Citation Nr: 18154695 Decision Date: 12/04/18 Archive Date: 11/30/18 DOCKET NO. 17-53 021 DATE: December 4, 2018 ORDER New and material evidence not having been received, the application to reopen the previously denied claim for service connection for sinusitis is denied. New and material evidence not having been received, the application to reopen the previously denied claim for service connection for skin rash is denied. New and material evidence having been received, the application to reopen the previously denied claim for service connection for Shell Fragment Wound (SFW) of the right hand is granted. New and material evidence having been received, the application to reopen the previously denied claim for service connection for SFW of the left hand is granted. New and material evidence having been received, the application to reopen the previously denied claim for service connection for a left hip disability is granted. New and material evidence having been received, the application to reopen the previously denied claim for service connection for a right hip disability is granted. New and material evidence having been received, the application to reopen the previously denied claim for service connection for a cervical spine disability is granted. New and material evidence having been received, the application to reopen the previously denied claim for service connection for a left knee disability is granted. New and material evidence having been received, the application to reopen the previously denied claim for service connection for a right eye disability is granted. REMANDED Service connection for SFW of the right hand is remanded. Service connection for SFW of the left hand is remanded. Service connection for a right hip disability is remanded. Service connection for a left hip disability is remanded. Service connection for a cervical spine disability is remanded. Service connection for a left knee disability is remanded. Service connection for a right eye disability is remanded. FINDINGS OF FACT 1. A September 2010 rating decision denied service connection for SFW of the right hand and a December 2012 rating decision denied service connection for disabilities of the hips and declined to reopen the claims of service connection for skin rash, sinusitis, left hand SFW, cervical neck condition with herniated disc at the C6 level, left knee disability and right eye macular hole with visual defect; the Veteran did not file a notice of disagreement, new and material evidence was not received within one year of notice of these rating decisions, and no relevant official service department records were subsequently associated with the record. 2. Evidence added to the record since the December 2012 rating decision, pertinent to the claims of service connection for skin rash and sinusitis is either cumulative or redundant, does not relate to an unestablished fact necessary to substantiate the claims, and does not raise a reasonable possibility of substantiating the claims. 3. Evidence added to the record since the September 2010 and December 2012 rating decisions, pertinent to the claims of service connection for SFW of each hand and disabilities of each hip, neck, left knee and right eye, is not cumulative or redundant of the evidence of record at the time of the decisions and raises a reasonable possibility of substantiating the Veteran’s claims of entitlement to service connection for SFW of each hand and disabilities of each hip, neck, left knee and right eye. CONCLUSIONS OF LAW 1. New and material evidence has not been received, and the claims of service connection for skin rash and sinusitis may not be reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 2. New and material evidence has been received, and the claims of service connection for SFW of each hand and disabilities of each hip, neck, left knee and right eye may be 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 from July 1967 to September 1988. This case comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2016 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). In order to establish jurisdiction over these service connection claims, the Board must first consider whether new and material evidence has been received to reopen the claims. 38 U.S.C. § 5108. The Board must proceed in this fashion regardless of the RO’s actions. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). If the Board finds that no new and material evidence has been offered, that is where the analysis must end. Butler v. Brown, 9 Vet. App. 167 (1996). Additional reference to the Veteran’s service connection claims are presented in additional evidence of record beyond the most detailed pertinent evidence discussed by the Board in this decision. The additional evidence of record does not present findings concerning the Veteran’s claims that significantly expand upon, revise, or contradict the findings in the most detailed evidence discussed by the Board in this decision. The analysis below focuses on the most salient and relevant evidence and on what this evidence shows or fails to show. The Veteran should not assume that the Board has overlooked pieces of evidence that are not specifically discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000). Petitions to Reopen Generally, an unappealed rating decision is final based on the evidence of record at the time of the decision, and may not be reopened or allowed based on such evidence. 