Citation Nr: 22057785 Decision Date: 10/14/22 Archive Date: 10/14/22 DOCKET NO. 17-62 481A DATE: October 14, 2022 ORDER New and material evidence having been received, the claim of entitlement to service connection for an acquired psychiatric disorder, to include major depressive disorder (MDD) and posttraumatic stress disorder (PTSD), is reopened. REMANDED Entitlement to service connection for a left hip disorder is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include MDD and PTSD, is remanded. Entitlement to a rating greater than 10 percent for a meniscal tear and degenerative joint disease of the right knee is remanded. Entitlement to a rating greater than 10 percent for trochanteric bursitis of the right hip is remanded. Entitlement to a rating greater than 0 percent for limitation of extension of the right hip is remanded. FINDINGS OF FACT 1. The AOJ last denied the Veteran's claim for service connection for an acquired psychiatric disorder in September 2013. The Veteran did not appeal the denial, nor was new and material evidence received within one year of the decision. Therefore, the September 2013 rating decision became final. 2. Evidence received since the final September 2013 rating decision is not cumulative or redundant of the evidence of record, does relate to an unestablished fact, and does raise the possibility of substantiating the Veteran's claim of entitlement to service connection for an acquired psychiatric disorder. CONCLUSIONS OF LAW 1. The September 2013 rating decision denying entitlement to service connection for an acquired psychiatric condition is final. 38 U.S.C. § 7105(c); 38 C.F.R. § 3.104. 2. The criteria to reopen the claim for service connection for an acquired psychiatric disorder have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from September 1972 to August 1975 and from March 2005 to October 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2015 rating decision of an Agency of Original Jurisdiction (AOJ) of the U.S. Department of Veterans Affairs (VA) The Veteran testified before the undersigned in January 2022. A transcript of the hearing is in the claims file. Issue 1: Whether new and material evidence has been received to reopen the claim of entitlement to service connection for an acquired psychiatric disorder New and Material Evidence General Under 38 U.S.C. § 7104(b), the Board has no jurisdiction to consider a claim based on the same factual basis as a previously disallowed claim. King v. Shinseki, 23 Vet. App. 464 (2010); see DiCarlo v. Nicholson, 20 Vet. App. 52, 55 (2006) (holding that res judicata generally applies to VA decisions). However, the finality of a previously disallowed claim can be overcome by the submission of new and material evidence. See 38 U.S.C. § 5108. New evidence means evidence not previously submitted to agency decision makers. Material evidence means evidence that, by itself or when considered with previous evidence, 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 it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Merits The AOJ last denied the Veteran's claim for service connection for an acquired psychiatric disorder in September 2013. It denied the claim because: The veteran's service medical records indicate that he was diagnosed with recurrent major depression. This diagnosis was noted to have been made on April 7, 2005 after he had been on active-duty status for a total of 13 days. The DA Form 2173 indicated that the veteran "came on active duty with major depression. He has become worse on AD but it is not related to his service." The veteran does not describe the full spectrum of symptomatology that meets the criterion for the DSM-IV diagnosis of PTSD. He does not meet DSM-IV criteria for PTSD. The claimed condition, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. The Veteran did not appeal the denial nor was new and material evidence received within one year of the decision. Therefore, the September 2013 rating decision became final. Evidence received since the final September 2013 rating decision is not cumulative or redundant of the evidence of record, does relate to an unestablished fact, and does raise the possibility of substantiating the Veteran's claim of entitlement to service connection for an acquired psychiatric disorder. At the time of the AOJ's September 2013 denial, the record consisted, as relevant here, of service treatment records, service personnel records, and VA examinations. In March 2015, the Veteran again claimed service connection for an acquired psychiatric disorder. In October 2016, the Veteran submitted a PTSD stressor statement. In December 2017, the Veteran submitted a psychiatric Disability Benefits Questionnaire (DBQ). In December 2018, the Veteran submitted a March 1973 obituary for R.P., a Navy air apprentice who served aboard the USS Constellation. In January 2022, the Veteran testified before the undersigned. The October 2016 stressor statement, the December 2017 DBQ, the March 1973 obituary, and the January 2022 testimony are new. They are also material because they help substantiate the claim of service connection for an acquired psychiatric disorder based on a reason VA previously denied them, i.e., that his first period of service did not cause his acquired psychiatric disorder. Reopening of the Veteran's claim for service connection for an acquired