Citation Nr: 20004800 Decision Date: 01/21/20 Archive Date: 01/21/20 DOCKET NO. 16-32 744 DATE: January 21, 2020 ORDER New and material evidence to reopen entitlement to service connection for right and left inner elbow is granted. REMANDED Entitlement to service connection for an acquired psychiatric disorder to include post-traumatic stress disorder (PTSD) is remanded. Entitlement to service connection for right and left inner elbow/muscle/bicep pain/weakness/numbness is remanded. FINDINGS OF FACT 1. An April 2008 rating decision denied the claim of entitlement to service connection for right and left inner elbow/muscle/bicep pain/weakness/numbness. The Veteran did not appeal or submit new and material evidence within one year of notification of the April 2008 rating decision. Therefore, the April 2008 rating decision became final.   2. Additional evidence has since been received which is not cumulative or redundant of the evidence of record at the time of the April 2008 rating decision and relates to an unestablished fact necessary to prove the claims of entitlement to service connection for right and left inner elbow/muscle/bicep pain/weakness/ numbness. CONCLUSIONS OF LAW 1. The April 2008 rating decision denying service connection for right and left inner elbow/muscle/bicep pain/weakness/numbness is final. 38 U.S.C. § 7104; 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103. 2. New and material evidence has been received to reopen the claims of entitlement to service connection for right and left inner elbow/muscle/bicep pain/weakness/numbness, and the claim is reopened. 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 August 1996 to December 1999. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a December 2014 rating decision of a U.S. Department of Veterans Affairs (VA) Regional Office in Honolulu, Hawaii. In October 2019, the undersigned Veterans Law Judge held a hearing and a transcript is a part of the record.   There is new and material evidence to reopen entitlement to service connection for right and left inner elbow/muscle/bicep pain/weakness/ numbness, and the claim is reopened. Once the agency makes a final decision, the agency may consider a claim on the merits only if it receives new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Evidence is “new” if it was not previously submitted to agency decisionmakers. Evidence is “material” if, whether by itself or when considered with the record evidence from the prior final decision, it relates to an unestablished fact necessary to prove the claim. “New and material evidence” can be neither cumulative nor redundant of the prior final decision’s evidence and must raise a reasonable possibility of proving the claim. 38 C.F.R. § 3.156(a). The credibility of new and material evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The language of 38 C.F.R. § 3.156(a) creates a low threshold for finding evidence new and material. Evidence raises a reasonable possibility of proving the claim if it would trigger the agency’s duty to provide an examination in deciding a claim that was not final. Shade v. Shinseki, 24 Vet. App. 110 (2010). The April 2008 rating decision denied the Veteran’s claim for service connection because the evidence did not establish a chronic arm injury during active service, or a current disability related to his right and left inner elbow/muscle/bicep pain/weakness/numbness. At the time of that decision, the evidence of record included the Veteran’s service treatment and military personnel records from November 1995 to October 1999. The evidence received since the April 2008 rating decision includes evidence related to establishing chronic arm injuries beginning during active service, a current disability, and a connection, or nexus, between the two. This included VA treatment notes from March 2015 to August 2019, credible hearing testimony from the Veteran and third-party statements from October 2019, and the Veteran’s additional lay statements from throughout the period at issue. For purposes of determining if this evidence is new and material, the credibility of these statements is assumed. This evidence is new and material because it relates to an unestablished fact that is necessary to prove the claim. The record now includes additional medical and testimonial evidence related to the Veteran’s in-service arm injuries, a current disability, and nexus. Therefore, the claim is reopened. REASONS FOR REMAND 1. Entitlement to service connection for and acquired psychiatric disorder to include PTSD is remanded. The VA has a duty to assist, which includes providing a medical examination when necessary to make a decision on a claim. 38 C.F.R. § 3.159 (c)(4)(i). The VA will provide a medical examination or obtain a medical opinion if the record, including lay or medical evidence, contains competent evidence of a disability or persistent or recurrent symptoms of a disability that may be associated with an event, injury, or disease that occurred in service, but the record does not contain sufficient medical evidence to decide the claim. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 86 (2006). More information is needed to allow the Board to make a fully-informed decision. While the Veteran has a current diagnosis of PTSD, no examiner has opined whether the diagnosis is at least as likely as not related to an in-service stressor. At the October 2019 hearing, the undersigned Veterans Law Judge found the Veteran’s sworn testimony truthful and credible regarding his alleged stressors, to include his coerced participation in physical retribution against his fellow soldiers during training and in boxing despite injury and being held at gunpoint by local police. A VA PTSD examination based on these stressors is warranted. There are also other mental disorder diagnoses noted in the record. For example, in March, July, and December 2014, he was diagnosed with cannibis use disorder, alcohol use disorder, depression, and anxiety, in addition to PTSD. An examination should be scheduled to determine if the Veteran has any mental disorders other than PTSD due to his military service.   2. Entitlement to service connection for right and left inner elbow/muscle/bicep pain/weakness/numbness is remanded. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for a disorder manifested by right and left inner elbow/muscle/bicep pain/weakness/ numbness because no VA examiner has opined whether the Veteran has a current disability and, if so, whether his current disability is related to his active service. In Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), the Federal Circuit held that “pain alone, without an accompanying diagnosis of a present disease, can qualify as a disability” if it “reaches the level of a functional impairment of earning capacity.” Id. at 1367-69. In October 2019, the Veteran testified that he has pain in his arms and the undersigned Veterans Law Judge found the Veteran’s sworn testimony to be truthful and credible. Examination of whether this alleged arm pain is disabling and service-connected is warranted. The matters are REMANDED for the following actions: 1. Obtain any updated relevant VA and/or private treatment records to the extent possible. If records are unavailable, the Veteran’s claim file must be clearly documented, and the Veteran must be properly notified. 2. Schedule the Veteran for a psychiatric examination to determine the nature and cause of any PTSD. If the Veteran is diagnosed with PTSD, the examiner must explain how the diagnostic criteria are met and opine whether it is at least as likely as not related to the verified in-service stressors, to include his coerced participation in physical retribution against his fellow soldiers during training, in being forced to box despite being injured and being held at gunpoint by local police and being afraid that he would be killed.   If any other acquired psychiatric disorders are found to be present since the claim was filed, the examiner must opine whether each diagnosed disorder is at least as likely as not related to an in-service injury, event, or disease, to include the Veteran's coerced participation in physical retribution against his fellow soldiers during training, being forced to box despite being injured and being held at gunpoint by local police and being fearful for his life. The Veteran’s reports of in-service stressors have been found to be truthful and credible and the examination report must specifically and explicitly consider these credible reports by the Veteran.   Inform the examiner that 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 certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). 3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and cause of any right and left inner elbow/muscle/bicep pain/ weakness/numbness. The examiner must opine as to whether the Veteran’s arm pain symptoms, which he has reported since he filed his claim, is at least as likely as not related to the reported in-service events. The Veteran’s reports of in-service injuries to his right and left inner elbows, being hyperextended during a sanctioned boxing match, has been found to be truthful and credible and the examination report must specifically and explicitly consider these credible reports by the Veteran. If there is a medical basis to support or doubt the history provided, the examiner should provide a fully reasoned explanation. The examiner’s report must address whether the Veteran’s arm pain symptoms reach the level of a functional impairment of earning capacity. Inform the examiner that 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 certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training).   4. Readjudicate the appeal. If the full benefits sought for by the Veteran remain denied, issue a supplemental statement of the case and return the case to the Board. G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board James Hekel, 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.