Citation Nr: 19137366 Decision Date: 05/14/19 Archive Date: 05/14/19 DOCKET NO. 16-01 909 DATE: May 14, 2019 ORDER In the absence of new and material evidence, the claim to reopen service connection for a left shoulder disability, to include as secondary to a service-connected left knee disability, is denied. REMANDED Entitlement to service connection for a right elbow disability, to include as secondary to a service-connected left knee disability, is remanded. Entitlement to an increased rating for a left knee disability, currently rated as 10 percent disabling, is remanded. Entitlement to an increased rating for bipolar disorder, currently rated as 30 percent disabling, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The January 2015 rating decision denying service connection for a left shoulder disability was not appealed and became final. 2. Evidence submitted since the January 2015 rating decision is not new and material and does not raise a reasonable possibility of substantiating the Veteran’s claim of entitlement to service connection for a left shoulder disability. CONCLUSIONS OF LAW 1. The January 2015 rating decision declining to reopen a claim of service connection for a left shoulder disability is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.201, 20.302, 20.1103. 2. New and material evidence has not been received to reopen the claim for service connection for a left shoulder disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from U.S. Coast Guard from November 2001 to February 2007. The Veteran testified at a hearing before the undersigned Veterans Law Judge in February 2019. A transcript of the hearing has been associated with the record. 1. Whether new and material evidence has been submitted to reopen a claim of service connection for a left shoulder disability, to include as secondary to a service-connected left knee disability New and Material Evidence Legal Authority A claimant may reopen a finally adjudicated claim by submitting new and material evidence. 38 U.S.C. §§ 5108, 7103, 7104, 7105; 38 C.F.R. §§ 3.156, 20.1100. New evidence means existing evidence not previously submitted to agency decision makers. 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. 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 sustaining the claim. 38 C.F.R. § 3.156(a). New and material evidence need not be received as to each previously unproven element of a claim in order to justify reopening thereof. See Shade v. Shinseki, 24 Vet. App. 110, 120 (2010). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is presumed. The only exception would be where evidence presented is inherently incredible. Justus v. Principi, 3 Vet. App. 510 (1992). Analysis The Veteran’s claim of service connection for a left shoulder disability was denied by a January 2015 rating decision. A December 2015 Statement of the Case continued this denial. The Veteran was notified of his appellate rights. Although the Veteran subsequently appealed the denial of his claim for an increased rating for bipolar disorder, the Veteran did not appeal the claim of service connection for a left shoulder disability within one year. Because the Veteran did not appeal the determination or submit new and material evidence within one year of the decision, the January 2015 rating decision became final. At the time of the January 2015 rating decision, the evidence of record consisted of the Veteran’s service medical records, post-service VA and private medical records, and a January 2015 VA examination. The evidence also included the Veteran’s lay statements that his current left shoulder condition was related to a service-connected left knee disability. The January 2015 rating decision found there was no competent evidence that the left shoulder disability was related to the left knee condition. Since the January 2015 decision, the Board has received newly submitted evidence, including VA medical records which show ongoing treatment for a left shoulder condition. Records from the Social Security Administration also show that the Veteran has a left shoulder disability. However, this evidence is redundant because the medical evidence available in January 2015 also showed treatment for a left shoulder condition. The new evidence includes an October 2015 VA examination of the left shoulder. The October 2015 VA examiner concluded that the fall which caused the left shoulder injury was not due to the service-connected left knee disability, but rather due to a wet inclined surface, as noted in a history obtained by a private orthopedist. The October 2015 VA examination does not show that the Veteran’s claimed condition is secondary to a service-connected disability, and therefore is not material. The newly submitted evidence includes the Veteran’s February 2019 hearing testimony that his left shoulder disability is related to his left knee disability. However, this contention is redundant because the Veteran had made the same contention at the time of the January 2015 rating decision. The January 2015 rating decision acknowledged that the Veteran had a current left shoulder disability and a service-connected left knee disability. The rating decision was based on the lack of evidence that the Veteran’s left shoulder disability was related to the left knee disability. The Veteran has not submitted any competent evidence to support a nexus between the left shoulder disability and the left knee disability. The lack of such a nexus is the basis for the prior final rating decision. As such, the evidence submitted after January 2015 does not relate to an unestablished fact necessary to substantiate the claim. As none of the additional evidence is new and material, the service connection claim for a left shoulder disability is not reopened. REASONS FOR REMAND 1. Entitlement to service connection for a right elbow disability, to include as secondary to a service-connected left knee disability, is remanded. The Veteran contends that his right elbow disability is due to a fall caused by his service-connected left knee disability. Service connection may be granted on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. The evidence must show: (1) that a current disability exists; and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated (permanently worsened in severity beyond its natural progress) by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448-49 (1995). The Veteran was provided with a VA elbow examination in February 2017. The examiner concluded that the Veteran’s right elbow condition was not aggravated by the left knee disability. However, the examiner did not comment as to whether the claimed condition was at least as likely as not proximately due to or the result of the Veteran’s service-connected left knee condition. The Board finds that a remand is necessary for an addendum VA medical opinion as to whether the Veteran’s right elbow disability was proximately caused by his service-connected left knee disability. 2. Entitlement to an increased rating for a left knee disability, currently rated as 10 percent disabling, is remanded. 3. Entitlement to an increased rating for bipolar disorder, currently rated as 30 percent disabling, is remanded. 4. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. The Veteran was last provided with a VA examination for his left knee disability in January 2017. Since that examination, the Veteran has reported left knee symptoms have worsened and cause increased instability. The Veteran is competent to report a worsening of symptoms. Proscelle v. Derwinski, 2 Vet. App. 629 (1992) (holding that, in general, to warrant a new VA examination, a claimant need only submit competent testimony that symptoms, reasonably construed as related to the service-connected disability, have increased in severity since the last evaluation). The Veteran was last provided with a VA psychiatric examination in January 2015. The Veteran was hospitalized for worsening mental health symptoms in February 2016. The February 2016 hospitalization provides evidence of worsening mental health symptoms. VA’s duty to assist includes providing a new medical examination when a veteran asserts, or provides evidence, that a disability has worsened, or in cases where the available evidence is too old for an adequate evaluation of the current condition. Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993). The Veteran should be provided an opportunity to report for VA examinations to ascertain the current severity and manifestations of his left knee disaiblity and bilpolar disorder. Finally, because a decision on the remanded issues of service connection for right elbow, increased rating for left knee, and increased rating for bipolar disorder, could significantly impact a decision on the issue of entitlement to TDIU, the issues are inextricably intertwined. A remand of the claim for TDIU is required. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s right elbow disability is at least as likely as not related to the Veteran’s service-connected left knee disability, to include whether it was proximately due to service-connected disability. The examiner must consider the Veteran’s statements that his left knee disability caused him to fall and injure his right elbow. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected left knee disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to the left knee disability alone and discuss the effect of the Veteran’s left knee disability on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected bipolar disorder. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms. To the extent possible, the examiner should identify any symptoms and social and occupational impairment due to his bipolar disorder alone. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Casey, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.