Citation Nr: 18116276 Decision Date: 07/05/18 Archive Date: 07/05/18 DOCKET NO. 14-37 870 DATE: July 5, 2018 ORDER Entitlement to service connection for a left wrist disorder is dismissed. The petition to reopen the previously denied claim for entitlement to service connection for right wrist pain is dismissed. Entitlement to a rating in excess of 10 percent for asthma is dismissed. Entitlement to service connection for a back disorder is reopened. Entitlement to service connection for residuals of a right shoulder injury is reopened. REMANDED Entitlement to service connection for a back disorder is remanded. Entitlement to service connection for residuals of a right shoulder injury is remanded. Entitlement to a rating in excess of 10 percent for a medial meniscus tear, right knee, is remanded. Entitlement to a rating in excess of 10 percent for a left knee strain associated with medial meniscus tear, right knee, is remanded. FINDINGS OF FACT 1. At her January 2018 hearing before the Board of Veterans’ Appeals (Board), the Veteran expressed a desire to withdraw her claims for entitlement to service connection for a left wrist disorder; the petition to reopen the previously denied claim for service connection for right wrist pain; and entitlement to a rating in excess of 10 percent for asthma. 2. In a May 2005 rating decision, the RO denied service connection for back pain and this rating decision was not appealed. 3. Evidence received since the May 2005 rating decision includes evidence that is not cumulative or redundant of the evidence previously of record and is sufficient to raise a reasonable possibility of substantiating the Veteran’s claim of a lower back disorder. 4. In a May 2005 rating decision, the RO denied service connection for a residuals of a right shoulder injury and this rating decision was not appealed. 5. Evidence received since the May 2005 rating decision includes evidence that is not cumulative or redundant of the evidence previously of record and is sufficient to raise a reasonable possibility of substantiating the Veteran’s claim of a right shoulder disorder. CONCLUSIONS OF LAW 1. The Veteran’s claims for entitlement to service connection for a left wrist disorder; the petition to reopen the previously denied claim for service connection for right wrist pain; and entitlement to a rating in excess of 10 percent for asthma are dismissed. 38 C.F.R. § 20.204. 2. The May 2005 rating decision denying the Veteran’s claim for back pain became final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017). 3. The criteria for reopening the Veteran’s claim for a lower back disorder have been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156, 20.302 (2017). 4. The May 2005 rating decision denying the Veteran’s claim for residuals of a right shoulder injury became final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017). 5. The criteria for reopening the Veteran’s claim for right shoulder disorder have been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156, 20.302 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Withdrawn Claims The Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105 (2012). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2017). Withdrawal may be made by the appellant or by his or her authorized representative. Id. The Veteran has withdrawn her appeal of the issues of entitlement to service connection for a left wrist disorder; the petition to reopen the previously denied claim for right wrist pain; and entitlement to a rating in excess of 10 percent for asthma at her January 2018 video conference hearing and, hence, there remain no allegations of errors of fact or law for appellate consideration as to these issues. Accordingly, the Board does not have jurisdiction to review the appeal of these issues, and they are dismissed. Reopened Claims In order to reopen a claim that has been previously considered and denied in a final and binding decision, the claimant must present new and material evidence. 38 U.S.C. § 5108, 38 C.F.R. § 3.156 (a). 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). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. Shade v. Shinseki, 24 Vet. App. 110 (2010). Regardless of previous determinations, the Board must consider the question of whether new and material evidence has been received because it goes to the Board’s jurisdiction to reach the underlying claim and adjudicate the claim de novo. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). 1. Entitlement to service connection for low back pain is reopened. After two previous denials of service connection for low back pain, the Veteran applied to reopen that claim in March 2005. The RO reopened the claim, but denied it again in May 2005, a decision that was not appealed and became final. The Veteran sought to reopen the claim in May 2012. The RO reopened the claim and provided the Veteran with a VA examination of her thoracolumbar spine, in which the Veteran provided a history of the ailment that had not previously been before decision makers. In her January 2018 Board hearing, the Veteran again discussed the history of her back problems, and linked them to an in-service truck accident. The Board finds that the Veteran’s discussions of the history of her back problem constitute evidence not previously submitted to agency decision makers, and otherwise satisfy the criteria for new and material evidence, warranting reopening of the claim. 