38 U.S.C. § 7105. However, if new and material evidence is presented or secured with respect to a claim that has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108. New and material evidence is defined as evidence not previously submitted to agency decision makers 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. See 38 C.F.R. § 3.156(a). Evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence was not previously presented to the Board. See Anglin v. West, 203 F.3d 1343 (2000). The Board will generally presume the credibility of evidence in determining whether it is new and material. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003). The requirement of new and material evidence raising a reasonable possibility of substantiating the claim is a low threshold. Shade v. Shinseki, 24 Vet. App. 110 (2010). Service connection for a disability of the second finger of the left hand, right eye macular hole with visual defect, skin rash, sinusitis and a left knee disability was originally denied by an unappealed October 1989 rating decision essentially based on a finding of no chronic disability of the second finger of the left hand, skin rash, sinusitis or left knee shown on the April 1989 initial post service VA examination and right eye macular hole with visual defect existed prior to service and was not aggravated therein. Specifically, the rating decision found although service treatment records (STRs) showed an August 1988 complaint of pain at the second digit of the left hand, the Veteran reported a history of decreased pinch strength of the left index finger which had resolved and no current left hand disability was shown on examination; the STRs showed a November 1975 finding of right eye old faveomacular retinitis, a June 1977 finding of right eye corneal abrasion from a thorn bush and the Veteran’s complaints of pain and photophobia, a November 1980 report of right eye visual problems since a corneal abrasion about 20 years previously, a June 1988 finding of right eye visual field defect due to a macular hole with a notation that the Veteran reported a childhood ocular injury and current VA examination findings of right eye visual field defect and macular hole with refractive error; no chronic skin rash shown in service or on VA examination; treatment for sinus congestion shown in service but no evidence of sinus disease in service or on current VA examination and although the Veteran was treated for left knee complaints in service, current VA examination found no chronic left knee disability. A July 2000 rating decision, in pertinent part, denied service connection for SFW of the right hand based on a finding of treatment for superficial SFW in service which had resolved with no current disability. This rating decision also declined to reopen the matters of service connection for skin rash, right eye macular hole with visual defect, SFW of the left hand, sinusitis and a left knee disability. The Veteran perfected his appeal of these determinations to the Board. An unappealed March 2004 rating decision denied service connection for a neck disorder on the basis that the STRs were silent as to treatment or diagnosis of a cervical spine disorder and there was no evidence showing the Veteran’s current disc bulge at C-6 is related to his active duty service. Subsequently, the Veteran requested reconsideration of this decision in a May 2004 communication, withdrew this request in a June 2004 communication (indicating his wish to close his file concerning his reconsideration request for HNP (herniated nucleus pulposus) C6) and requested VA open his file and evaluate his neck condition in a January 2005 communication (and a November 2005 unappealed rating decision determined new and material evidence had not been submitted to reopen the claim of service connection for a cervical neck condition with herniated disc at the C6 level); however, in a February 2006 communication, the Veteran requested VA “close [his] appeal” and “take no more actions in [his] case.” Accordingly, as he did not appeal the March 2004 decision or submit new and material evidence within one year of the decision; the March 2004 rating decision as to the matter of service connection for a neck disorder is final. A July 2005 Board decision, from the appeal of the July 2000 rating decision, found new and material evidence had been submitted to reopen the matters of service connection for a skin disorder, a left knee disorder, sinusitis and macular hole of the right eye with visual defect. Specifically, the Board found that VA and private medical records dated in 1998, November 2000 and March 2003 showed the presence of a current chronic skin disorder diagnosed as dermatitis and xerosis; and April 2002 letter from a private physician indicated the macular hole of the right eye began in service; an October 2002 VA treatment report showed a diagnosis of left knee arthritis and 2002 VA and private treatment records showed treatment for sinusitis. After reopening these claims, the Board remanded these matters as well as the matters of whether new and material evidence had been submitted to reopen the claim of service connection for SFW of the left hand and service connection for residuals of SFW of the right hand (and increased ratings for a low back disorder and posttraumatic stress disorder) for additional development, to include affording the Veteran VA examinations and obtaining opinions as to whether any current chronic disorder of the skin, hands, left knee and/or sinus is related to service