Citation Nr: 18144487 Decision Date: 10/24/18 Archive Date: 10/24/18 DOCKET NO. 13-26 898 DATE: October 24, 2018 ORDER New and material evidence to reopen the claim for entitlement to service connection for an acquired psychiatric disorder, to include PTSD, 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 elbow 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 hand 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 shoulder 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 disorder of the right arm other than the hand, elbow, or shoulder 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 bilateral hearing loss (also claimed as residual of ear infections) 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 tinnitus has been received and the claim is reopened; to this limited extent, the appeal is granted. New and material evidence having not been received, the claim to reopen the previously-denied claim of entitlement to service connection for a back disorder is denied. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is remanded. Entitlement to service connection for a right elbow disorder is remanded. Entitlement to service connection for a right hand disorder is remanded. Entitlement to service connection for a right shoulder disorder is remanded. Entitlement to service connection for a disorder of the right arm other than the hand, elbow, or shoulder is remanded. Entitlement to service connection for a bilateral hearing loss (also claimed as residual of ear infections) is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for an eye disorder is remanded. FINDINGS OF FACT 1. An August 2007 rating decision denied entitlement to service connection for an acquired psychiatric disorder, to include PTSD. Evidence received subsequent to August 2007 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 an acquired psychiatric disorder, to include PTSD. 2. A February 2009 rating decision denied entitlement to service connection for a right elbow disorder. Evidence received subsequent to February 2009 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 elbow disorder. 3. Rating decisions dated April 1986 and June 2002 denied entitlement to service connection for a right hand disorder. Evidence received subsequent to these decisions 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 hand disorder. 4. A February 2009 rating decision denied entitlement to service connection for a right shoulder disorder. Evidence received subsequent to February 2009 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 shoulder disorder. 5. An August 2007 rating decision denied entitlement to service connection for a disorder of the right arm other than the hand, elbow, or shoulder. Evidence received subsequent to August 2007 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 disorder of the right arm other than the hand, elbow, or shoulder. 6. Rating decisions dated June 2002 and August 2007 denied entitlement to service connection for bilateral hearing loss (also claimed as residual of ear infections). Evidence received subsequent to these decisions 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 bilateral hearing loss (also claimed as residual of ear infections). 7. Rating decisions dated July 2004 and August 2007 denied entitlement to service connection for tinnitus. Evidence received subsequent to these decisions 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 tinnitus. 8. A February 2009 rating decision denied entitlement to service connection for a back disorder. Evidence received subsequent to February 2009 does not, 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. CONCLUSIONS OF LAW 1. Evidence received since the August 2007 rating decision is new and material, and the Veteran’s claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 2. Evidence received since the February 2009 rating decision is new and material, and the Veteran’s claim of entitlement to service connection for a right elbow disorder is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. Evidence received since the April 1986 and June 2002 rating decisions is new and material, and the Veteran’s claim of entitlement to service connection for a right hand disorder is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 4. Evidence received since the February 2009 rating decision is new and material, and the Veteran’s claim of entitlement to service connection for a right shoulder disorder is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 5. Evidence received since the August 2007 rating decision is new and material, and the Veteran’s claim of entitlement to service connection for a disorder of the right arm other than the hand, elbow, or shoulder is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 6. Evidence received since the June 2002 and August 2007 rating decisions is new and material, and the Veteran’s claim of entitlement to service connection for hearing loss (also claimed as residual of ear infections) is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 7. Evidence received since the July 2004 and August 2007 rating decisions is new and material, and the Veteran’s claim of entitlement to service connection for tinnitus is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 8. Evidence received since the February 2009 rating decision is not new and material, and the Veteran’s claim of entitlement to service connection for a back disorder is not reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from July 1969 to July 1971. A hearing was not requested. In August 2017, the Board remanded the Veteran’s claims to obtain records from the Social Security Administration (SSA). By correspondence received September 14, 2017, SSA informed the Board that it had no records for the Veteran. 