2. Entitlement to service connection for residuals of a right shoulder injury is reopened. The Veteran seeks to reopen her claim for service connection for a right shoulder disorder, which was denied was denied in January 2004 for lack of a current diagnosis. The RO denied reopening of the claim in May 2005 for lack of new and material evidence. The Board notes, however, that in her January 2018 Board hearing the Veteran testified that her shoulder pain had been ongoing since her separation from service and was related to an in-service truck accident. The Board notes that the claims file contains a February 2018 statement from another servicemember supporting the Veteran’s involvement in a significant in-service motor vehicle accident; this evidence was not previously available to decision makers. The evidence submitted to reopen a claim is presumed to be credible for the purpose of determining whether new and material evidence has been received. Duran v. Brown, 7 Vet. App. 216, 220 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). The focus is on whether the new evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA’s duty to assist or through consideration of an alternative theory of entitlement. Shade, supra, 24 Vet. App. 118. Accordingly, the Board finds that new and material evidence has been received and that reopening the Veteran’s claim for a right shoulder disorder is warranted. REASONS FOR REMAND 1. Entitlement to service connection for a back disorder 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 Veteran was provided a VA back examination in January 2013. The examiner opined that the there was less than a 50 percent probability that the Veteran’s lower back problem stemmed from her service, identifying a 2003 post-service motor vehicle accident for which she sought VA emergency room treatment as the start of her back pain. However, the examiner’s one-sentence abbreviated rationale failed to address the Veteran’s own account of the history of her back issues, or her report of back pain at her separation examination. An adequate rationale must be provided for any medical opinion rendered; a conclusory, contradictory or incomplete analysis is not adequate. Stefl v. Nicholson, 21 Vet. App. 120 (2007). Consequently, the Board finds that the opinion is an inadequate basis for adjudicating the Veteran’s claim. The Board notes that in her January 2018 Board hearing, the Veteran asserted that her back problem stemmed from a truck accident that occurred in service, as she and other servicemembers were being transported in the course of their duties. The Board notes that there appears to be no record of this accident in the Veteran’s claims file, but also notes that the claims file apparently does not contain the Veteran’s personnel records, nor the record of her medical evaluation board (MEB) proceeding. As part of its duty to assist, VA is required to obtain the Veteran’s relevant medical and other service records. 38 U.S.C. § 5103A(c) (2012); 38 C.F.R. § 3.159(c) (2017). The Veteran also asserted at her hearing that her back problems had worsened since her last VA back examination. The Board finds that remand is necessary, to provide a new back examination and medical opinion, and to obtain pertinent records. 2. Entitlement to service connection for residuals of a right shoulder injury is remanded. As noted above, the Board is herein reopening the Veteran’s claim for service connection for a right shoulder disability. The Veteran attributes her right shoulder issues to the reported in-service truck accident, or in the alternative to her service-connected knee disabilities. The Veteran asserts that she has had right shoulder pain since service. However, the Veteran has not yet been afforded a VA shoulder examination. In light of the new and material evidence introduced, the Board will remand for a VA shoulder examination to determine the nature and etiology of her right shoulder disability. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79 (2006).. 3. Entitlement to a rating in excess of 10 percent for a medial meniscus tear, right knee, is remanded. 4. Entitlement to a rating in excess of 10 percent for a left knee strain associated with medial meniscus tear, right knee, is remanded. At her January 2018 Board hearing, the Veteran testified that both of her knees had worsened substantially since her prior VA examination, which was in October 2012. When a claimant asserts that the severity of a disability has increased since the most recent rating examination, an additional examination is appropriate. Snuffer v. Gober, 10 Vet. App. 400 (1997). The Board finds that a remand is appropriate here, to provide the Veteran with a new VA examination to assess the current level of symptomatology of the Veteran’s bilateral knees. The matters are REMANDED for the following action: 1. Undertake appropriate efforts to obtain any relevant outstanding VA or private medical records, to include the