not file a notice of disagreement with this decision; however, additional evidence, comprised of private treatment records, were associated with the claims file during the one-year period following the June 2015 decision. The RO did not issue a rating decision considering whether the additional private treatment records were new and material. As such, the decision is not final. 38 U.S.C. § 7105; Beraud, 766 F.3d at 1406; 38 C.F.R. § 20.1103. Nonetheless, the Board must consider whether new and material evidence has been received. Beraud at 1406. Since the June 2015 rating decision, the Veteran testified at a January 2021 Board hearing. The Veteran testified that during service, he had a month-long hospital stay where he was told he suffered from paranoid schizophrenia. His wife testified that during his service, the Veteran showed signs of paranoia, irritability, and aggression. She also testified that he had sought treatment many times during and after service. The Board finds that the new evidence added to the record since the prior final decision relates to an unestablished element, a nexus opinion linking his current mental health symptoms to service, raises a reasonable possibility substantiating the Veteran's service connection claim, and would trigger a duty to provide an examination under 38 C.F.R.§ 3.159 (c)(4)(iii). The Veteran's application to reopen the claim for entitlement to service connection for a condition to account for hearing voices is granted. REASONS FOR REMAND 2. Entitlement to service connection for a psychiatric condition to account for hearing voices is remanded. The Veteran appeals the denial of service connection for a psychiatric condition to account for hearing voices. The Veteran underwent a VA examination in January 1985. During the examination, he told the examiner that he realized he is paranoid and gets irritable at others for no reason. He also told the doctor that during service he had a nervous breakdown spending a month in the hospital in 1975, and that two years prior, he was given some tests and was diagnosed with anxiety. He said his nerves had been worse the last few days and he was experiencing a lot of situational stress, where he would feel nervous and excited at times. A month later in February 1985, he told the examiner that his previously mentioned problems were due to his readjustment to civilian life, a death in his family, and his new job. The Veteran testified at his January 2021 Board hearing that he first received treatment for mental health while he was stationed in Germany in 1975. He said he was seeing and hearing things, and there were a lot of things going on he did not understand. His wife testified that he still suffers from paranoia and over the years she has left and come back because of it. She also remembers him getting a diagnosis of paranoid schizophrenia. The Board finds that the Veteran should be afforded a VA examination as he has met the McLendon standard. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The examination should identify any and all mental health diagnoses the Veteran suffers and provide an opinion as to the nature and etiology of each diagnosis. The Veteran also contends that his service medical records are incomplete. Specifically, his records show he was a patient at the 97th General Hospital in Germany, and that he spent a month at MEDHOL Company, USA MEDDAC in Fort Bragg, NC from December 7, 1975 to January 16, 1976. On remand, the AOJ should undertake all necessary development to associate any outstanding service medical records, to include the Veteran's stays in the hospital. 3. Entitlement to service connection for a left foot condition is remanded. The Veteran appeals the denial of service connection for his left foot condition. He testified that his foot pain began in service and has continued since. The Veteran had a private x-ray done in May 2013 at Wake Forest Baptist Medical Center, and it showed he has pes planus of the left foot and midfoot arthritis. Further, his service treatment records have numerous complaints and a diagnosis for pes planus during service. Those complaints include in October 1976, the Veteran complained about bilateral swollen feet radiating from his arches to his ankles, with an onset about a year before he was seen. At this same clinic visit, he was diagnosed with bilateral pes planus. Then in June 1980, the Veteran again complained about his sore feet, noting he had a history of sore feet since 1976. Finally, on his July 1984 separation examination, it is noted the Veteran suffered from mild pes planus. He also complained about his foot pain in January 1985, during a VA examination. Accordingly, the Board finds that the low threshold of the McLendon standard has been met in this instance, and the Veteran should be afforded a VA examination to determine the nature and etiology of his left foot condition. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). 4. Entitlement to service connection for back condition is remanded. The Veteran appeals the denial of service connection for his back condition. In May 2017, he had an x-ray done and was diagnosed with mild degenerative disc disease and mild spondylosis. At his Board hearing, the Veteran testified that his back pain began in service and that he has suffered lower back pain since service. His wife also testified that he has consistently complained about back pain since service. The Veteran's service treatment records have several complaints for back pain and a diagnosis for lower back strain. Those complaints include in July 1976, he was seen for back pain; in January 1983, he said he had back pain after a motor vehicle accident; in April 1983, the Veteran was seen for falling twice at work and down the stairs and was diagnosed with lower back strain. After service in January 1985, he told the doctor he suffered from lower back pain and again was diagnosed with lower back strain. In July 2015, a private physician statement was added to the file. The doctor opined that one cannot say exactly how long this condition existed prior to the date of diagnosis or definitively state its cause. However, it is as likely as not, that the Veteran's in-service back, bilateral knee, and bilateral foot conditions mark the onset, cause, or contribute to his current back, bilateral knee, and bilateral foot conditions. The Board finds that the Veteran meets the standard for McLendon, and he should be afforded a VA examination to determine the nature and etiology of his back condition. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The examiner should consider the Veteran's history of back pain in service and his complaints of back pain since service. 5. Entitlement to service connection for a right knee condition is remanded. The Veteran contends his right knee condition is related to his in-service injury. He also claims his right knee condition is secondary to his left foot condition. The Veteran has a current diagnosis for patellofemoral syndrome and patellar tendonitis, and possible osteochondroma of his right knee. The Veteran reported in January 1985 that he suffered an injury in service when a five-gallon water can fell and hit the back of his knees. The Veteran testified that he suffered pain and problems with his right knee in service. He said that his knee issues never got better and that since service he has had a grinding in his knees. His wife testified that his injuries have worsened over time, and that he has complained of his knee pain since service. The Board finds that the McLendon requirements are met, and the Veteran should be afforded an examination for his right knee condition. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The examiner is asked to diagnose the Veteran with any and all right knee conditions, to opine as to the nature and etiology of each disability, and to opine as to whether his right knee condition is secondary to his left foot condition. 6. Entitlement to service connection for a left knee condition is remanded. The Veteran appeals the denial of service connection for his left knee condition. The Veteran has a diagnosis of degenerative joint disease (DJD) in his left knee. He testified that his knee problems began in service and he never got treatment because he was told to, "suck it up." The Veteran's service treatment records document several complaints and treatments for left knee issues. In March 1983, it is noted that the Veteran had complaints of knee pain for the prior seven months and was diagnosed with patellofemoral syndrome. In April 1984, he was seen for complaints for left knee pain, and the examiner questioned whether he suffered from chondromalacia. Again, after service in January 1985, the Veteran complained of suffering left knee pain. The Veteran underwent a VA examination in December 2018 for his left knee condition. The examiner confirmed the DJD diagnosis of the left knee. The Veteran said his onset of pain was in service when he fell in the Fall of 1982, when a five-gallon water can fell and hit the back of his knees. He also said that the pain has continued and worsened over the years. The examiner failed to provide an opinion or rationale concerning the nature and etiology of the Veteran's left knee condition. In February 2019, another review of the Veteran's records was completed, and an examiner provided an opinion as to his left knee condition. He opined that the Veteran's left knee condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. His rationale was that the Veteran has a current diagnosis of left knee mild DJD and that his service treatment records indicate acute episodes of patellofemoral syndrome, but that there was no reference that the condition was chronic in nature. However, the examiner failed to address the nature and etiology of the Veteran's current left knee condition or address the Veteran's claims that his knee condition began in service and has continued to get worse since his in-service injury. Therefore, a remand is necessary to obtain an addendum opinion as to the nature and etiology of the Veteran's left knee condition and to address his contentions and complaints of knee pain in service and since service. The matters are REMANDED for the following actions: 1. Obtain and associate all relevant outstanding VA treatment records identified by the Veteran, to include the Veteran's hospital stay at 97th General Hospital in Germany on December 3, 1975 and at MEDHOL Company, USA MEDDAC in Fort Bragg, NC from December 7, 1975 to January 16, 1976. 2. Schedule the Veteran for a VA examination by an appropriate clinician to determine the nature and etiology of any mental health disorders, to include anxiety and paranoid schizophrenia. The examiner is asked to provide responses to the following: (a.) Identify (by diagnosis) all mental health disabilities shown or present during the pendency of the appeal, to include anxiety and paranoid schizophrenia. (b.) Whether it is at least as likely as not (50 percent or better probability) that the Veteran's mental health conditions had their onset during active duty service, or are otherwise related to service? 3. Schedule the Veteran for a VA examination by an appropriate clinician to determine the nature and etiology of the Veteran's left foot condition, to include pes planus. The examiner is asked to provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that the Veteran's left foot condition had its onset during active duty service or is otherwise related to service. The examiner is asked to address the Veteran's contention his left foot condition began in service and has continued to progressively get worse. 4. Obtain an addendum opinion from the appropriate clinician to determine the nature and etiology of the Veteran's back condition. If the examiner finds an examination is necessary, then schedule the examination. The examiner is asked to opine as to whether it is at least as likely as not (50 percent or better probability) that the Veteran's back condition had its onset during active duty service or is otherwise related to service. The examiner is asked to address the Veteran's contention his back condition began in service and has continued to progressively get worse. 5. Schedule the Veteran for a VA examination by an appropriate clinician to determine the nature and etiology of his bilateral knee conditions. The examiner is asked to provide responses to the following: (a.) Whether it is at least as likely as not (50 percent or better probability) that his left and right knee conditions had their onset during active duty service or are otherwise related to service? (b.) Whether it is at least as likely as not (50 percent or better probability) that the Veteran's right knee condition was caused by his left foot condition. The examiners must review the entire claims folder, including a copy of this remand. A complete rationale must be provided for all opinions expressed. If the requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why an opinion would be speculative J. B. FREEMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Doerfler, 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.