Citation Nr: 18140710 Decision Date: 10/05/18 Archive Date: 10/05/18 DOCKET NO. 17-57 517 DATE: ORDER New and material evidence to reopen the claim for entitlement to service connection for a right wrist disorder has been received and the claim is reopened; to this limited extent, the appeal is granted. New and material evidence to reopen the claim for entitlement to service connection for a back disorder has been received and the claim is reopened; to this limited extent, the appeal is granted. New and material evidence to reopen the claim for entitlement to service connection for a left knee disorder has been received and the claim is reopened; to this limited extent, the appeal is granted. New and material evidence to reopen the claim for entitlement to service connection for a left ankle disorder has been received and the claim is reopened; to this limited extent, the appeal is granted. New and material evidence to reopen the claim for entitlement to service connection for a right ankle disorder has been received and the claim is reopened; to this limited extent, the appeal is granted. Entitlement to service connection for migraines, to include as secondary to service-connected asthma, is granted. REMANDED Entitlement to service connection for a right wrist disorder is remanded. Entitlement to service connection for a back disorder is remanded. Entitlement to service connection for a left knee disorder is remanded. Entitlement to service connection for a left ankle disorder is remanded. Entitlement to service connection for a right ankle disorder is remanded. FINDINGS OF FACT 1. An October 1995 rating decision denied entitlement to service connection for a right wrist disorder. Evidence received subsequent to October 1995 does, by itself or when considered with previous evidence of record, relate to an unestablished fact necessary to substantiate the Veteran’s claim of entitlement to service connection for a right wrist disorder. 2. An October 1995 rating decision denied entitlement to service connection for a back disorder. Evidence received subsequent to October 1995 does, by itself or when considered with previous evidence of record, relate to an unestablished fact necessary to substantiate the Veteran’s claim of entitlement to service connection for a back disorder. 3. An October 1995 rating decision denied entitlement to service connection for a left knee disorder. Evidence received subsequent to October 1995 does, by itself or when considered with previous evidence of record, relate to an unestablished fact necessary to substantiate the Veteran’s claim of entitlement to service connection for a left knee disorder. 4. An October 1995 rating decision denied entitlement to service connection for a left ankle disorder. Evidence received subsequent to October 1995 does, by itself or when considered with previous evidence of record, relate to an unestablished fact necessary to substantiate the Veteran’s claim of entitlement to service connection for a left ankle disorder for. 5. An October 1995 rating decision denied entitlement to service connection for a right ankle disorder. Evidence received subsequent to October 1995 does, by itself or when considered with previous evidence of record, relate to an unestablished fact necessary to substantiate the Veteran’s claim of entitlement to service connection for a right ankle disorder. 6. The Veteran’s migraine disorder is proximately due to her service-connected asthma. CONCLUSIONS OF LAW 1. Evidence received since the October 1995 rating decision is new and material, and the Veteran’s claim of entitlement to service connection for a right wrist disorder is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 2. Evidence received since the October 1995 rating decision is new and material, and the Veteran’s claim of entitlement to service connection for a back disorder is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. Evidence received since the October 1995 rating decision is new and material, and the Veteran’s claim of entitlement to service connection for a left knee disorder is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 4. Evidence received since the October 1995 rating decision is new and material, and the Veteran’s claim of entitlement to service connection for a left ankle disorder is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 5. Evidence received since the October 1995 rating decision is new and material, and the Veteran’s claim of entitlement to service connection for a right ankle disorder is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 6. The criteria for service connection for a migraine disorder as secondary to service-connected asthma, have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from January 1993 to August 1995. A hearing was not requested. New and Material Evidence Pursuant to 38 U.S.C. § 7104 and 38 C.F.R. § 3.105, a final decision by the Board may not thereafter be reopened and allowed, in the absence of clear and unmistakable error (CUE), except as provided by 38 U.S.C. § 5108, which indicates that “[i]f new and material evidence is presented or secured with respect to a claim, which has been disallowed, the [VA] shall reopen the claim and review the former disposition of the claim.” Therefore, once a Board decision becomes final under § 7104, in the absence of CUE, and absent the submission of new and material evidence, the claim cannot be reopened or adjudicated by VA. 38 U.S.C. §§ 5108, 7104; 38 C.F.R. § 3.105. A claimant may reopen a finally-adjudicated claim by submitting new and material evidence. Material evidence means existing evidence that, by itself or when considered with the 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, triggering an alternative theory of entitlement, or triggering the Secretary’s duty to assist by providing a medical opinion. 