Citation Nr: 18143720 Decision Date: 10/23/18 Archive Date: 10/19/18 DOCKET NO. 15-04 137 DATE: October 23, 2018 ORDER Request to reopen the finally disallowed claim for fascia herniation right forearm, claimed as tearing fascia right shoulder and arm, is granted. REMANDED Issue of entitlement to compensation under the provisions of 38 U.S.C. § 1151 for degenerative joint disease and internal derangement of left shoulder, status post hemiarthroplasty, is remanded. Issue of entitlement to service connection for a chronic acquired psychiatric disorder, to include anxiety and depression associated with fascia herniation right forearm, claimed as tearing fascia right shoulder and arm, is remanded. Issue of entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REFERRED The issues of entitlement to compensation under the provision of 38 U.S.C. § 1151 for a chronic acquired psychiatric disorder, to include anxiety and depression, as secondary to degenerative joint disease and internal derangement of left shoulder, status post hemiarthroplasty, was first raised during the July 2014 hearing with a Decision Review Officer (DRO). The Veteran testified during the hearing that his chronic psychiatric condition was secondary to losing his military career as well as problems dealing with his arm disabilities. A February 2012 VA treatment record indicates the Veteran was hospitalized and diagnosed with a mood disorder, intermittent explosive disorder, and an anxiety disorder due to anger about his left shoulder medical treatment. This issue is referred to the Agency of Original Jurisdiction (AOJ) for adjudication FINDING OF FACT 1. The Board of Veterans Appeals (Board) denied the Veteran’s request to reopen his claim of service connection for fascia herniation right forearm, claimed as tearing fascia right shoulder and arm, in an April 2006 decision, which was not appealed and then became final. 2. Evidence received since the April 2006 Board decision is new, relates to an unestablished fact, and raises a reasonable possibility of substantiating the claim of service connection for fascia herniation right forearm, claimed as tearing fascia right shoulder and arm. CONCLUSION OF LAW 1. The April 2006 Board decision denying the Veteran’s request to reopen his claim of service connection for fascia herniation right forearm is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156(b), 20.1103 (2017). 2. The criteria for reopening the claim of service connection for fascia herniation right forearm have been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1979 to February 1980. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2012 rating decision issued by the Department of Veterans Affairs (VA). The Veteran perfected his appeal. See November 2012 Notice of Disagreement; December 2012 rating decision; November 2014 Statement of the Case; December 2014 VA Form 9. The Veteran testified before a DRO in a July 2014 hearing. A transcript of the hearing is associated with the claims file. The Veteran was scheduled to testified at a Board hearing in June 2015, but was deemed a no show. To date, the Veteran has not requested a new Board hearing. Accordingly, the Board considers his hearing request to be withdrawn. 38 C.F.R. § 20.704(d). New and Material Evidence Request to reopen the claim of service connection for fascia herniation right forearm. The Secretary must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to the claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. New evidence means existing evidence not previously submitted to agency decision-makers. 38 C.F.R. § 3.156(a). 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. Id. 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. For the limited purpose of evaluating whether evidence is new and material, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 511 (1992). The April 2006 Board decision denied the request to reopen the claim of service connection for fascia herniation right forearm because the evidence since the Decision 1994 rating decision only showed continued medical problems and an award for Social Security disability benefits. The Board decision indicates the December 1994 rating decision determined that the Veteran’s fascia herniation of the right forearm existed prior to service. See April 2006 BVA decision. The Board decision indicates that the evidence at the time was essentially cumulative in nature because it only showed the presence of a claimed disability many years following discharge. Id. Since the April 2006 Board decision, new and material evidence has been added to the claims file. This evidence includes an August 2012 private medical opinion by JMD, M.D. Dr. JMD opined that it is at least as likely as not that the Veteran’s disability of right arm injury occurred during service. As Dr. JMD’s opinion was not part of the record at the time of the April 2006 Board decision, it is new. As the opinion tends to indicate that the Veteran’s fascia herniation right forearm is related to service, it is material. Accordingly, presuming the credibility of this evidence, new and material evidence has been received. The claim of service connection for fascia herniation right forearm is reopened and issue of whether the Veteran is entitled to service connection is left for the AOJ to adjudicate. The Board notes that the August 2012 opinion by Dr. JMD indicates that the Veteran “reinjured a preexisting muscle injury in his right arm.” As Dr. JMD did not provide detailed rationale for his opinion, it is unclear if he opined that the Veteran’s service aggravated a preexisting disability or if the Veteran’s current disability of fascia herniation right forearm is a new condition as contended by the Veteran’s former representative during the July 2014 hearing with a DRO. REASONS FOR REMAND 1. Issue of entitlement to compensation under the provisions of 38 U.S.C. § 1151 for degenerative