Citation Nr: 1632417 Decision Date: 08/16/16 Archive Date: 08/24/16 DOCKET NO. 13-03 190 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for left elbow joint pain. 2. Entitlement to service connection for right elbow pain. 3. Entitlement to service connection for left hip pain. 4. Entitlement to service connection for right hip pain. 5. Entitlement to service connection for left knee pain. 6. Entitlement to service connection for right knee pain. 7. Entitlement to service connection for left shoulder pain. 8. Entitlement to service connection for right shoulder pain. 9. Entitlement to service connection for left foot/toe pain. 10. Entitlement to service connection for right foot/toe pain. 11. Entitlement to service connection for myalgia. 12. Whether new and material evidence has been presented to reopen the claim for service connection for left hand/finger pain. 13. Whether new and material evidence has been presented to reopen the claim for service connection for right hand/finger pain. 14. Entitlement to an increased evaluation for tension headaches, currently evaluated as 10 percent disabling. 15. Entitlement to a total disability evaluation based on individual unemployability (TDIU) due to service-connected disability. REPRESENTATION Appellant represented by: Stacey Penn Clark, Attorney ATTORNEY FOR THE BOARD L. M. Barnard, Senior Counsel INTRODUCTION The Veteran served on active duty with the Navy from September 1981 to September 2001. This appeal arose before the Board of Veterans' Appeals (Board) from May 2010 and September 2103 rating decisions of the St. Petersburg, Florida Department of Veterans Affairs (VA), Regional Office (RO). The issues of entitlement to service connection for joint pain (elbows, hips, knees, shoulders, feet and myalgia) and the claim for an increased evaluation for tension headaches are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The RO denied entitlement to service connection for left hand/finger pain in July 2005 and this decision is final. 2. The RO denied entitlement to service connection for right hand/finger pain in September 2005 and this decision is final. 3. Evidence received since the July and September 2005 decisions does not relate to the basis for the prior denial. CONCLUSIONS OF LAW 1. The July 2005 decision that denied entitlement to service connection for left hand/finger pain is final. 38 U.S.C.A. §§ 7103, 7104 (West 2014); 38 C.F.R. §§°3.156(b), 20.1100(a) (2015). 2. The September 2005 decision that denied entitlement to service connection for right hand/finger pain is final. 38 U.S.C.A. §§ 7103, 7104 (West 2014); 38 C.F.R. §§ 3.156(b), 20.1100(a) (2015). 3. The evidence received since the July 2005 RO decision is not new and material, as it does not raise a reasonable possibility of substantiating the claim for service connection for left hand/finger pain. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2015). 4. The evidence received since the September 2005 RO decision is not new and material, as it does not raise a reasonable possibility of substantiating the claim for service connection for right hand/finger pain. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA The VCAA describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). The notice requirements were met in this case by a letter sent to the Veteran in May 2013. See 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2014); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records and VA treatment records are in the file. The VA has also obtained private treatment records and associated them with the claims file. As such, the Board finds the duty to assist with obtaining medical records has been satisfied. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. The case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. The Board notes that the Veteran has not been afforded a VA examination in relation to her claim for service connection for bilateral hand/finger pain. See 38 C.F.R. § 3.159(c)(4). At the time of the July and September 2005 rating decisions, no examinations were deemed necessary given that there was no indication in the service treatment records of any complaints concerning either hand. As such, there was no disease or injury in service to which any post-service complaints could be related. The September 2013 VA examination did note a sensory examination of the upper extremities and flexion of the fingers; however, this was done in order to assess any neurological effects resulting from a cervical spine disorder and was not an examination relevant to any disorders of the hands/fingers themselves. No further evaluation of the hands was done. See 38 C.F.R. § 3.159(c)(4)(C)(iii). Since the Board has determined that no new and material evidence has been submitted to reopen these claims (see below), further VA examination is not required. 38 C.F.R. § 3.159(c)(4)(C)(iii). In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103 and 5103A; 38 C.F.R. § 3.159. Applicable laws and regulations Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It would also include statements contained in authoritative writings such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1) (2015). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2) (2015). In determining whether statements submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board is not required to accept an appellant's uncorroborated account of his active service experiences. Wood v. Derwinski, 1 Vet. App. 190 (1991). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). When evaluating the evidence of record, the Board must assess the credibility and probative value of the evidence, and, provided that it offers an adequate statement of reasons or bases, the Board may favor one medical opinion over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). Generally, a Board decision is final unless the Chairman of the Board orders reconsideration. See 38 U.S.C.A. §§ 7103(a) , 7104(a); 38 C.F.R. § 20.1100(a). An exception to this rule is 38 U.S.C.A. § 5108, which provides that 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. New and material evidence is defined as evidence not previously submitted to agency decisionmakers which bears directly and substantially upon the specific matter under consideration; such new and material evidence can be neither cumulative nor redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The Board will generally presume the credibility of the evidence in determining whether evidence is new and material. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). Significantly, however, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board. Anglin v. West, 203 F.3d 1343 (2000). In deciding whether new and material evidence has been submitted, the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). 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). Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by peacetime service. 38 U.S.C.A. § 1110; 38 C.F.R. §°3.303(a). In general, service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A disease must be shown to be of a chronic nature in service, or if not chronic, then seen in service with continuity of symptomatology demonstrated after discharge from service. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488,494- 97 (1997). Disorders diagnosed after discharge may still be service-connected if all the evidence, including pertinent service records, establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). For the showing of chronic disease in service, there are required a combination of manifestations sufficient to identify a disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. 38 C.F.R. § 3.303(b). Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned. Id. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. Id. The continuity and chronicity provisions of 38 C.F.R. § 3.303(b) only apply to the chronic diseases enumerated in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), overruling Savage v. Gober, 10 Vet. App. 488, 495-96 (1997) (applying 38 C.F.R. § 3.303(b) to a chronic disease not listed in 38 C.F.R. §°3.309(a) as "a substitute way of showing in-service incurrence and medical nexus.") Arthritis is listed among the chronic diseases in 38 C.F.R. § 3.309(a), and may be presumed to have been incurred in service if manifest to a compensable degree within one year from discharge from service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307 are also satisfied. 38°U.S.C.A. § 1112; 38 C.F.R. § 3.309(a). The Veteran has a diagnosis of osteoarthritis of the hands. As such, the provisions relating to compensation for disabilities occurring in Persian Gulf War veterans do not apply. 38 U.S.C.A. § 1117. The Veteran has alleged that she has osteoarthritis of the hands that should be service-connected. While the post-service treatment records did not document this condition until November 2002 (some 14 months after her release from service), she has stated that she had begun to suffer from pain and stiffness in the hands while still on active duty. She stated that she had been told that this was due to an arthritic condition. Therefore, she believes that service connection is warranted. At the time of the July 2005 (left hand) and September 2005 (right hand) decisions, the evidence of record included the Veteran's service treatment records and post-service VA clinic records. The service treatment records noted no complaints of, treatment for, or diagnosis of any disorder of the hands/fingers. Osteoarthritis of the hands was not noted until November 2002, some 14 months after her release from service. She specifically alleged the onset of hand pain in service. See, e.g., Written statement received in February 2005. By decision dated July 2005, the RO denied service connection for osteoarthritis of the left hand on the basis that osteoarthritis did not manifest in service, did not manifest to a compensable degree within one year of service, and was not shown to be causally related to service. Similarly, a September 2005 RO rating decision denied service connection for osteoarthritis of the right hand on the basis that osteoarthritis did not manifest in service, did not manifest to a compensable degree within one year of service, and was not shown to be causally related to service. By letters dated August 1, 2005 (left hand) and September 9, 2005 (right hand), the Veteran was notified of the rating decisions and of her appellate rights, but she did not submit a notice of disagreement, or new and material evidence, within one year of the notice of decisions. Therefore, the July and September 2005 rating decisions became final. 38 U.S.C.A. §§ 7105; 38 C.F.R. §§ 3.156(b); 3.160(d), 20.200, 20.201, 20.302, 20.1103. The evidence added to the record since the July and September 2005 decisions includes copies of the Veteran's service treatment records, Social Security Administration (SSA) records, VA treatment records developed between October 2001 and September 2013, and a September 2013 VA examination report. These reports continue to show her complaints of pain and stiffness in the hands related to osteoarthritis of the hands/fingers. None of these records relate this condition to her period of service. After reviewing the evidence of record, it is determined that the Veteran has not presented new and material evidence to reopen her claim for service connection for osteoarthritis of both hands/fingers. In this case, the evidence received subsequent to the July and September 2005 RO denials is not new and material. Specifically, it continues to indicate her assertions that her current osteoarthritis of the hands/fingers began in