psychiatric disorder based on the receipt of new and material evidence is therefore warranted. Shade v. Shinseki, 24 Vet. App. 110 (2011) (holding that the phrase "raises a reasonable possibility of substantiating the claim" in applicable regulation as "enabling rather than precluding reopening"). REASONS FOR REMAND Remand is warranted for five issues. Left hip disorder In April 2015, the AOJ examined the Veteran for this claim. The examiner opined that the Veteran's service-connected right hip disorder did not cause his left hip disorder. However, the examiner did not opine on whether the right hip disorder aggravates the left hip disorder. Therefore, remand is warranted for a new examination. Acquired psychiatric disorder, to include MDD and PTSD The Veteran served aboard the USS Constellation from December 1972 to August 1975. In October 2016, the Veteran submitted a PTSD stressor statement. He identified four potential stressors from his service on the USS Constellation a) "major fire onboard engine room ship filled with smoke 7 sailors injured, ship dead in water" b) "An acquaintance FN Perez sucked in by A-7 intake died instantly" c) "Pilot shot down" d) "Plane failed to make landing, ended in ocean." In December 2018, the Veteran provided more evidence for the second stressor. He changed the name of the deceased, providing a March 1973 obituary for R.P, a Navy air apprentice who served aboard the USS Constellation. In February 2019, the AOJ submitted a request to the Joint Services Records Research Center. The request is not viewable within the claims file. Moreover, it does not appear the AOJ received a response to the request. In January 2022, the Veteran testified that the first stressor the fire predated R.P.'s death. Therefore, if it occurred, it was between December 1972 and March 1973. Remand is necessary for the AOJ to research the four stressors contained in the October 2016 statement. Additionally, remand is warranted for a VA examination to determine the nature and etiology of the Veteran's acquired psychiatric disorder. Right knee disorder The AOJ examined the Veteran for this claim in April 2015. During the January 2022 hearing, he testified that this disorder had worsened since the April 2015 examination. Therefore, the Board finds the April 2015 examination does not reflect the current severity of the right knee disorder, and it will remand for a new examination before it decides the appeal. Right hip - trochanteric bursitis and limitation of extension The AOJ examined the Veteran for this claim in April 2015. During the January 2022 hearing, he testified that this disorder had worsened since the April 2015 examination. Therefore, the Board finds the April 2015 examination does not reflect the current severity of the disorder, and it will remand for a new examination before it decides the appeal. The matters are REMANDED for the following action: 1. Ask the Veteran to identify any private treatment records that he has not previously submitted or requested VA to obtain. If the Veteran responds, attempt to obtain these records. 2. Obtain VA treatment records from the Orlando VAMC and associated clinics from May 2019 to present. 3. Research the four claimed stressors as detailed in the October 2016 PTSD stressor statement. Document all efforts in the claims file. 4. Schedule the Veteran for an examination to determine the nature and etiology of his left hip disorder. The examiner must review the entire claims file to include this Remand. The medical professional must opine on the following: a) Is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's service-connected right hip disorder CAUSED his left hip disorder? Why or why not? b) Is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's service-connected right hip disorder AGGRAVATES his left hip disorder? Why or why not? In answering question (b), the examiner is reminded that aggravation is defined as any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease. The examiner is advised that a finding that the Veteran's left hip disorder was aggravated beyond the normal progression due to a service-connected disability, to does not require evidence of permanent worsening and may encompass any additional impairment in earning capacity resulting from an already service-connected condition. 5. Schedule the Veteran for an examination to determine the nature and severity of his right hip disorder. The examiner must review the entire claims file to include this Remand. 6. Schedule the Veteran for an examination to determine the nature and severity of his right knee disorder. The examiner must review the entire claims file to include this Remand. 7. Schedule the Veteran for an examination to determine the nature and etiology of his acquired psychiatric disorder. The examiner must review the entire claims file to include this Remand. In addition to the customary examination, the examiner must opine. The medical professional must opine on the following: a) For each acquired psychiatric disorder diagnosed, as well as the previously diagnosed PTSD and MDD, is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the acquired psychiatric disorder began during, or was otherwise caused by, service? Why or why not? Tiffany Dawson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Sopko, 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.