Citation Nr: 18155438 Decision Date: 12/04/18 Archive Date: 12/04/18 DOCKET NO. 16-11 252A DATE: December 4, 2018 ORDER New and material evidence having been submitted, the claim for service connection for a shoulder disorder is reopened. New and material evidence having been submitted, the claim for service connection for a bilateral knee disorder is reopened. New and material evidence having been submitted, the claim for service connection for a right ankle disorder is reopened. New and material evidence having been submitted, the claim for service connection for a neck disorder is reopened. REMANDED Entitlement to service connection for a shoulder disorder is remanded. Entitlement to service connection for a bilateral knee disorder is remanded. Entitlement to service connection for a right ankle disorder is remanded. Entitlement to service connection for a neck disorder is remanded. FINDINGS OF FACT 1. In an April 2005 rating decision, the Regional Office (RO) denied service connection for a shoulder disorder and denied the claim to reopen the claims for service connection for a bilateral knee disorder, right ankle disorder, and neck disorder. The Veteran did not appeal that decision or submit new and material evidence within one year thereafter. 2. The evidence received since the April 2005 rating decision, by itself or in conjunction with previously considered evidence, is not cumulative or redundant of the evidence previously of record and relates to an unestablished fact necessary to substantiate the claim. CONCLUSIONS OF LAW 1. The April 2005 rating decision is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104, 3.156, 20.200, 20.201, 20.302, 20.1103 (2017). 2. The evidence received since the April 2005 rating decision is new and material as to the claims for service connection for a shoulder disorder, bilateral knee disorder, right ankle disorder, and neck disorder, and the claims are reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1987 to June 1989. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an October 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. In order to reopen a claim which has been denied by a final decision, a claimant must present new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); see also Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001) (regardless of action taken by RO, Board must determine whether new and material evidence has been received subsequent to an unappealed RO denial). New and material evidence means evidence not previously submitted to agency decision makers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is 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 which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). For the purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, “credibility” of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). The United States Court of Appeals for Veterans Claims (Court) has held that the threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, to include by triggering the Secretary’s duty to assist. Id. at 118. The RO previously considered and denied a claim for service connection for a neck disorder, bilateral knee disorder, and right ankle disorder in a June 1994 rating decision. The RO noted that the service treatment records do document treatment for an acute neck strain, acute knee pain, and acute right ankle strain; however, they were shown to be temporary conditions that resolved with treatment. The RO found that there was no permanent residual disability, as there was no medical evidence of treatment for any of these conditions since his discharge from military service. The Veteran was notified of that decision and of his appellate rights, but he did not appeal that determination or submit new and material evidence within one year thereafter. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.1103. Therefore, the June 1994 rating decision is final. In November 2004, the Veteran filed an application to reopen the claim, as well as a new claim for service connection for a shoulder disorder. In an April 2005 rating decision, the RO denied the claim for service connection for a shoulder disorder and denied reopening the claims for service connection for a neck disorder, bilateral knee disorder, and right ankle disorder. The RO determined that the Veteran did not submit new and material evidence for the previously denied claims. The RO also found that there was no medical evidence of a chronic shoulder condition during the Veteran’s military service and that there was no medical evidence establishing a relationship between his military service and a current shoulder condition. The Veteran was notified of that decision and of his appellate rights, but he did not appeal that determination or submit new and material evidence within one year thereafter. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.1103. Therefore, the April 2005 rating decision is final. At the time of the April 2005 rating decision, the evidence of record included the Veteran’s service treatment records, a January 1990 emergency room report from Bleckley Memorial Hospital, and lay statements from the Veteran. The evidence received since the April 2005 rating decision includes additional lay statements from the Veteran, private treatment records, letters from his treating physicians, Dr. J.O. and Dr. R.V.N. (initial used to protect privacy), a January 2011 VA examination report, an August 2012 VA addendum opinion, and a September 2012 VA addendum opinion. The Veteran’s private treatment records confirm ongoing treatment for the claimed disorder, including bilateral knee surgery and a diagnosis of cervical spondylosis with radiculopathy. See March 2010, July 2010, November 2010 private treatment records. The Veteran has claimed that his neck, right ankle, and bilateral knee disorders are due to injuries sustained during a motor vehicle accident in service in 1988. He has also asserted that he injured his shoulder playing football while stationed in Japan. See November 2010 statement. He explained that he did not list any of these injuries at separation because he was pursuing a post-military career with the state police. Id. In addition, the Veteran has reported that he sought treatment from VA and that he was medically discharged as a result of his injuries in service. See March 2016 VA Form 9. Dr. J.O. has provided a positive nexus opinion for the right knee, shoulders, and neck. This evidence was not previously considered by the RO, relates to an unestablished