service and continues to this day. Specifically, she stated that the pain and stiffness in her hands began while in service. However, this evidence was considered by the RO in the prior final denials. Therefore, her assertions are not new. The Veteran has specifically raised the theory that her bilateral hand/finger disability is due to her Persian Gulf War service. Notably, the presentation of a new theory does not constitute new and material evidence. Velez v. Shinseki, 23 Vet. App. 199, 206 (2009). Additionally, as the Veteran has a current diagnosis of osteoarthritis, these provisions do not apply as there is a known clinical diagnosis. Additionally, the Veteran has presented no previously unconsidered evidence that osteoarthritis was treated, manifested or diagnosed prior to November 2002. There is no additional evidence that indicates that there is any etiological relationship between her currently diagnosed osteoarthritis and her period of service, nor has she presented new evidence indicating that arthritis of the hands/finger was present to a compensable degree within one year of her separation from service. Basically, the Veteran has not cured the prior evidentiary deficit resulting in the denials of her claims. Therefore, since this evidence does not address the basis of the prior denial, it is not "new and material." Therefore, the request to reopen the claim of entitlement to service connection for bilateral hand/finger osteoarthritis is denied. ORDER New and material evidence not having been submitted to reopen the claim of entitlement to service connection for left hand/finger osteoarthritis, the claims is denied. New and material evidence not having been submitted to reopen the claim of entitlement to service connection for right hand/finger osteoarthritis, the claim is denied. REMAND The Veteran has contended that she has pain in multiple joints (elbows, hips, knees, right shoulder and both feet), as well as myalgia, which she attributes to exposure to toxic substances during her tour in the Persian Gulf aboard the USS John F. Kennedy (an aircraft carrier). Therefore, she believes that service connection is warranted. While the Veteran's DD-214 shows no foreign or sea service, it does note that she received the Sea Service Deployment Ribbon. Moreover, the recommendation for her Navy and Marine Corps Achievement Medal noted that "SW Asia" was one of the geographic regions in which she served. Finally, she served aboard the USS John F. Kennedy during the time frame that she was deployed to the Persian Gulf. Therefore, it is reasonable to conclude that the Veteran could have been exposed to toxic substances during her period of service. VA examined the Veteran in September 2013. This examination evaluated her already service-connected low back and cervical spine disorders. However, very little mention was noted of her other joints, except for demonstrating how the low back and neck disorders affected her upper and lower extremities. The medical history section noted that "no answer was provided" for any of the anatomical regions. Significantly, the examiner noted that "no answer was provided" as to whether there were any diagnosed illnesses for which no etiology was established, which was the same "answer" noted for the question of whether there were any additional signs or symptoms that may represent an undiagnosed illness or a diagnosed medically unexplained chronic multisymptom illness. The examiner noted that there were no undiagnosed illnesses and noted that the Veteran did not have fibromyalgia. It was stated that there was no objective evidence on history (for which no answers had been provided) or on examination of chronic fatigue syndrome, fibromyalgia or irritable bowel syndrome. The examiner stated that "[t]here are no conditions presumptive of Gulf War Environmental Hazards." A separate fibromyalgia examination was performed at which time it was noted that the Veteran had never been diagnosed with fibromyalgia. The Veteran stated that the first time she could recall her joints hurting was after one year of service. She stated that it had begun in her hands, moving to her elbows. All of her joints then began to hurt. The examiner reviewed the service treatment records, noting her treatment for left shoulder pain following a fall the previous evening. A February 2013 VA treatment note was referenced, which noted her complaints of muscle aches. The assessment at that time had included "myalgias." The examiner then stated her fibromyalgia affected her ability to work. No diagnostic studies were done. The examiner offered the following: There is no objective evidence of onset to a chronic right shoulder condition onset in active duty. Hips, hands and knees normal. Left elbow exam normal however left elbow DJD noted on xray 2011. Elbow DJD is not a gulf war presumptive condition. Left foot exam normal however left foot DJD noted on xray 2011. Elbow DJD is not a gulf war presumptive condition. There is no objective evidence of a joint condition in the joints noted above attributable to gulf war environmental exposure. The Board finds that this examination is inadequate. The examiner had been instructed to complete the Gulf War General Medical Examination worksheet. As noted above, however, this worksheet was not adequately completed, noting that no answers had been provided. The examination is also internally inconsistent, noting that the Veteran had never been diagnosed with fibromyalgia but then commenting that fibromyalgia affected her ability to work. There was no reference to the myalgia that had been diagnosed in the post-service treatment records and which is a different and distinct disorder. Specifically, the examiner did not indicate whether the Veteran's various joint complaints could be related to myalgia, a diagnosed disorder. There was no