Citation Nr: 20021396 Decision Date: 03/25/20 Archive Date: 03/25/20 DOCKET NO. 17-40 768 DATE: March 25, 2020 ORDER New and material evidence having been received, the claim of entitlement to service connection for a right elbow disorder is reopened. REMANDED Entitlement to service connection for a right elbow disorder is remanded. Entitlement to service connection for a left arm disorder is remanded. Entitlement to service connection for a low back disorder is remanded. Entitlement to service connection for a prostate disorder is remanded. FINDING OF FACT An unappealed September 1978 rating decision denied a claim of entitlement to service connection for a right elbow disorder; evidence received since that rating decision relates to unestablished facts necessary to substantiate the claim of entitlement to service connection for a right elbow disorder. CONCLUSION OF LAW The September 1978 rating decision is final; new and material evidence has been received to reopen the claim of entitlement to service connection for a right elbow disorder. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156, 20.1103. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1966 to October 1966. New and material evidence having been submitted, the claim of entitlement to service connection for a right elbow disorder is reopened. A claim that has been denied in an unappealed rating decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is evidence not previously submitted to agency decisionmakers. Material evidence means 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 previously of record and must raise a reasonable possibility of substantiating the claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). The United States Court of Appeals for the Federal Circuit has held, however, that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board. Anglin v. West, 203 F.3d 1343, 1347 (2000). In deciding whether new and material evidence has been submitted, the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is generally “low.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Entitlement to service connection for a right elbow disorder was denied in a September 1978 rating decision. The only basis provided for the denial was “failure to furnish requested evidence.” The appellant did not perfect a timely appeal to this decision, and it is final. 38 U.S.C. § 7105. The Veteran submitted a claim in January 2014 to reopen the issue of entitlement to service connection for a left elbow disorder. He was provided with a VA examination in June 2014. In a May 2015 statement, as well as at his September 2019 Board hearing, the Veteran reported that during physical training in service, he fell and aggravated a preservice right elbow injury. New evidence will raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary’s duty to assist by providing a medical opinion. Here, the new evidence has already triggered the duty to assist, resulting in the opinion provided in June 2014 by a VA examiner. The Board thus reopens the Veteran’s claim of entitlement to service connection for a right elbow disorder for a de novo review on the merits. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). REASONS FOR REMAND At his September 2019 Board hearing, the Veteran reported VA treatment for his claimed disorders in Atlanta, Georgia since approximately 2015, and in Columbia, South Carolina since approximately 2016. These records are not associated with the record. As they are potentially relevant to all the Veteran’s claims they must be obtained. Entitlement to service connection for a right elbow disorder is remanded. The Veteran was provided a VA examination to consider the nature and etiology of his claimed right elbow disorder in June 2014. The examiner diagnosed a right elbow supracondylar fracture and opined that the disorder preexisted the Veteran’s active duty service and was not aggravated thereby. However, while the Veteran reported a history of a right elbow fracture at his January 1966 service entrance examination, clinical evaluation at that time revealed “normal” upper extremities. In this regard, the history of pre-service existence of conditions recorded at the time of examination does not constitute a “notation” of such conditions. 38 C.F.R. § 3.304 (b)(1). As no residuals of the right elbow fracture were noted at the time of the Veteran’s entrance to service, VA may not find that a right elbow disorder was “noted” on entrance to service. However, the Board finds there is clear and unmistakable evidence to rebut the presumptions of soundness. Namely, the Veteran’s reported history was confirmed during service by examinations and x-rays taken in August and September 1966. Thus, the presumption of soundness is rebutted and the Veteran’s right elbow is not presumed to have been sound at entry to service. The Board finds that the right elbow fracture pre-existed service. Having found that a right elbow fracture pre-existed service, the question is now whether the pre-existing disability was aggravated by service. For the presumption of aggravation to be invoked, there must be evidence that there was an increase in the severity of the disability during service. 