Citation Nr: 21040044 Decision Date: 07/02/21 Archive Date: 07/02/21 DOCKET NO. 20-04 199 DATE: July 2, 2021 ORDER Since there is new and material evidence, the petition to reopen the claims of entitlement to service connection for right knee and low back disabilities is granted. However, because there conversely is not new and material evidence, the petition to reopen the claim for service connection for a left elbow disability is denied. REMANDED The claims of entitlement to service connection for right knee and low back disabilities are remanded. The claims of entitlement to service connection for an acquired psychiatric disorder, including depression, and for Non-Hodgkin's Lymphoma (NHL) also are remanded. FINDINGS OF FACT 1. Additional evidence received since prior, final and binding, regional office (RO) decisions considering and denying service connection for a right knee disability (most recently in August 2008) and a low back disability (most recently in October 2013) is not cumulative or redundant of the evidence considered in those earlier decisions, relates to unestablished facts necessary to substantiate these claims, and raises a reasonable possibility of substantiating them. 2. But the additional evidence received since a prior, final and binding, RO decision (in December 1974) denying service connection for a left elbow disability conversely is cumulative or redundant of the evidence considered in that earlier decision, does not relate to an unestablished fact necessary to substantiate this claim, and does not raise a reasonable possibility of substantiating it. CONCLUSIONS OF LAW 1. There is new and material evidence to reopen the claims of entitlement to service connection for right knee and low back disabilities. 38 U.S.C. §§ 5107, 5108, 7105; 38 C.F.R. §§ 3.104(a), 3.156. 3.160(d), 20.200, 20.1103 (2018). 2. However, there contrarily is no new and material evidence to reopen the claim of entitlement to service connection for a left elbow disability. Id. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the Army from June 1967 to May 1969. This appeal to the Board of Veterans' Appeals (Board) originates from October 2013 and March 2016 rating decisions of an RO. 1. New and material evidence having been received, the claims of entitlement to service connection for right knee and low back disabilities are reopened. A claimant may reopen a finally adjudicated claim by submitting new and material evidence. 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 (2018). These claims were previously considered and denied in unappealed and therefore final and binding rating decisions issued in December 1974 (right knee), August 2008 (low back and right knee), and October 2013 (low back). In deciding whether new and material evidence has been submitted, the Board looks to the evidence submitted since the last final and binding denial of the claim on any basis, so irrespective of whether on the underlying merits or, instead, a prior petition to reopen the claim. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). Thus, this means that as a "starting point" the Board looks to the evidence submitted or otherwise obtained since August 2008 as concerning the claim for a right knee disability and since October 2013 as concerning the claim for a low back disability because that was when these claims were most recently considered, denied, and not appealed. That said, by way of background to give this consideration some context, the Veteran initially was denied service connection for his right knee condition in December 1974. He applied again for service connection for both conditions (so for both his right knee and low back disabilities) in January 2008 and was denied in an unappealed and, therefore, final and binding August 2008 rating decision. He applied again for both conditions in April 2010 and was denied in an October 2013 rating decision. In December 2013, he applied yet again for service connection for his right knee disability but not for his low back disability. Before receiving a rating decision in response to his December 2013 claim, he submitted a supplemental claim in November 2015, including for both his low back and right knee disabilities, and his claims were denied in a March 2016 rating decision. Records show service connection initially was denied for these right knee and low back disabilities because the Veteran's service treatment records (STRs) did not show in-service treatment for either condition. More recent treatment records, however, confirm he since has received diagnoses of lumbar spondylolysis with spinal stenosis (low back disability) and right knee arthritis (right knee disability); thus, there is no disputing he has these claimed disabilities. And most relevant to also showing he has these disabilities because of his service, in other words, that there also is the required "nexus", in May 2016 the Veteran submitted a lay statement maintaining he had injured his right knee and low back during his service when falling off a rocket launcher while stationed in Germany. He is competent to report falling off a rocket launcher and injuring his right knee and low back, and the Board must at least preliminarily accept