and whether the right eye macular hole originated in service and, if it was present prior to entry into active duty, whether either the right eye macular hole and/or right eye defective vision underwent increase in severity beyond normal progression. However, prior to accomplishing the development requested in the July 2005 Board remand, VA received the February 2006 communication from the Veteran requesting VA “close [his] appeal” and “take no more actions in [his] case.” Although an October 2006 communication from the Veteran requested his appeal of the matters addressed in the July 2005 Board remand be returned to the “Board for final decision on all issues;” in a May 2007 letter, VA notified the Veteran that his appeal was officially closed pursuant to his February 2006 request. Accordingly, as he withdrew his appeal; the July 2000 rating decision as to the claims of service connection for a skin disorder, a left knee disorder, sinusitis, macular hole of the right eye with visual defect and SFW of each hand is final. A subsequent unappealed September 2010 rating decision declined to reopen the claims of service connection for the hands and left knee. An unappealed December 2012 rating decision denied service connection for a left and right hip disorder on the basis that there was no evidence that the claimed condition exists and a condition of either hip neither occurred in nor was caused by service. This rating decision also declined to reopen the claims of service connection for left hand SFW, cervical neck condition with herniated disc at the C6 level, left knee disability, right eye macular hole with visual defect, skin rash and sinusitis. Subsequent March 2015 and January 2016 rating decisions declined to reopen the claims of service connection for a skin rash, sinusitis, right eye macular hole with defective decision, SFW of the hands, cervical neck condition with herniated disc at C6 level, a left knee disability and a disability of either hip. The present appeal arises from an October 2016 rating decision which also declined to reopen the claims of service connection for skin rash, sinusitis, right eye macular hole with defective decision, SFW of the right hand, cervical neck condition with herniated disc at C6 level, a left knee disability and a disability of either hip. Notably, in his December 2016 notice of disagreement, the Veteran clarified that his hand claim should be SFW of the left hand. Accordingly, the August 2017 Statement of the Case characterized the matter as SFW “right hand claimed as left hand.” As this is the claim certified before the Board (and as the January 2016 rating decision declined to reopen the claims of service connection for SFW of both hands), to ensure due process, the Board finds the Veteran’s appeal encompasses service connection for disabilities of both hands. See Percy v. Shinseki, 23 Vet. App. 37, 45 (2009). Sinusitis and Skin Rash Review of the newly received evidence since the December 2012 last final rating decision which declined to reopen the claims of service connection for skin rash and sinusitis, including VA and private treatment records and the Veteran’s statements, does not show any new evidence received is material, i.e., no evidence submitted pertains to an unestablished fact necessary to substantiate these claims. Specifically, although the Veteran has asserted that he experienced skin rash and sinus problems in service which have persisted, his VA and private treatment records since the December 2012 final rating decision are silent as to complaints of or treatment for skin rash and/or sinusitis. Notably, a February 2016 VA treatment report notes the Veteran reported a history of rashes; however, no rash was noted on examination. Although the Veteran asserts that he has experienced skin rash and sinus problems since service, these statements are cumulative as he made such claims prior to the December 2012 rating decision. See Bostain v West, 11 Vet. App. 124 (1998) (lay hearing testimony that is cumulative of previous contentions considered by decision maker at time of prior final disallowance of the claim is not new evidence). Accordingly, the Board finds that new and material evidence has not been received, and the claims of service connection for skin rash and sinusitis may not be reopened. Notably, the Veteran has requested VA examinations to substantiate his claims. See, e.g., February 2016 VA Form 27-0820, Report of General Information. However; the duty to assist by arranging for a VA examination or obtaining a medical opinion does not attach in a claim to reopen until/unless the previously denied claim is reopened. See 38 C.F.R. § 3.159(c)(4)(C)(iii). Hands, Hips, Neck, Left Knee, Right Eye Regarding the remaining claims, review of the newly received evidence since the September 2010 last final rating decision denying service connection for SFW of the right hand and the December 2012 last final rating decision which denied service connection for bilateral hip disabilities and declined to reopen the claims of service connection for left hand SFW, cervical neck condition with herniated disc at the C6 level, left knee disability and right eye macular hole with visual defect, in pertinent part, includes VA and private treatment records and statements from the Veteran. Specifically, VA treatment records note May 2011 complaints of bilateral hand numbness, and a private February 2013 imaging report (received in December 2016) notes chronic neck pain with cervical