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a right wrist disorder 2. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a back disorder 3. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a left knee disorder 4. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a left ankle disorder 5. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a right ankle disorder In October 1995, the RO denied the Veteran’s claims of entitlement to service connection for a right wrist disorder, a back disorder, a left knee disorder, a left ankle disorder, and a right ankle disorder. Part of the reason for this denial was there was not a current diagnosis for any of these disorders. Since the time of that decision, the Federal Circuit has held that for the “current disability” element of service connection, “pain need not be diagnosed as connected to a current underlying condition to function as an impairment.” Saunders v. Wilkie, 886 F.3d 1356, 1364 (Fed. Cir. 2018). Rather, “[t]o establish the presence of a disability, a veteran will need to show that [their] pain reaches the level of a functional impairment of earning capacity.” Id. at 1367–68. This definition of “disability” does not “require that pain must affect some aspect of the normal working movements of the body” or that “pain must be tied to physical evidence of a lack of functionality and/or physical evidence of a current disease or injury.” Id. at 1366–67. In light of Saunders, evidence submitted since October 2015 is new and material, in that evidence indicates pain for all joints for which the Veteran now seeks service connection. A March 2009 VA medical record (received 4/28/09, page 17 of 49) indicates “tenderness of the wrist joints.” A different March 2009 VA medical record (received 4/28/09, page 15 of 49) indicates back pain. A May 2015 VA medical record (received 10/20/16, page 8 of 10) indicates left knee pain. A May 2016 VA medical record (received 10/20/16, page 34 of 146) indicates bilateral ankle pain, with greater tenderness on the left. This evidence was not of record at the time of the prior decision, relates to facts necessary to support the Veteran’s claims, is neither cumulative nor redundant, and raises a reasonable possibility of substantiating the claims. The criteria for reopening the Veteran’s claims have been met. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service, even if the disability was initially diagnosed after service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be granted on a secondary basis for a disability if it is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). An increase in severity of a nonservice-connected disease or injury shall not be service-connected if it is due to the natural progression of the nonservice-connected condition. Id. at 447–48. Service connection on a secondary basis may not be granted without medical evidence of a current disability and evidence of a nexus between the current disability and a service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512–14 (1998). 6. Entitlement to service connection for migraines, to include as secondary to service-connected asthma The Veteran argues that her migraine headaches are related to her service-connected asthma. A March 2018 private medical opinion (received 3/16/18, page 20 of 29) indicates that the Veteran has migraines. That same opinion states that “[t]here is a strong relationship between asthma and [the] veteran’s headaches.” This link is the result of the asthma-induced “temporary shortage of oxygen.” The examiner has submitted a 2017 peer-reviewed study in support of this conclusion. This medical opinion is probative because it is based on a review of the record and contains clear conclusions with supporting data connected by a reasoned medical explanation. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301–02 (2008). The March 2018 private medical opinion supports a finding that the Veteran’s current migraine disorder was proximately aggravated by her service-connected asthma. The Veteran is entitled to service connection on the basis of this opinion. REASONS FOR REMAND A medical examination or medical opinion is necessary in a claim for service connection when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran’s service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81–86 (2006). See also 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i). 1. Entitlement to service connection for a right wrist disorder is remanded. These elements are satisfied with regard to the claim of entitlement to service connection for a right wrist disorder. Regarding the first element, a March 2009 VA medical record (received 4/28/09, page 17 of 49) indicates “tenderness of the wrist joints.” Regarding the second element, December 1994 service treatment records (received 8/28/14, pages 26 and 29 of 113) indicate a volleyball-related right-hand sprain. Regarding the third and fourth elements, there is an indication that the Veteran’s current right-wrist pain could be related to an in-service right-hand sprain, but there is insufficient evidence of record by which the Board can make a decision. As the four McLendon elements are satisfied, the Veteran is entitled to a VA examination and medical opinion. 