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 an acquired psychiatric disorder, to include PTSD In August 2007, the RO denied the Veteran’s claim of entitlement to service connection for PTSD. Part of the reason for this denial was the lack of corroboration of in-service stressors. The Veteran had indicated several stressors, including a grenade accident during training, finding a body in a gun tube while aboard the U.S.S. Fort Mandan, and land mines going off while stationed in Cuba with body parts everywhere. In reaching this conclusion, the RO relied in part on an August 2007 administrative decision, which stated that the Veteran had not provided information sufficient to request a search of unit records, including unit assignments or dates of the incident. In a November 2010 statement in support of claim, the Veteran states that the grenade incident occurred when he was part of Platoon 2144 Bravo Company while stationed at the Edson Range at Camp Pendleton in August 1969. A July 2007 letter (received 8/1/07) indicates Platoon 2143. The November 2010 evidence was not of record at the time of the prior decision, relates to facts necessary to support the Veteran’s claim, is neither cumulative nor redundant, and raises a reasonable possibility of substantiating the claim. The criteria for reopening the Veteran’s claim have been met. 2. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a right elbow disorder In February 2009, the RO denied the Veteran’s claim of entitlement to service connection for a right elbow disorder. Part of the reason for this denial was the lack of evidence of in-service incidence. Since that time, the Veteran has stated in his September 2013 VA Form 9 that his elbow disorder is related to an in-service incident where he was thrown against a tank during a storm. This evidence was not of record at the time of the prior decision, relates to facts necessary to support the Veteran’s claim, is neither cumulative nor redundant, and raises a reasonable possibility of substantiating the claim. The criteria for reopening the Veteran’s claim have been met. 3. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a right hand disorder In April 1986, the RO denied the Veteran’s claim of entitlement to service connection for a right hand disorder. Part of the reason for this denial was the lack of evidence of a current diagnosis and the lack of evidence of in-service incidence. In June 2002, the RO continued this denial for the same reasons. Since the issuance of the April 1986 and June 2002 decisions, a May 2011 VA examination has noted right-hand pain. Under recent caselaw, pain may constitute a current disability if the “pain reaches the level of a functional impairment of earning capacity.” Saunders v. Wilkie, 886 F.3d 1356, 1367–68 (Fed. Cir. 2018). Also, in his VA Form 9, the Veteran states that all of his right-arm problems are the result of an in-service incident where he was thrown against a tank. This evidence was not of record at the time of the prior decision, relates to facts necessary to support the Veteran’s claim, is neither cumulative nor redundant, and raises a reasonable possibility of substantiating the claim. The criteria for reopening the Veteran’s claim have been met. 4. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a right shoulder disorder In February 2009, the RO denied the Veteran’s claim of entitlement to service connection for a right shoulder disorder. Part of the reason for this denial was the lack of evidence of a current disorder. Since that time, the RO has conducted a May 2011 VA examination, which contains a diagnosis of rotator cuff care tendinitis and degenerative joint disease of the right shoulder. This evidence was not of record at the time of the prior decision, relates to facts necessary to support the Veteran’s claim, is neither cumulative nor redundant, and raises a reasonable possibility of substantiating the claim. The criteria for reopening the Veteran’s claim have been met. 5. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a disorder of the right arm other than the hand, elbow, or shoulder In August 2007, the RO denied the Veteran’s claim of entitlement to service connection for a right arm disorder. Part of the reason for this denial was that there was no evidence of a right arm disorder that is related to service. Since that time, the RO has conducted a May 2011 examination, which contains a diagnosis of a right biceps muscle tear. This evidence was not of record at the time of the prior decision, relates to facts necessary to support the Veteran’s claim, is neither cumulative nor redundant, and raises a reasonable possibility of substantiating the claim. The criteria for reopening the Veteran’s claim have been met. 6. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for bilateral hearing loss (also claimed as residual of ear infections) In June 2002, the RO denied the Veteran’s claim of entitlement to service connection for bilateral hearing loss. Part of the reason for this denial was that there was no evidence of a current diagnosis and no evidence of in-service incidence. In August 2007, the RO continued this denial, primarily on the basis that there was no evidence of in-service incidence. Since that time, the RO has conducted a May 2011 VA hearing loss examination, in which the Veteran “states he was exposed to tank noise and weaponry noise during training exercises.” While audiometric testing was not conducted as part of that examination, the examiner cites to other records that provide conflicting audiometric evidence of hearing loss. This evidence was not of record at the time of the prior decision, relates to facts necessary to support the Veteran’s claim, is neither cumulative nor redundant, and raises a reasonable possibility of substantiating the claim. The criteria for reopening the Veteran’s claim have been met. 7. