Citation Nr: 20022093 Decision Date: 03/30/20 Archive Date: 03/30/20 DOCKET NO. 19-34 583 DATE: March 30, 2020 ORDER As new and material evidence has not been received to reopen a claim for service connection for right patellofemoral syndrome; the claim is denied. As new and material evidence has not been received to reopen a claim for service connection for gastroesophageal reflux disease (GERD); the claim is denied. REMANDED Entitlement to an evaluation in excess of 20 percent for neurological residuals of excision of ganglion cyst, left wrist status post carpal tunnel syndrome, is remanded.   FINDINGS OF FACT A final March 2018 rating decision denied service connection for right patellofemoral syndrome and GERD; evidence received since that time does not raise a reasonable possibility of substantiating the claims. CONCLUSIONS OF LAW 1. New and material evidence has not been received to reopen the claim for entitlement to service connection for right patellofemoral syndrome. 38 U.S.C. § 5103, 5108, 7105; 38 C.F.R. § 3.156. 20.1103. 2. New and material evidence has not been received to reopen the claim for entitlement to service connection for GERD. 38 U.S.C. § 5103, 5108, 7105; 38 C.F.R. § 3.156. 20.1103. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1998 to October 1999. This case is on appeal from a September 2018 rating decision. 1. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for right patellofemoral syndrome. 2. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for GERD. As noted above, the Veteran is currently seeking to reopen service connection claims for right patellofemoral syndrome and GERD. A claim that has been denied in an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c). 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 defined as existing evidence not previously submitted to agency decision makers. 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 C.F.R. § 3.156(a). The evidence submitted to reopen a previously denied claim is presumed credible unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). By March 2000 and November 2009 rating decision, a claim of service connection for a right knee condition was denied. The Veteran was notified of each decision by letter, which was mailed to the then current mailing address of record. Thereafter, nothing further regarding the claim was received. No new evidence or notice of disagreement was received by VA within one year of the issuance of the either rating decision. As the Veteran did not appeal either decision, those rating decisions became final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. A March 2018 rating decision then denied the claim for service connection for right patellofemoral syndrome and GERD. The right knee claim was denied because there was no new evidence showing a nexus to service. The GERD claim was denied because the evidence did not show an event, disease, or injury during service, or that the condition was incurred in or caused by service. The Veteran did not appeal this denial. He filed a VA Form 21-0958, Notice of Disagreement (NOD), in September 2018, which was within one year of the March 2018 rating decision. However, he specified that he was appealing the September 2018 rating decision. The September 2018 rating decision denied a June 2018 claim, which cannot constitute an NOD. See 38 C.F.R. § 19.21. As such, the March 2018 rating decision became final. Evidence considered at the time of the March 2018 rating decision included the Veteran’s STRs, VA treatment records, private treatment records, the Veteran’s lay statements, and VA examinations dated February 2000, October 2009, and June 2017. The evidence submitted since the prior final denial include copies of STRs, Veteran’s lay statements and updated VA and private treatment records. This evidence is new as it was not of record at the time of the final March 2018 rating decision. The recent evidentiary submissions do not show that the right patellofemoral syndrome or GERD were incurred in service or caused by the Veteran’s military service. The additional lay statements and medical evidence are silent for an indication of a nexus to service. Thus, the new evidence is not material because, by itself or when considered with previous evidence of record, does not relate to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). This additional evidence was received during the appellate period. While additional evidence was submitted within one year of the March 2018 decision, it is not considered material because it does not provide any evidence that right patellofemoral syndrome or GERD were incurred in or caused by service. Hence, the claim did not remain pending under 38 C.F.R. § 3.156(b). The Veteran has also submitted copies of STRs. Although the Veteran submitted additional STRs, they are duplicates and were considered in the March 2018 rating decision. Given the lack of new and material evidence within one year of the March 2018 rating decision and that the STRs were previously considered in the previous denial, the provisions of 38 C.F.R. § 3.156 (b) and 38 C.F.R. § 3.156 (c) are not applicable. Accordingly, the Board finds that new and material evidence has not been received to reopen the Veteran’s claim of service connection for right patellofemoral syndrome and GERD; the appeal is denied. 38 U.S.C. § 5108; 38 C.F.R. § 3.156; Shade v. Shinseki, 24 Vet. App. 110 (2010). REASONS FOR REMAND Entitlement to an evaluation in excess of 20 percent for neurological residuals of excision of ganglion cyst, left wrist status post carpal tunnel syndrome, is remanded. The Veteran reported that her left wrist disability “gets worse with age” and that on a daily basis she experiences “a numb” or “severe peripheral nerve pain” in her left wrist. See for example, June 2018 statement and November 2019 substantive appeal. VA attempted to schedule a VA examination to determine the current severity of the Veteran’s left wrist disability. However, the record indicates that the Veteran reported she was unavailable for the examination because she was receiving treatment at a posttraumatic stress disorder facility. See July 2018 VA correspondence. Therefore, the Board is remanding the claim to afford the Veteran another opportunity to report for an examination. The Veteran is advised that it is her responsibility to report for all scheduled VA examinations and to cooperate in the development of her claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. § 3.655. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for any private (non-VA) providers or facilities who may have additional medical records. Make two requests for any authorized records, unless it is clear after the first request that a second request would be futile. 2. Obtain the Veteran’s outstanding VA treatment records, including records of all treatment obtained through VA’s Choice program and all records scanned into her electronic health record. 3. Schedule the Veteran for a VA examination to assess the severity of her left wrist disability. (a.) 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. (b.) In so doing, the examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement 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). (c.) The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement 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). Corey Bosely Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Williams 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.