2. Entitlement to service connection for a back disorder is remanded. The McLendon elements are also satisfied with regard to the claim of entitlement to service connection for a back disorder. Regarding the first element, a March 2009 VA medical record (received 4/28/09, page 15 of 49) indicates back pain. Regarding the second element, several service treatment records indicate treatment for back pain. An April 1993 service treatment record (received 8/28/14, page 59 of 113) indicates back pain. A February 1995 service treatment record (received 8/28/14, page 5 of 113) indicates treatment for the Veteran’s back. A July 1995 service treatment record (received 8/28/14, page 69 of 88) indicates back pain. A May 1995 service treatment record (received 8/28/14, page 40 of 88) indicates lower back pain after falling off of a countertop. A July 1995 report of medical history (received 8/28/14, page 67 of 88) indicates back pain following a car accident. A July 1995 service treatment record (received 8/28/14, page 63 of 88) also indicates recurrent back pain. Regarding the third and fourth elements, there is an indication that current back pain could be related to in-service back pain, but there is insufficient evidence of record by which the Board can make a decision. As the four McLendon elements are satisfied, the Veteran is entitled to a VA examination and medical opinion. 3. Entitlement to service connection for a left knee disorder is remanded. The McLendon elements are also satisfied with regard to the claim of entitlement to service connection for a left knee disorder. Regarding the first element, a May 2015 VA medical record (received 10/20/16, page 8 of 10) indicates left knee pain. Regarding the second element, several service treatment records indicate in-service knee pain. A March 1993 service treatment record (received 8/28/14, page 64 of 113) indicates left knee pain. An April 1993 service treatment record (received 8/28/14, page 58 of 113) indicates left knee pain. A July 1993 service treatment record (received 8/28/14, page 54 of 113) indicates left knee pain. An August 1993 service treatment record (received 8/28/14, page 15 of 113) indicates left knee pain. September 1993 service treatment records (received 7/1/10, page 1 of 2; received 8/28/14, page 87 of 113) indicate “[left] knee retropatellar pain syndrome” secondary to trauma. A June 1994 service treatment record (received 8/28/14, page 43 of 113) indicates left knee pain. Regarding the third and fourth elements, there is an indication that current left knee pain could be related to in-service knee pain, but there is insufficient evidence of record by which the Board can make a decision. As the four McLendon elements are satisfied, the Veteran is entitled to a VA examination and medical opinion. 4. Entitlement to service connection for a left ankle disorder is remanded. 5. Entitlement to service connection for a right ankle disorder is remanded. The McLendon elements are also satisfied with regard to the claim of entitlement to service connection for right and left ankle disorders. Regarding the first element, a May 2016 VA medical record (received 10/20/16, page 34 of 146) indicates bilateral ankle pain, with greater tenderness on the left. Regarding the second element, a March 1993 service treatment record (received 8/28/14, page 64 of 113) indicates left ankle pain and left knee pain. A June 1993 service treatment record (received 8/28/14, page 56 of 113) indicates bilateral foot pain. A March 1995 service treatment record (received 8/28/14, page 82 of 88) indicates a prior history of ankle sprains. Regarding the third and fourth elements, there is an indication that current ankle pain could be related to in-service ankle pain, but there is insufficient evidence of record by which the Board can make a decision. As the four McLendon elements are satisfied, the Veteran is entitled to a VA examination and medical opinion. Additionally, on Remand the RO should obtain all relevant VA treatment records dated from October 2016 to the present before the issues on appeal are decided on the merits. Bell v. Derwinski, 2 Vet. App. 611 (1992). The matters are REMANDED for the following action: 1. Obtain all VA treatment records from October 2016 to the present. If no records are available, the claims folder must indicate this fact. Any additional records identified by the Veteran during the course of the remand should also be obtained, following the receipt of any necessary authorizations from the Veteran, and associated with the claims file. 2. After obtaining any additional records to the extent possible, provide an examination and obtain a medical opinion regarding the nature and etiology of any current or previously-diagnosed right wrist disorder. The examiner should review the entire claims file, conduct all necessary tests and studies, and provide the requested opinions: (a.) Whether the Veteran has any current or previously-diagnosed right wrist disorder; and (b.) Whether it is at least as likely as not (a 50 percent or better probability) that any current or previously-diagnosed right wrist disorder was incurred in the Veteran’s service. (c.) If the Veteran does not have a current diagnosis for a right wrist disorder, is the Veteran’s right wrist condition characterized by pain? If yes, offer the following opinions: (i) does the Veteran’s right wrist pain reach the level of functional impairment of earning capacity, and if so (ii) is it at least as likely as not (a 50 percent or better probability) that any right wrist pain that reaches the level of