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for tinnitus In July 2004, the RO denied the Veteran’s claim of entitlement to service connection for tinnitus. Part of the reason for this denial was the lack of evidence of in-service incidence and the lack of evidence of nexus. Since that time, the RO has conducted a May 2011 VA hearing loss examination, in which the Veteran “states he was exposed to tank noise and weaponry noise during training exercises.” This evidence was not of record at the time of the prior decision, relates to facts necessary to support the Veteran’s claim, is neither cumulative nor redundant, and raises a reasonable possibility of substantiating the claim. The criteria for reopening the Veteran’s claim have been met. 8. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a back disorder In February 2009, the RO denied the Veteran’s claim of entitlement to service connection for a back disorder. Part of the reason for this denial was the lack of evidence of a nexus between his current back disorder and his November 1969 reports of in-service back pain. Since that time, the Veteran has submitted no additional medical or other evidence of a nexus between a current back disorder and his in-service reports of back pain that is not merely cumulative of previously received evidence. The only new nexus evidence is a May 2011 VA medical opinion, which opines that the Veteran’s back disorder is less likely than not related to service. Negative opinion evidence does not constitute new and material evidence. See Villalobos v. Principi, 3 Vet. App. 450 (1992). As this evidence is merely cumulative of prior evidence of record, does not relate to facts necessary to substantiate the Veteran’s claim, and does not raise a reasonable possibility of substantiating the Veteran’s claim, the criteria for reopening the Veteran’s claim have not been met. REASONS FOR REMAND In statements received in November 2010 and January 2011, the Veteran argues that all of his disorders are the result of drinking contaminated drinking water at Camp Lejeune. See also December 2014 statement (listing chemicals found in Camp Lejeune groundwater). 1. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is remanded. As already described above, the Veteran has submitted new evidence that could potentially verify his claimed in-service stressor. Specifically, in a November 2010 statement he indicates that the grenade incident occurred when he was part of Platoon 2144 Bravo Company while stationed at the Edson Range at Camp Pendleton in August 1969. A July 2007 letter (received 8/1/07) indicates Platoon 2143. Based on this information, the RO should attempt to verify this stressor and schedule the Veteran for a new examination. 2. Entitlement to service connection for a right elbow disorder is remanded. 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). These elements are satisfied with regard to the claim of entitlement to service connection for a right elbow disorder. Regarding the first element, a December 2008 VA medical record (received 12/12/08, page 1 of 13) lists “[i]njury to the flexor muscles of the elbow” as part of the Veteran’s “Past Medical History,” but does not indicate which elbow. Regarding the second element, a February 1970 service treatment record (received 5/25/12, page 34 of 44) indicates “pulled muscle or pinched nerve [right] forearm.” Regarding the third and fourth elements, there is an indication that an elbow injury could be related to an arm injury, 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. The Board notes that a May 2011 VA medical opinion identifies several specific disorders as being not related to service. The Veteran’s elbow flexor muscle injury is not specifically addressed. For this reason, none of the May 2011 VA medical opinions by themselves support a denial of entitlement to service connection for a right elbow disorder. 3. Entitlement to service connection for a right hand disorder is remanded. A May 2011 VA medical opinion states that the Veteran’s right-hand ganglion cyst is not related to service. An addendum opinion is required because this opinion does not specifically address the Veteran’s testimony that he injured his right arm when he was thrown against a tank in a storm. See, e.g, June 2007 correspondence. 4. Entitlement to service connection for a right shoulder disorder is remanded. 5. Entitlement to service connection for a disorder of the right arm other than the hand, elbow, or shoulder is remanded. A May 2011 VA medical opinion states that the Veteran’s right shoulder and biceps injuries “are not related to contaminated water and Camp Lejeune.” This same opinion suggests, but does not specifically state, that these disorders are less likely than not related to service. Given this ambiguity, an addendum opinion is required. 6. Entitlement to service connection for a bilateral hearing loss (also claimed as residual of ear infections) is remanded. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The May 2011 VA audiological examination discusses why there is ambiguity regarding a current diagnosis of hearing loss based on medical records, but does not contain any actual audiological findings. Since the Board cannot assess whether the Veteran has a current diagnosis of hearing loss without audiological findings, a new examination is required. 7. Entitlement to service connection for tinnitus is remanded. A new audiological examination for hearing loss will provide information that may be relevant to the Veteran’s claim of entitlement to service connection for tinnitus. The adjudication of this claim at this time would therefore be premature. 8. Entitlement to service connection for an eye disorder is remanded. The McLendon elements, described above, have been satisfied with respect to the Veteran’s claim of entitlement to service connection for an eye disorder. Regarding the first element, in a September 2010 statement the Veteran indicates that he may need surgery on his eyes. Regarding the second element, service treatment records indicate several optometry visits and a March 1970 service treatment record (received 5/25/12, page 27 of 44) indicates eyes watering and headaches “from reading and watching T.V.” Regarding the third and fourth elements, it is possible that a current vision problem could be related to an in-service vision problem, 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 July 2018 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 July 2018 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. Based on the information provided by the Veteran regarding stressors experienced when he was part of Platoon 2144 Bravo Company while stationed at the Edson Range at Camp Pendleton in August 1969, the RO should take steps to verify the claimed in-service stressors, to include contacting all such entities deemed appropriate to provide any available information which might corroborate the Veteran’s claimed stressors. Such stressors include the training incident when a sergeant was killed by a grenade explosion. See November 2010 statement. A July 2007 letter (received 8/1/07) indicates Platoon 2143. 3. After completing steps 1–2 above, provide an examination and obtain a medical opinion regarding the nature and etiology of any acquired psychiatric disorder, including but not limited to PTSD. The examiner should review the entire claims file, conduct all necessary tests and studies, and provide the requested opinions. (a.) Identify all acquired psychiatric disorders currently present. (b.) Offer an opinion as to whether it is at least as likely as not (i.e., probability of 50 percent or more) that a current acquired psychiatric disorder had its onset in service or was otherwise caused by an in-service disease or injury, including a training incident when a sergeant was killed by a grenade explosion and as a result of exposure to contaminated water at Camp Lejeune. (c.) Offer an opinion as to whether it is at least as likely as not that a current acquired psychiatric disorder had its onset within one year of the Veteran’s discharge from his period of active service. In rendering these opinions, the examiner should consider the Veteran’s November 2010 statement and the April 2011 VA examination. 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 right elbow disorder, right hand disorder, right shoulder disorder, or other disorder of the right arm. 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 elbow disorder, right hand disorder, right shoulder disorder, or other disorder of the right arm, including but not limited to an injury to the flexor muscles of the elbow, rotator cuff care tendinitis, and degenerative joint disease of the right shoulder. (b.) Whether it is at least as likely as not (a 50 percent or better probability) that any current or previously-diagnosed right elbow disorder, right hand disorder, right shoulder disorder, or other disorder of the right arm was incurred in the Veteran’s service, including but not limited to as a result of being thrown against a tank while at sea. (c.) Whether any neurological or other aspects of any current or previously-diagnosed right elbow disorder, right hand disorder, right shoulder disorder, or other disorder of the right arm are related to exposure to contaminated water at Camp Lejeune. In rendering these opinions, the examiner should consider the Veteran’s June 2007 statement about being thrown against a tank while at sea and the May 2011 VA examination. 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, schedule the Veteran for a VA audiological examination. If the Veteran does not wish to participate in an audiological examination, this should be noted in the claims file. Audiometric testing should be completed and any bilateral hearing loss disability under 38 C.F.R. § 3.385 should be noted. A Maryland CNC speech recognition test must be completed. Then, the examiner must provide the following medical opinions: (a.) Whether the Veteran has any current hearing loss disorder or tinnitus; and (b.) Whether it is at least as likely as not (a 50 percent or better probability) that any current hearing loss disorder or tinnitus was incurred in the Veteran’s service, to include as a result of exposure to contaminated water at Camp Lejeune. 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. 6. After obtaining any additional records to the extent possible, provide an examination and obtain an appropriate medical opinion regarding the nature and etiology of any current or previously-diagnosed eye 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 eye disorder; and (b.) Whether it is at least as likely as not (a 50 percent or better probability) that any current or previously-diagnosed eye disorder was incurred in the Veteran’s service, to include as a result of exposure to contaminated water at Camp Lejeune. In rendering these opinions, the examiner should consider the March 1970 service treatment record (received 5/25/12, page 27 of 44) indicating eyes watering and headaches “from reading and watching T.V.” 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