this allegation as true (presume it is credible) albeit only for the limited purpose of determining whether this evidence is new and material to these claims. Justus v. Principi, 3 Vet. App. 510, 513 (1992). But see also Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003) and Duran v. Brown, 7 Vet. App. 216 (1994) ("Justus does not require the Secretary [of VA] to consider the patently incredible to be credible" or to blindly accept, as true, assertions that are beyond the competence of the person making them.) Additionally, the Veteran's Army personnel records confirm that he spent time as a missile crewman in his military occupational specialty (MOS) and that he was stationed overseas in Germany. Thus, there is the required new and material evidence to reopen these claims for service connection for right knee and low back disabilities especially since the U. S. Court of Appeals for Veterans Claims (Veterans Court/CAVC) has explained that the threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly received evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA Secretary's duty to assist or through consideration of an alternative theory of entitlement. Shade at 118. For this very reason, rather than immediately readjudicating these claims on their underlying merits, the Board is first remanding them back to the RO (Agency of Original Jurisdiction (AOJ)) for further needed development. 2. There conversely is not new and material evidence to reopen the claim for service connection for a left elbow disability. This claim was previously considered and denied in an unappealed and therefore final and binding December 1974 rating decision because there was no evidence then of record of a chronic (meaning permanent) left elbow disability either during or since the Veteran's service. In other words, although a left elbow abrasion was noted in his STRs, there was no evidence of any disability post-service as a result or consequence, including owing to the incident specifically precipitating the sustaining of that abrasion in service. While the Veteran submitted a statement in May 2016 indicating he had injured his left elbow in service in the fall from the rocket launcher, there continues to be no evidence of a current left elbow disability, which is the most fundamental requirement of any claim for service connection, regardless of specific disability. Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in disability. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. In the absence of proof of present disability there can be no valid claim because, for all intents and purposes, there is no current disability to, in turn, relate or attribute to the Veteran's military service. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). A current disability means a disability shown by competent and credible evidence to exist. Chelte v. Brown, 10 Vet. App. 268 (1997). At the very least, the evidence must show that, at some point during the appeal period, the Veteran has the disability for which benefits are being claimed. McClain v. Nicholson, 21 Vet. App. 319 (2007) (a claim for service connection may be granted if a diagnosis of a chronic disability was made during the pendency of the appeal, even if the most recent medical evidence suggests the disability has resolved); see also Romanowski v. Shinseki, 26 Vet. App. 289, 294 (2013) (even accepting a diagnosis preceding a claim, if contemporaneous to it). Consequently, because the evidence the Veteran submitted neither relates to an unestablished fact necessary to substantiate his claim nor raises a reasonable possibility of substantiating his claim, it is not new and material to the claim and, thus, not reason to reopen the claim. REASONS FOR REMAND The claims of entitlement to service connection for a right knee disability, low back disability, an acquired psychiatric disorder, including depression, and for NHL are remanded. Rather than being immediately decided, these claims are being remanded for further needed development, including for VA examinations and/or addendum medical opinions concerning the etiologies of these claimed disabilities particularly in terms of whether related or attributable to the Veteran's military service. The Board sees that the Veteran's claims for service connection for NHL and posttraumatic stress disorder (PTSD) were initially denied in an October 2013 rating decision. He then submitted additional evidence in September 2014 in the form of a lay statement describing a PTSD stressor, so within a year of the denial of this claim (i.e., during the one-year period he had to appeal that decision). Moreover, he submitted a new application for service connection for several disabilities, including for PTSD and NHL, in December 2013, so only two months after the October 2013 rating decision denying these claims. Those submissions were tantamount to a timely Notice of Disagreement (NOD) with the denial of these claims. Notably, prior to March 24, 2015, NODs were not required to be submitted on an official VA form and did not need to contain any special wording, only instead express disagreement with the RO's decision and intention to contest it. 38 C.F.R. § 20.201 (2014); 