functional impairment of earning capacity was incurred in the Veteran’s service. In rendering these opinions, the examiner should consider service treatment records describing wrist pain, such as those dated December 1994 (received 8/28/14, pages 26 and 29 of 113). The examiner should provide a complete rationale for any opinions offered. If the examiner is unable to provide any requested opinion without resort to speculation, he or she should explain why this is so. 3. After obtaining any additional records to the extent possible, provide an examination and obtain a medical opinion regarding the nature and etiology of any current or previously-diagnosed back disorder. The examiner should review the entire claims file, conduct all necessary tests and studies, and provide the requested opinions: (a.) Whether the Veteran has any current or previously-diagnosed back disorder; and (b.) Whether it is at least as likely as not (a 50 percent or better probability) that any current or previously-diagnosed back disorder was incurred in the Veteran’s service. (c.) If the Veteran does not have a current diagnosis for a back disorder, is the Veteran’s back condition characterized by pain? If yes, offer the following opinions: (i) does the Veteran’s back pain reach the level of functional impairment of earning capacity, and if so (ii) is it at least as likely as not (a 50 percent or better probability) that any back pain that reaches the level of functional impairment of earning capacity was incurred in the Veteran’s service. In rendering these opinions, the examiner should consider service treatment records describing back pain, such as those dated April 1993 (received 8/28/14, page 59 of 113), February 1995 (received 8/28/14, page 5 of 113), July 1995 (received 8/28/14, page 69 of 88), May 1995 (received 8/28/14, page 40 of 88), and July 1995 (received 8/28/14, pages 63 and 67 of 88). The examiner should provide a complete rationale for any opinions offered. If the examiner is unable to provide any requested opinion without resort to speculation, he or she should explain why this is so. 4. After obtaining any additional records to the extent possible, provide an examination and obtain a medical opinion regarding the nature and etiology of any current or previously-diagnosed left knee disorder. The examiner should review the entire claims file, conduct all necessary tests and studies, and provide the requested opinions: (a.) Whether the Veteran has any current or previously-diagnosed left knee disorder; and (b.) Whether it is at least as likely as not (a 50 percent or better probability) that any current or previously-diagnosed left knee disorder was incurred in the Veteran’s service. (c.) If the Veteran does not have a current diagnosis for left knee disorder, is the Veteran’s left knee condition characterized by pain? If yes, offer the following opinions: (i) does the Veteran’s left knee pain reach the level of functional impairment of earning capacity, and if so (ii) is it at least as likely as not (a 50 percent or better probability) that any left knee pain that reaches the level of functional impairment of earning capacity was incurred in the Veteran’s service. In rendering these opinions, the examiner should consider service treatment records describing left knee pain, such as those dated March 1993 (received 8/28/14, page 64 of 113), April 1993 (received 8/28/14, page 58 of 113), July 1993 (received 8/28/14, page 54 of 113), August 1993 (received 8/28/14, page 15 of 113), September 1993 (received 7/1/10, page 1 of 2; received 8/28/14, page 87 of 113), and June 1994 service (received 8/28/14, page 43 of 113). The examiner should provide a complete rationale for any opinions offered. If the examiner is unable to provide any requested opinion without resort to speculation, he or she should explain why this is so. 5. After obtaining any additional records to the extent possible, provide an examination and obtain a medical opinion regarding the nature and etiology of any current or previously-diagnosed right or left ankle disorder. The examiner should review the entire claims file, conduct all necessary tests and studies, and provide the requested opinions: (a.) Whether the Veteran has any current or previously-diagnosed right or left ankle disorder; and (b.) Whether it is at least as likely as not (a 50 percent or better probability) that any current or previously-diagnosed right or left ankle disorder was incurred in the Veteran’s service. (c.) If the Veteran does not have a current diagnosis for a right or left ankle disorder, is the Veteran’s right or left ankle condition characterized by pain? If yes, offer the following opinions: (i) does the Veteran’s right or left ankle pain reach the level of functional impairment of earning capacity, and if so (ii) is it at least as likely as not (a 50 percent or better probability) that any right or left ankle pain that reaches the level of functional impairment of earning capacity was incurred in the Veteran’s service. In rendering these opinions, the examiner should consider service treatment records describing ankle pain, such as those dated March 1993 (received 8/28/14, page 64 of 113), June 1993 (received 8/28/14, page 56 of 113), and March 1995 (received 8/28/14, page 82 of 88). The examiner should provide a complete rationale for any opinions offered. If the examiner is unable to provide any requested opinion without resort to speculation, he or she should explain why this is so. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Cannon, Associate Counsel