fact necessary to substantiate the claims, and could reasonably substantiate the claims. Moreover, for purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Thus, the Board finds that this evidence is both new and material, and the claims for service connection are reopened. However, as will be explained below, the Board is of the opinion that further development is necessary before the substantive merits of the Veteran’s claims can be meaningfully addressed. REASONS FOR REMAND Initially, the Board notes a DD Form 214 shows that the Veteran had a period of active duty from May 1987 to June 1989 and indicates that he had also had three years and three months of prior active service. However, the claims file does not contain verification of an earlier period of service. Therefore, the Agency of Original Jurisdiction (AOJ) should attempt to verify any earlier period of active service. The Veteran has also reported that he sought treatment at a VA medical facility in Dublin, Georgia, following his discharge from service. See March 2016 VA Form 9. He has also indicated that he is currently receiving treatment at the VA Medical Center (VAMC) in Decatur, Georgia. Id. However, the claims file does not contain any VA treatment records. Thus, on remand, the AOJ should attempt to obtain any outstanding medical records. In addition, it is unclear whether the VA examiners properly considered the extent of the Veteran’s in-service injuries, particularly with respect to the cervical spine. Initially, the service treatment records were unavailable for review. See January 2011 VA examination report. Subsequently, the service treatment records were made available on microfiche; however, in an addendum opinion, the VA examiner only referred to a May 1988 complaint of upper back and shoulder pain, status post January 1988 motor vehicle accident and an October 1988 orthopedic consultation. In September 2012, the RO requested another medical opinion after the service treatment records were printed and made available for review. See September 2012 Request for Physical Examination. In the September 2012 addendum opinion, the examiner stated that the Veteran had no ongoing treatment for his knees, shoulders, ankles, or neck, and did not list these as problems in his annual physical. The examiner opined that the medical findings twenty-three years later are not able to be connected to his temporary treatment in service. However, the examiner did not discuss the service treatment records, which are replete with references to an unresolved, chronic cervical/trapezius strain, status post January 1988 motor vehicle accident. A January 1988 emergency department treatment note documents complaints of neck pain and left knee pain following a head-on collision with a retaining wall at approximately 60 miles per hour. The Veteran was placed on light duty and continued to complain of neck, shoulder and upper back pain. In September 1988, he complained of ongoing neck and back pain, and x-rays showed a reverse curvature of the cervical spine. He was diagnosed with an unresolved cervical and trapezius strain. In October 1988, he was prescribed intermittent cervical traction. In December 1988, it was noted that he had been on light duty for approximately one year due to chronic neck pain. He was referred to the physical evaluation board for final disposition. Moreover, as discussed above, there may be outstanding VA treatment records, including records shortly after the Veteran’s military discharge. For these reasons, the Board finds that an additional VA medical opinion is needed to determine the nature and etiology of any neck, knee, shoulder or right ankle disability that may be present. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The matters are REMANDED for the following action: 1. The AOJ should verify whether the Veteran had any earlier period of active service. A DD Form 214 shows that the Veteran had a period of active duty from May 1987 to June 1989, but also indicates that he had also had three years and three months of prior active service. 2. The AOJ should clarify whether the Veteran is claiming service connection for his right or left shoulder or both shoulders. 3. The AOJ should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his neck, bilateral knee, shoulder, and right ankle disorders. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. The AOJ should also obtain any outstanding VA medical records. A specific request should be made for VA medical records from VAMC Atlanta in Decatur, Georgia, (including records dated shortly after his military service) and VAMC Carl Vinson in Dublin, Georgia. 4. After completing the foregoing development, the Veteran should be afforded a VA examination to determine the nature and etiology of any neck, bilateral knee, shoulder, or right ankle disorders that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran’s service treatment records, post-service medical records, and statements. The examiner should note that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the appellant, the examiner should provide a fully reasoned explanation. The examiner should opine as to whether it is at least as likely as not that the Veteran has a neck, knee, shoulder or right ankle disorder that is related to his military service, to include his injury and symptomatology therein. In rendering this opinion, the examiner should consider the service treatment records, which document complaints of right shoulder pain in October 1986 after falling on his shoulder during a football game; complaints of right ankle pain in March 1987 and April 1987 with a diagnosis of a right ankle strain; a January 1988 motor vehicle accident with complaints of neck and left knee pain; the diagnosis of chronic cervical strain in service; private treatment records from March 2010 to November 2010; the VA examination reports from January 2011, August 2012, and September 2012; and the Veteran’s lay assertions. (The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important “that each disability be viewed in relation to its history[,]” 38 C.F.R. § 4.1, copies of all pertinent records in the appellant’s claims file, or in the alternative, the claims file, must be made available to the examiner for review. 5. After completing these actions, the AOJ should conduct any other development as may be indicated by a response received as a consequence of the actions taken in the preceding paragraphs. J.W. ZISSIMOS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D.S. Chilcote, Associate Counsel