38 C.F.R. § 3.306. It is clear from the service treatment records (STRs) that the right elbow and residual muscle weakness in the bicep were affected by physical training and exercises in service and ultimately prevented the Veteran from remaining in service. The Veteran has also testified that he fell from the monkey bars in service, re-injuring the elbow. However, it is not clear if these were temporary flare-ups of the elbow or a lasting worsening of the condition. Intermittent or temporary flare-ups during service of a preexisting injury or disease do not constitute aggravation; rather, the underlying condition, as contrasted with symptoms, must have worsened. Verdon v. Brown, 8 Vet. App. 529, 537 (1996). Remand is necessary to obtain a medical opinion addressing this question. Entitlement to service connection for a left arm disorder is remanded. At his September 2019 Board hearing, the Veteran argued that his claimed left arm disorder developed during service due to compensation for his right elbow disorder. The service treatment records document that the Veteran struggled with physical training due to right elbow problems. Remand is required to afford the Veteran a VA examination to address the nature and etiology of the claimed left arm disorder. Additionally, based on his hearing testimony, if the right elbow disorder is found to be service connected an opinion must also be obtained addressing whether a left arm disorder is caused or aggravated by the right elbow disorder. Entitlement to service connection for a low back disorder is remanded. The Veteran asserted at his September 2019 Board hearing that his low back disorder was caused by a fall from monkey bars during service. In a September 2019 opinion, Dr. T.J., a private physician, opined that it was “reasonable to believe that previous trauma, such as falling from height and landing on the ground could more likely than not increase the precipitation of degenerative changes in the lumbar spine.” While Dr. T.J.’s opinion suggests that the Veteran’s low back disorder may be related to the reported in-service injury, Dr. T.J. did not expressly opine that the low back disorder was, at least as likely as not, related to the specific in-service fall in question. Thus, Dr. T.J.’s opinion is insufficient to support the claim for service connection. Remand is required to afford the Veteran a VA examination to consider the nature and etiology of the claimed low back disorder. Entitlement to service connection for a prostate disorder is remanded. In a May 2015 statement, the Veteran credibly reported receiving treatment for venereal disease during service and stated that his doctors told him that his prostate disorder may be related to that illness. Remand is required to afford the Veteran a VA examination to address the nature and etiology of his claimed prostate disorder. Accordingly, the matters are REMANDED for the following action: 1. Obtain all relevant, outstanding VA treatment records dated since 2015 to the present, to include any outstanding record of treatment at Atlanta, Georgia and Columbia, South Carolina VA facilities. If the agency of original jurisdiction cannot locate such records, it must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The agency of original jurisdiction must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims. The claimant must then be given an opportunity to respond. 2. Thereafter, obtain an addendum opinion from the examiner who conducted the June 2014 VA elbow examination or from an appropriate medical professional if that examiner is not available. The examiner should state: a) Whether the pain and functional limitations caused by the pre-existing right elbow condition in service represent intermittent or temporary flare-ups or a worsening of the underlying condition. Why? Please consider the available evidence pertaining to manifestations of the disability prior to, during, and subsequent to service. b) If the pain and functional limitations caused by the pre-existing right elbow condition do represent a worsening of the underlying condition, is there clear and unmistakable evidence that the worsening is due to the natural progress of the condition? If yes, why? Please provide reasons for all conclusions. 3. After instructions one and two, above, have been completed, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any left arm and low back disorders. For any diagnosed low back disorder that has been present at any time since January 10, 2014, the examiner must opine whether it is at least as likely as not incurred in or otherwise related to the Veteran’s active-duty service, including a fall during physical training, reported in the May 2015 statement and September 2019 Board hearing testimony. For each and every diagnosed left arm disorder that has been present at any time since January 10, 2014, the examiner must opine whether it is at least as likely as not incurred in or otherwise related to the Veteran’s active-duty service, to include as a result of compensation for a right elbow disorder during physical training, as reported in the September 2019 Board hearing testimony. For each diagnosed left arm disorder that has been present at any time since January 10, 2014, the examiner must opine whether it is at least as likely as not proximately due to a service-connected right elbow disorder. If not, the examiner must state whether a left arm disorder is at least as likely as not aggravated beyond its natural progression by a service- connected right elbow disorder. 4. After instruction one, above, has been completed, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any prostate disorder. For any diagnosed prostate disorder that has been present at any time since January 10, 2014, the examiner must opine whether it is at least as likely as not incurred in or otherwise related to the Veteran’s active-duty service, including venereal disease reported in the May 2015 statement and September 2019 Board hearing testimony. LAURA E. COLLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Paul J. Bametzreider 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.