79 Fed. Reg. 57660. See also Palmer v. Nicholson, 21 Vet. App. 434, 437 (2007) ("VA has always been, and will continue to be, liberal in determining what constitutes a [NOD]."). According to the version of 38 C.F.R. § 20.201 in effect at that time, as long as the claimant submitted a timely "written communication expressing dissatisfaction or disagreement with an adjudicative determination by the [AOJ] and a desire to contest the result," such communication would constitute a valid NOD. Accordingly, the Board does not consider the October 2013 rating decision to be final and binding, meaning, it is unnecessary to reopen the Veteran's claims for service connection for NHL and PTSD because they remained pending. With regards to the Veteran's NHL claim, the Board sees that the aforementioned October 2013 rating decision denied this claim because he had not been presumptively (or otherwise) exposed to an herbicide during his service. He was afforded a VA examination in July 2013 during which an examiner, who did not have access to the Veteran's DD Form 214, opined that the Veteran's condition was as likely as not related to herbicide exposure. Unfortunately, it has not been confirmed the Veteran was exposed to an herbicide during his service, although NHL is one of the conditions presumptively associated with exposure to herbicides (and, more specifically, the dioxin in Agent Orange). 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a), 3.309(e). However, the Veteran's more recent May 2016 written statement indicates he is additionally contending he developed the NHL also as a result of exposure to nuclear radiation while guarding nuclear missiles in Germany. And while the Board notes that NHL is not among the radiogenic diseases listed in 38 C.F.R. § 3.311, it is still possible to show the required correlation of the NHL to his service alternatively with proof of direct (as opposed to presumptive) causation. See Combee v. Brown, 34 F.3d 1039 (Fed Cir. 1994). Thus, an addendum medical opinion is needed addressing this additional contention. Finally, the Veteran's claim for PTSD was denied in October 2013 because he did not then have the required diagnosis of this condition. See 38 C.F.R. § 3.304(f) (explaining there must be a diagnosis of this condition in accordance with 38 C.F.R. § 4.126(a), meaning in accordance with the Diagnostic and Statistical Manual of Mental Disorders (DSM)). Treatment records, however, note that he has received a diagosis, instead, of depression. In his May 2016 NOD, he also indicated that he had experienced fear and stress while guarding nuclear missiles. Thus, because he has received an alternative psychiatric diagnosis of depression, and has indicated he experienced extreme stress and fear while guarding nuclear missiles in Germany, all diagnoses must be considered in determining whether he is entitled to service connection for his mental illness. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Accordingly, these claims are REMANDED for the following action: 1. Schedule the Veteran for VA examinations for his right knee disability, low back disability, and acquired psychiatric disorder (to include depression). After examining the Veteran and considering all relevant medical and lay evidence, the examiner is asked to respond to the following: Does the Veteran have an acquired psychiatric disorder, including depression (even if not PTSD), which is at least as likely as not related or attributable to his military service, including especially owing to the fear and stress he says he experienced while guarding nuclear missiles in Germany? Does the Veteran have a right knee disability and/or low back disability that is at least as likely as not related or attributable to his service including especially to the incident in service during which he fell off a rocket launcher? Provide rationale for the opinions, regardless of whether favorable or unfavorable to these claims, preferably citing to evidence in the file supporting conclusions and/or accepted medical authority. 2. Also, forward the claims file to an appropriate VA examiner for an addendum opinion concerning whether it is at least as likely as not (50 percent or greater probability) the Veteran's NHL is related or attributable to his military service including to the claimed exposure to nuclear radiation he says occurred while guarding nuclear missiles in Germany? [NOTE: Whether the Veteran actually needs to be re-examined (meaning undergo another in-person examination) to provide this additional medical comment on this determinative issue of causation is left to the discretion of the clinician designated to provide this addendum opinion.] To assist in making this important determination, the claims file, including a complete copy of this remand, must be made available to the examiner for review and consideration of the relevant history. When responding, whether favorably or unfavorably, it is essential the examiner provide explanatory rationale preferably citing to evidence in the file supporting conclusions and/or accepted medical authority. KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. B. Kucera 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.