joint disease and internal derangement of left shoulder, status post hemiarthroplasty. The Board cannot make a fully-informed decision on the issue of compensation under the provisions of 38 U.S.C. § 1151 for degenerative joint disease and internal derangement of left shoulder, status post hemiarthroplasty because no VA examiner has opined whether the delay in procuring surgery for the Veteran’s left humerus fracture resulted in additional left shoulder disability. The Veteran was afforded a VA examination in October 2012, but whether the delay in procuring surgery for the Veteran’s left humerus fracture resulted in additional left shoulder disability was not specifically addressed by the VA examiner or elsewhere in the current evidence. Accordingly, a remand is warranted. The Board notes that the October 2012 VA examiner opined that the residuals and complications due to left shoulder surgery was at least as likely as not proximately due to or the result of carelessness or negligence on the part of the Huntington VA Medical Center, specifically considering evidence showing use of an oversized prosthetic humeral head in his August 2006 surgery. However, a claim for compensation under 38 U.S.C. § 1151 must, as a threshold matter, be based on treatment or care provided by VA, and treatment made under contract with a non VA provider is not considered treatment furnished by a VA employee or in a VA facility. See 38 C.F.R. § 3.361(f); 38 U.S.C. §§ 1703, 8153. The evidence shows Huntington VA Medical Center did not perform the Veteran’s hemiarthroplasty, but by a non-VA orthopedic specialist. See May 24, 2006 VA treatment record; June 6, 2006 VA treatment records; August 22, 2006 Private treatment record. 2. Issue of a chronic acquired psychiatric disorder, to include anxiety and depression associated with fascia herniation right forearm, claimed as tearing fascia right shoulder and arm. Because a decision on whether the Veteran is entitled to service connection for fascia herniation of the right forearm or compensation for degenerative joint disease and internal derangement of left shoulder, status post hemiarthroplasty, could significantly impact a decision on the issue of a chronic acquired psychiatric disorder as secondary to those disabilities, the issues are inextricably intertwined. A remand of the claims for a chronic acquired psychiatric disorder, to include anxiety and depression, is required. 3. Issue of entitlement to TDIU is remanded. The issue of entitlement to TDIU could be significantly impacted by a decision on whether the Veteran is entitled to service connection for fascia herniation of the right forearm, as well as each of the remanded and referred issues discussed above. Thus, the issues are inextricably intertwined, a remand of the claim of entitlement to TDIU is required. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate medical professional to determine the nature and cause of the Veteran’s degenerative joint disease and internal derangement of left shoulder, status post hemiarthroplasty. If the medical professional determines that it is necessary, schedule the Veteran for a VA examination regarding the etiology of the Veteran’s degenerative joint disease and internal derangement of left shoulder, status post hemiarthroplasty. The medical professional should respond to the following: (a) Is it at least as likely as not (a 50 percent or greater probability) that Veteran has additional left shoulder disability due to the delay between when the Veteran was initially seen by VA on May 21, 2006 for his left humerus fracture to when he was able to undergo his August 22, 2006 surgery for the injury? To determine whether a veteran has an additional disability, VA compares a veteran’s condition immediately before the beginning of the care or treatment being claimed to a veteran’s condition after such care or treatment has stopped. The examiner should also opine whether a physician exercising the degree of skill and care ordinarily required of the medical professional should have approved treatment sooner. The examiner should consider and discuss the Veteran’s lay testimony and assertions regarding any pertinent complaints and symptoms. The examiner should consider and discuss the pertinent medical evidence, including VA treatment records from May 21, 2006, to August 8, 2006; private treatment records from May 31, 2006, to August 31, 2006; the June 6, 2012 letter from the Huntington VA Medical Center summarizing the Veteran’s treatment for his left shoulder injury, the October 2012 VA examination report, and a January 2014 VA treatment note indicating the Veteran had a subsequent fall that resulted in a fracture of the humerus shaft below the implant. A detailed explanation (rationale) is requested, including citing to supporting clinical data (and/or medical literature), as appropriate. If the Veteran’s current degenerative joint disease and internal derangement of left shoulder, status post hemiarthroplasty, is deemed to be unrelated to any delay by VA medical providers, the examiner should, if possible, identify the cause considered more likely and explained why that is so. (Continued on the next page)   2. After the above development has been completed, review the record and ensure that all development sought in this remand has been completed. Arrange for any further development indicated by the results of the development requested above (e.g., an VA examination for a nexus opinion regarding a chronic acquired psychiatric disorder on a secondary basis or entitlement to TDIU, if deemed warranted by the AOJ), and re adjudicate the claims. If the benefits sought are not granted to the Veteran’s satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. The case should be returned to the Board, if in order, for further appellate review. DEBORAH W. SINGLETON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Lin, Associate Counsel