comment on the right elbow or the right foot. As to the left shoulder, the examiner made no determination as to whether any current disorder, if diagnosed, could be etiologically related to the posttraumatic strain sustained in service. The examiner did not specifically address the Veteran's statements that she had begun to experience joint pain while still on active duty. Finally, the opinion is inadequate since it provides no rationale for the conclusory statements made. Based on the above, the Board finds that another VA examination is warranted. See Bowling v. Principi, 15 Vet. App. 1 (2001) (the Board has a duty to return an inadequate examination if a clarification of the evidence is needed in order to render a proper appellate decision). The Veteran has also stated that the disability evaluation assigned to her service-connected tension headaches does not reflect the degree of severity of her condition. Before the merits of this issue can be reached, however, the Board notes that on the January 2013 substantive appeal, the Veteran had requested a Video Conference hearing on this issue. There is no evidence in the record that she has withdrawn this request. Therefore, this issue must be remanded so that a hearing can be scheduled. Finally, the Veteran has raised a claim of entitlement to TDIU. However, this issue must be deferred pending the resolution of her service connection claims, since these decisions could directly impact entitlement to a TDIU. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both issues have been considered). Accordingly, the case is REMANDED for the following action: 1. Request that the Veteran provide the names and addresses of all VA and non-VA health care providers from whom she has sought treatment for her claimed conditions since August 2015. The RO must then obtain all identified records. For any identified private treatment records, the RO must make at least two attempts to obtain them. For any identified VA records, the RO must continue all efforts to obtain the records until it is determined that the records are not available or that further attempts to obtain them would be futile. See 38 C.F.R. § 3.159 (2015). All efforts to obtain any identified records must be documented for inclusion in the claims folder. 2. Once the above development has been completed to the extent possible, afford the Veteran a complete Persian Gulf War Medical Examination (ensuring that the entire worksheet is completed). This examination must include orthopedic and neurologic examinations. The examiner must address the following: a) Does the Veteran have either fibromyalgia or myalgia (that is, are either of these conditions diagnosed disorders)? b) Does the Veteran have any diagnosed disorders affecting the elbows, hips, knees, feet/toes or the right shoulder? c) does the Veteran have joint pain in the elbows, hips, knees, feet/toes or the right shoulder that can be etiologically related to fibromyalgia or myalgia (if either has been diagnosed). d) For any diagnosed disorders of the elbows, hips, knees, feet/toes or the right shoulder, render an opinion as to whether it is at least as likely as not that they had their onset in service. The examiner must address the Veteran's statements that her joint pain began in service in her hands, which then spread to other joints. e) if the elbows, hips, knees, feet/toes or the right shoulder joint complaints cannot be associated with a diagnosed disorder, does the Veteran have (1) an undiagnosed illness, or (2) a medically unexplained chronic multisymptom illness manifested by her joint pain? This examination must also address the Veteran's left shoulder complaints. After reviewing the claims folder, to include the service treatment records (which show that the Veteran strained her left shoulder in a fall in December 1990), the examiner must provide a diagnosis of all present left shoulder conditions. The examiner must then render an opinion as to whether it is at least as likely as not that any currently diagnosed disabilities of the left shoulder are etiologically related to the strain sustained in service. The examiner(s) must review all the evidence of record, to include the service treatment records, and such review must be documented in the examination reports. All special studies deemed necessary must be performed. The examiner(s) must provide a complete rationale for all opinions expressed. If an opinion cannot be rendered without resorting to mere speculation, this must also be fully explained. 3. Advise the Veteran of the importance of reporting to the scheduled VA examinations and of the possible adverse consequences of failing, without good cause, to so report. See 38 C.F.R. § 3.655 (2015). A copy of the notification letter sent to the Veteran advising her of the time, date, and location of the scheduled examinations must be included in the claims folder and must reflect that it was sent to her last known address of record. If she fails to report, the claims folder must indicate whether the notification letter was returned as undeliverable. 4. Once the above-requested development has been completed, readjudicate the Veteran's claim for service connection for joint pain in the elbows, hips, knees, feet, right and left shoulder, and myalgia. If any part of the decision remains adverse to the Veteran, she and her representative must be provided a supplemental statement of the case (SSOC) and an opportunity to respond. The claims folder should then be returned to the Board for further appellate consideration, if otherwise in order. 5. Schedule the Veteran for a Video Conference hearing concerning the issue of entitlement to an increased evaluation for the service-connected tension headaches. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ T. MAINELLI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs