Citation Nr: 18140163 Decision Date: 10/02/18 Archive Date: 10/02/18 DOCKET NO. 15-20 877 DATE: October 2, 2018 ORDER New and material evidence having been received, the application to reopen the claim of service connection for a right elbow disability is granted. REMANDED Entitlement to service connection for a left shoulder disability is remanded. Entitlement to service connection for a right shoulder disability is remanded. Entitlement to service connection for a left elbow disability is remanded. Entitlement to service connection for a right elbow disability is remanded. Entitlement to service connection for a right ankle disability is remanded. FINDINGS OF FACT 1. In a January 1999 rating decision, the Regional Office (RO) denied service connection for epicondylitis of the right elbow (right elbow disability). The Veteran did not file a notice of disagreement (NOD) and no new and material evidence was received within the appeal period. 2. The evidence since the January 1999 rating decision is not duplicative or cumulative of evidence previously of record and it raises the reasonable possibility of substantiating the Veteran’s claim of service connection for a right elbow disability. CONCLUSION OF LAW The criteria for reopening the claim of service connection for a right elbow disability have been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156, 20.302, 20.1103. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active duty military service from July 1976 to June 1995. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a December 2011 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO), which, in pertinent part, denied service connection for degenerative joint disease of the right ankle, lateral epicondylitis of the right and left elbow (bilateral elbow disability), and degenerative joint disease of the right and left shoulder (bilateral shoulder disability). The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing in March 2017. A copy of the transcript has been reviewed and associated with the claims file. Whether new and material evidence has been submitted to reopen the claim of entitlement to a right elbow disability Applicable law provides that a final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C. § 5108. 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. 38 C.F.R. § 3.156(a). 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. Id. The credibility of the evidence is presumed in determining whether new and material evidence has been submitted. Justus v. Principi, 3 Vet. App. 510, 513 (1992). 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). Moreover, in determining whether this low threshold is met, consideration need not be limited to consideration of whether the newly submitted 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’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. In the present case, the claim of service connection for a right elbow disability was previously denied because the evidence did not reveal that the Veteran’s current right elbow disability was incurred in service. The evidence of record at the time of the January 1999 rating decision consisted of the claim form, service treatment records, personnel records, and an August 1998 VA examination. The Veteran was notified of this decision and his procedural rights by letter dated in January 1999. He did not appeal this determination and no additional evidence was submitted within one year following this notification letter. As such, the Board finds the January 1999 rating decision is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156(b), 20.302, 20.1103; Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011). Since the January 1999 rating decision, VA and private treatment records, statements from the Veteran, hearing testimony, and VA examinations and diagnostics have been associated with the claims file. After a review of the evidence, the Board finds that new and material evidence has been received to reopen the claim of service connection for a right elbow disability. The evidence is new, as it was not part of the record at the time of the January 1999 rating decision. It is also material as it relates to an unestablished fact necessary to substantiate the claim. The newly added evidence suggests that the Veteran’s right elbow disability may be related to service. Specifically, he testified at the hearing in March 2017 and described the elbow pain suffered due to parachute jumps and physical training required in service. Accordingly, the evidence is new and material and the claim of service connection for a right elbow disability is reopened. REASONS FOR REMAND 1. Entitlement to service connection for a left shoulder disability is remanded; 2. Entitlement to service connection for a right shoulder disability is remanded; 3. Entitlement to service connection for a left elbow disability is remanded; 4. Entitlement to service connection for a right elbow disability is remanded. The Veteran has been diagnosed with bilateral shoulder degenerative joint disease and right and left elbow lateral epicondylitis. He asserts his bilateral shoulder and elbow disabilities were incurred due to his parachute jumps and physical training in service. Specifically, when he jumped out of the aircraft his body was jerked and he landed on his knees and subsequently his elbows and side of his body. Furthermore, he trained in a combat environment and endured non-stop pushups and squad thrusts. His military personnel records show that he operated construction equipment and tractors. The Veteran initially started to notice the pain in his shoulders and elbows in 1988 and it has continued since that time. He self-medicated by using motrin and bengay. The Veteran was afforded VA examinations in July 2011 and an Independent Medical Evaluation (IME) report was issued in August 2011. The IME concluded that the Veteran’s bilateral shoulder and elbow disabilities were less likely than not due to his multiple jumps in service given that there were no documented injuries, complaints, or diagnoses in his retirement physical examination in April 1995. Furthermore, the examiner concluded that the bilateral elbow disability was more likely related to his repetitive usage while working as a heavy machine operator after service. The Board finds that the August 2011 IME is insufficient to determine the present claim. In this regard, the examiner solely relied on the lack of documented complaints during the Veteran’s separation examination and did not discuss his statements of bilateral elbow and shoulder pain in service and his self-treatment of them. Furthermore, the examiner did not discuss the additional physical requirements of the Veteran’s service, including his combat training. Lastly, the examiner concluded that his bilateral elbow disability was related to post-service work as a heavy machine operator but failed to discuss the fact that he worked as a heavy equipment operator and he performed similar tasks in service. Accordingly, the Board finds that a new VA examination is warranted to determine the etiology of the Veteran’s bilateral shoulder and elbow disability. Lastly, the Statement of the Case (SOC) issued by the RO in December 2013 lists x-rays from M. Army Medical Center dated in July 1995. However, these x-rays are not associated with the claims file. Accordingly, on remand, the RO should obtain and associate with the claims file the listed x-rays and updated VA treatment records. 5. Entitlement to service connection for a right ankle disability is remanded. During the hearing in March 2017, the undersigned VLJ acknowledged that the Veteran had withdrawn the issue of entitlement to service connection for a right ankle disability. However, a subsequent decision by the Federal Circuit Court clarified what constitutes an effective verbal withdrawal of an appeal. Specifically, a verbal withdrawal of an appeal at a hearing is effective “only where it is (1) ‘explicit’; (2) ‘unambiguous’; and (3) ‘done with a full understanding of the consequences of such action on the part of the [veteran].’” See Acree v. O’Rourke, 891 F.3d 1009, 1012-1013 (Fed. Cir. 2018) (quoting DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011)) (explaining that the Board must consider all three prongs of the DeLisio standard when determining whether a verbal withdrawal of a claim is effective). After a review of the evidence, including the March 2017 hearing transcript, the Board finds that there has been no withdrawal of the issue on appeal that was explicit, unambiguous, and done with a full understanding of the consequences of such action. In this regard, the Veteran did not verbally affirm this withdrawal at the hearing and there is no indication that he withdrew this claim with a full understanding of the consequences. Accordingly, the Board finds that a remand is warranted in order for the Veteran or his representative to submit an independent written statement confirming the Veteran’s withdrawal and indicating that he fully understands the consequences of the withdrawal. The matters are REMANDED for the following actions: 1. Contact the Veteran and his representative in writing and ask the Veteran to submit an independent written statement confirming or denying a withdrawal of the appealed claim of service connection for a right ankle disability. In the letter it must be explained that if he confirms the withdrawal, he fully understands that he will no longer be able to continue his claim for entitlement to service connection for a right ankle disability. If the Veteran does not respond within sixty days (60), then proceed as though the right ankle remains on appeal. 2. Obtain and associate with the claims file the July 1995 x-rays from M. Army Medical Center listed in the December 2013 SOC and any documentation pertaining to a 1995 motor vehicle accident. 3. Obtain and associate with the claims file the Veteran’s updated VA treatment records from May 2017 to the present. 4. After completion of # 1, #2 and #3, schedule the Veteran for a VA examination to determine the nature and etiology of his bilateral shoulder and elbow disabilities. (If a valid withdrawal on the ankle claim is not received, then this issue should also be covered on examination.) The claims folder, including this remand, must be reviewed by the examiner and such review should be noted in the examination report. The examiner is to identify all bilateral shoulder and elbow disabilities found on examination and identified during the pendency of this claim. For all diagnosed disabilities, the examiner should provide the following opinion: is it at least as likely as not that the Veteran’s right elbow, left elbow, right shoulder, and/or left shoulder disabilities were incurred in and/or otherwise related to his period of active military service? If the examiner is instructed that the right ankle claim remains on appeal, then he or she should also identify all ankle disabilities found on examination and identified during the pendency of this claim. For all diagnosed disabilities, the examiner should provide the following opinion: is it at least as likely as not that any right ankle disability was incurred in or otherwise related to his period of active military service? The examiner must provide a comprehensive rationale for each opinion provided. Specifically, the examiner must discuss the Veteran’s assertions throughout the claims file, including his hearing testimony, indicating that he suffered from bilateral elbow and shoulder pain following his parachute jumps in service and physical trainings, including combat training. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports are to be considered in formulating any opinion. If any opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner does not have the knowledge or training. As appropriate, the AOJ should conduct additional development or supplement the record. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Hurley, Associate Counsel