radiculopathy right upper extremity since June 1, 1975. VA treatment records include a February 2016 notation of hip pain; a March 2016 left knee X-ray report noting mild medial and lateral compartment joint space narrowing; an April 2016 eye clinic examination note of radiation maculopathy OD (right eye) secondary to looking at flare through starlight scope and a July 2016 orthopedic surgery note that the Veteran had neck popping injury in 1987 while having a haircut and he has lived with neck pain since. Accordingly, the Board finds the newly associated medical evidence sufficient to reopen the claims of service connection for SFW of the hands, bilateral hip disabilities, cervical neck condition with herniated disc at the C6 level, left knee disability and right eye macular hole with visual defect. The newly associated evidence speaks to a previously unproven element at the time of the Veteran’s prior denial (either no current disability and/or unrelated to service). Accordingly, this evidence is also material as it goes to the merits of the Veteran’s underlying service connection claims. As new and material evidence has been received, the claim for service connection for SFW of the hands, bilateral hip disabilities, cervical neck condition with herniated disc at the C6 level, left knee disability and right eye macular hole with visual defect are reopened. The Veteran’s STRs show treatment for injuries to both hands, left knee, neck pain and right eye macular hole. Post-service treatment records note his complaints of bilateral hand pain and numbness, pain starting in the back and radiating to the hips (thereby suggesting a secondary service connection theory of entitlement because service connect is in effect for a low back disability) and show X-ray findings of bilateral hip degenerative joint disease, chronic neck pain with cervical radiculopathy right upper extremity since injury in June 1975 and the Veteran’s assertion that his hips, hands, neck, left knee and right eye conditions have worsened over time. See, e.g., June 2013 VA Form 21-4138, Statement in Support of Claim. REASONS FOR REMAND Regarding the reopened claims of service connection for SFW of the hands, bilateral hip disabilities, cervical neck condition with herniated disc at the C6 level, and right eye macular hole with visual defect, the Board finds that remand for additional development is necessary. As noted above, the record includes evidence which suggests that the Veteran has current disabilities of both hands, neck and right eye which may be related to service and he has current disabilities of the hips which may be secondary to his service connected low back disability. In addition, although the Veteran was afforded VA left knee examination in August 2016, the opinion provided addresses only secondary service connection and does not include whether the left knee disability is directly related to left knee injury sustained in service. As such, the opinion does not provide the Board with the information it needs to decide the claim. Accordingly, VA examinations to obtain nexus opinions as to the claim of service connection for disabilities of the hands, hips, neck, left knee and right eye are necessary. On remand, complete updated VA and private treatment records pertinent to the Veteran’s claimed disorders should be obtained. The matters are REMANDED for the following action: 1. The AOJ should secure for the record copies of complete updated clinical records (any not already of record) of all VA and/or private treatment the Veteran has received for his claims on appeal. If the Veteran has received private treatment that is not yet documented in the record, the AOJ should ask the Veteran to provide the releases necessary for VA to secure the records of such treatment. 2. After the development requested in paragraph 1 is complete, please schedule the Veteran for an examination to determine the nature and likely etiology of any hand, hip, neck and left knee disorders. The Veteran’s claims file (to include this remand and all development sought above) must be reviewed by the examiner in conjunction with the examination. Any indicated tests or studies should be conducted. Based on review of the record, the examiner should provide an opinion that responds to the following: a) Please identify by diagnosis or functional impairment each hand, hip, neck and left knee disorder, including arthritis, found since the appeal period began with receipt of the Veteran’s June 2013 petition to reopen the claims. b) Is it at least as likely as not (50 percent or greater probability) that any currently diagnosed hand, hip, neck and/or left knee disorder (or disability due to functional impairment) had its onset in active service or is otherwise related to the Veteran’s active service? c) Is it at least as likely as not (50 percent probability or more) that any diagnosed hip, neck and/or left knee disorder was caused by the Veteran’s service-connected disabilities, including lumbar strain with degenerative disc disease, right ulnar nerve entrapment, and residuals of partial tear of medial collateral ligament of the right knee? d) Is it at least as likely as not (50 percent probability or more) that any diagnosed hip, neck and/or left knee disorder was aggravated by the Veteran’s service-connected disabilities, including lumbar strain with degenerative disc disease, right ulnar nerve entrapment, and residuals of partial tear of medial collateral ligament of the right knee? The clinician is informed that aggravation here is defined as any increase in disability. If the Veteran’s service-connected disabilities aggravated his hip, neck and/or left knee disabilities, the clinician should indicate, to the extent possible, the approximate level of disability (baseline) before the onset of the aggravation. In addressing the above question, the examiner should consider and discuss as necessary: • The Veteran’s service personnel records showing treatment for superficial fragment wound injury to each hand from explosive device. • STRs showing treatment for each hand, neck pain and left knee pain. • April 2000 private medical statement noting decreased range of cervical spine motion and pain, bilateral hand positive lateral instability test on both middle fingers indicating chronic sprain injury, positive Fabere Patrick’s test indicating bilateral hip pathology, and bilateral knee examination showing positive posterior drawer test indicative of chronic sprain of the posterior cruciate ligament. • January 2001 physical therapy records showing diagnoses of facet impingement syndrome, cervical strain and osteoarthritis and noting a history of 1992 initial back injury. • February 2002 VA treatment records noting C-5 radiculopathy and osteoarthritis distal and medial 1st and 2nd phalanges of right upper extremity. • March 2002 report of private magnetic resonance imaging (MRI) showing moderate mid and lower cervical spondylosis, mild central spinal stenosis C5-C6 and no disc herniation. • September 2002 left knee X-ray report showing minimal degenerative changes, right and left knee. • Veteran’s December 2002 assertion that he has developed a left knee disability due to added pressure as a result of favoring his service-connected right knee. • April 2003 notation that back pain radiates to hips. • January 2005 Veteran’s statement recalling 1986 neck injury in Okinawa while getting haircut. • May 2011 VA treatment records noting complaint of numbness in hands. • February 2013 private imaging report noting chronic neck pain with cervical radiculopathy right upper extremity since June 1, 1975. • August 2016 VA left knee examination report and opinion. The clinician must provide complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. If an opinion cannot be provided without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 3. After the development requested in paragraph 1 is complete, schedule the Veteran for a VA examination to determine the nature and likely etiology of any right eye disorder, including whether any were caused or aggravated by his military service. The Veteran’s claims file (to include this remand and all development sought above) must be reviewed by the examiner in conjunction with the examination. Any indicated tests or studies should be conducted. Based on review of the record, the examiner should provide an opinion that responds to the following: a) Did the Veteran have any right eye condition, not including any refractive error, that clearly and unmistakably (i.e., obvious, manifest, or undebatable) pre-dated service? b) As to any condition found in (a) to have obviously preexisted service, is it at least as likely as not (50 percent or more probable) that such disability underwent an increase in severity during the Veteran’s service? c) If it is at least as likely as not that any pre-existing mental health disability underwent an increase in severity during service, is it clear and unmistakable (i.e., obvious, manifest, or undebatable) that such increase in severity was due to the natural progress of the condition? d) Please identify any right eye disorders manifested during the appeal period since the Veteran’s June 2013 claim to reopen and provide an opinion as to whether it is at least as likely as not related to service? In addressing the above question, the examiner should consider and discuss as necessary: • STRs showing a November 1967 eye examination report noting no right eye impairment, July 1968 finding of hole in the macula of the right eye, November 1975 finding of right eye old faveomacular retinitis, a June 1977 finding of right eye corneal abrasion from a thorn bush and the Veteran’s complaints of pain and photophobia, a November 1980 report of right eye visual problems since a corneal abrasion about 20 years previously, a June 1988 finding of right eye visual field defect due to a macular hole with a notation that the Veteran reported a childhood ocular injury. • Buddy statements, dated in July 2001, August 2001 and November 2001 (and December 2002 Veteran’s statement), noting the Veteran’s military duties included standing night watch on the perimeter and using a Star Light Scope which “caused irreparable damage to his right eye.” Notably, the November 2001 statement is from a fellow service member who was a corpsman in the Veteran’s unit and treated him for eye complaints. • A May 2002 VA treatment report noting a complaint of photophobia secondary to solar retinitis, right eye. • An April 2003 medical statement that Veteran “developed a macular hole in the right eye while he was active duty military.” • And an April 2016 VA treatment report which includes an assessment of “radiation maculopathy OD – 2nd to looking at flare through starlight scope.” The clinician must provide complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. If an opinion cannot be provided without resort to speculation,   the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Hughes, Counsel