Veteran’s personnel records and medical evaluation board records, and associate them with the claims file. 2. Undertake appropriate efforts to contact the Veteran and solicit any additional information the Veteran may have concerning date of occurrence and other specifics of an in-service deuce-and-a-half truck accident described by the Veteran in her January 2018 Board hearing, and associate any evidence received with the claims file. 3. Thereafter, if documentation of the in-service deuce-and-a-half truck accident described by the Veteran in her January 2018 Board hearing is not contained in additional evidence received after this Remand, undertake appropriate efforts to contact the Joint Services Records Research Center (JSRRC) and solicit all relevant evidence concerning the Veteran’s in-service deuce-and-a-half truck accident. 4. Thereafter, afford the Veteran a VA examination to assess the current severity of her right and left knee disabilities. The claims file must be provided to the examiner, who must note his or her review of the file, including all VA and private treatment records. The examiner must obtain a detailed clinical history from the Veteran. All pertinent pathology found on examination must be noted in the report of the evaluation. Any testing deemed necessary must be performed. The examiner is asked to identify the symptoms and severity of any impairments that currently result from the Veteran’s service-connected knee disabilities, and discuss their functional effects. The examiner is advised that testing of joints must include testing for impairment of function due to such factors as pain on motion, weakened movement, excess fatigability, diminished endurance, or incoordination. Range-of-motion testing for both knees should include both active and passive motion, motion in weight-bearing and non-weight-bearing, and, if possible, the range of motion of the opposite undamaged joint. The examiner must express an opinion on whether pain could significantly limit the Veteran’s functional ability, to include interference with employment, and that determination should, if feasible, be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups. The examiner must attempt to elicit information directly from the Veteran as well as from the record regarding the severity, frequency, duration, and functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees cannot be given. Any general inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. The examiner is advised that the Veteran is competent to report history and symptoms and that his reports must be considered in formulating any requested opinion. If the examiner rejects the Veteran’s reports the examiner must provide a rationale for doing so. A complete rationale must be given for all opinions and conclusions expressed. If it is not possible to provide a requested opinion without resorting to speculation, the examiner should state why speculation would be required (e.g., if the requested determination is beyond the scope of current medical knowledge, actual causation cannot be selected from multiple potential causes, etc.). If there are insufficient facts or data within the claims file, the examiner should identify the relevant testing, specialist’s opinion or other information needed to provide the requested opinion. 5. Thereafter, afford the Veteran VA examinations to assess the current the nature and etiology of any currently diagnosed lower back and right shoulder disability. The Veteran’s claims file must be provided to the examiner and the examiner should note his or her review of the file. The examiner must also review the Veteran’s VA medical records and note that these have been reviewed. The examiner must obtain a detailed clinical history from the Veteran. All pertinent pathology found on examination must be noted in the report of the evaluation. Any testing deemed necessary must be performed. The examiner should respond to the following: For each lower back and right shoulder disability diagnosed, the examiner should offer comments and an opinion addressing whether it is at least as likely as not (i.e., probability of 50 percent or greater): (a) that the diagnosed disability began during service, or is causally or etiologically due to symptoms experienced during service; and (b) that the diagnosed disability is caused by, or aggravated (beyond the disability’s natural progression) by any service-connected knee disability, including any required treatment, to include surgeries; or by any other service-connected disability identified in the course of examination or already granted by VA, including any required treatment for such disability, to include surgeries. “Aggravated” in this context means a persistent worsening of the underlying condition, as opposed to a temporary or intermittent flare-up of symptomatology which then resolves to the baseline level. If such a worsening is present, the examiner should indicate, to the extent possible, the approximate level of severity of the disorder before the persistent worsening (i.e., a baseline), as well as after the worsening. CAROLINE B. FLEMING Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD David S. Katz, Associate Counsel