Citation Nr: 21000817 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 14-26 958 DATE: January 6, 2021 ORDER New and material evidence having been received, the application to reopen the claim of service connection for a right hip disorder is granted. New and material evidence having not been received, the application to reopen the claim of service connection for posttraumatic stress disorder (PTSD) is denied. Service connection for left upper extremity (LUE) carpal tunnel syndrome (CTS) is denied. Service connection for right upper extremity (RUE) CTS is denied. REMANDED A compensable rating for scars status/post bilateral orchiopexy. Service connection for a cardiovascular (CV) disorder. Service connection for a right ankle disorder. Service connection for a left ankle disorder. Service connection for a right knee disorder. Service connection for a left knee disorder. Service connection for a right hip disorder. FINDINGS OF FACT 1. The Veteran served on active duty from April to September 1991, June 1992 to April 1993, and August 1996 to October 1997; he has been 100 percent disabled since August 2020. 2. In September 1994, the Regional Office (RO) denied service connection for a right hip disorder; the Veteran did not appeal that decision and it became final. 3. The evidence received since the September 1994 rating decision raises a reasonable possibility of substantiating the claim for a right hip disorder as it establishes a possible connection to the newly service-connected lumbar strain. 4. Service connection for PTSD was denied by the RO in September 1994 and March 2014 rating decisions, by the Board in July 2016, and by the Veterans Claims Court in September 2017. 5. Evidence submitted since the final denial for PTSD is not new and material and does not raise a reasonable possibility of substantiating the claim. 6. Bilateral upper extremity CTS was not shown in service, is not causally or etiologically related to service, and was not caused by or permanently worsened in severity by a service-connected disability. CONCLUSIONS OF LAW 1. The September 1994 rating decision, which denied service connection for a right knee disorder, is final. 38 U.S.C. § 7105 (2012). 2. New and material evidence has been received to reopen the claim for service connection for a right hip disorder. 38 U.S.C. §§ 5103, 5103A, 5107 (2012); 38 C.F.R. § §§ 3.102, 3.156, 3.159 (2020). 3. The September 1994 and March 2014 rating decisions, which denied service connection for PTSD, are final. 38 U.S.C. § 7105 (2012). 4. New and material evidence has not been received to reopen the claim of service connection for PTSD. 38 U.S.C. §§ 5108, 7104 (2012); 38 C.F.R. §§ 3.104, 3.156, 3.309, 3.311, 20.302, 20.110 (2020). 5. LUE CTS is not proximately due to, aggravated by, or the result of a service-connected disability. 38 U.S.C. §§ 1110, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.310 (2020). 6. RUE CTS is not proximately due to, aggravated by, or the result of a service-connected disability. 38 U.S.C. §§ 1110, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.310 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The issues of an increased rating for scars and service connection for a CV disorder were denied by the Board in May 2018. The Veteran appealed to the Veterans Claims Court. In March 2020, the Court Clerk issued a Joint Motion for Remand (JMR) and returned the appeals to the Board for further appellate action. New and Material Evidence to Reopen Claims Prior unappealed rating decisions may not be reopened absent the submission of new and material evidence warranting revision of the previous decision. 38 U.S.C. § 5108; 38 C.F.R. § § 3.156. “New” evidence means evidence “not previously submitted to agency decisionmakers.” “Material” evidence means “evidence that, by itself or when considered with previous evidence of record, related to an unestablished fact necessary to substantiate the claim.” 38 C.F.R. § § 3.156(a). In order to be “new and material” evidence, the evidence must not be cumulative or redundant, and “must raise a reasonable possibility of substantiating the claim,” which has been found to be enabling, not preclusive. See Shade v. Shinseki, 24 Vet. App. 110 (2010). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1991). Right Hip In an unappealed September 1994 rating decision, the RO denied service connection for a right hip disorder as it was not shown in-service or related to a service-connected disability. Since that time, the Veteran has asserted that all of his musculoskeletal disorders are related to a now service-connected lumbar spine disability. Therefore, this evidence is new and material as it goes to an element lacking at the time of the prior denial, namely a service-connected disability to establish secondary service connection. Therefore, the application to reopen the claim is granted. PTSD Procedurally, the initial claim for PTSD was denied in a September 1994 due to the lack of an in-service incurrence. Specifically, the RO found that, even though the Veteran received mental health treatment during service, the evidence did not show a chronic psychiatric disorder incurred in or aggravated by service. No substantive appeal or additional evidence was submitted and the rating decision became final one year later. The Veteran again filed a claim for service connection for PTSD which was denied in November 2004 for the lack of new or material evidence. A notice of disagreement (NOD) was filed, and a statement of the case (SOC) was issued in August 2005 but he did not appeal and the rating decision became final. In October 2013, he filed a claim for service connection for PTSD and the claim was reopened but benefits denied in March 2014 due to a lack of a diagnosis of PTSD. He submitted a timely NOD and substantive appeal, and the appeal was certified to the Board. A July 2016 Board decision reopened the claim but denied it on the merits. The Veteran had submitted statements describing physical altercations, domestic violence, rescue missions in his scope as a medic, and a sexual assault during his time in service. The July 2016 Board decision found that while a diagnosis of PTSD was shown, there was not credible supporting that the claimed in-service stressor occurred. The July 2016 Board decision covered the evidence in detail and found that the Veteran had a history, noted by several examiners, of misremembering events and exaggeration. Nonetheless, all of his statements regarding in-service stressors were considered and addressed in the July 2016 Board decision. Thus, the Board ultimately found his record of in-service stressors not to be credible and service connection was denied. The Veteran appealed these findings to the Veterans Claim Court and the Board’s decision was affirmed in September 2017. Thus, evidence of record at that time included all of the Veteran’s statements outlining several in-service stressors and military sexual trauma (MST), his medical records showing diagnoses of PTSD, depression, anxiety, narcissistic personality disorder, alcohol abuse disorder, and others, and VA examination and opinion reports finding the Veteran’s testimony of stressors not to be credible, and otherwise finding no etiological relationship between any mental health diagnosis and service. Evidence received since that time has consisted largely of additional medical records, and more statements submitted by the Veteran describing his previously outlined in-service stressors. The submitted medical records, while outlining treatment for mental health disorders, did not contain any etiological opinions or statements which might relate these disorders to service. Additionally, while new statements have been submitted by the Veteran, there has been no newly-submitted corroborated evidence or details provided. Instead, he outlined his previously described stressors which were already found not to be credible by the Board and the Court. Thus, these statements add little probative value. As such, the evidence added to the record since the last final denials is new but not material as it does not present a reasonable possibility of substantiating the claim. Therefore, the claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is not reopened and the appeal is denied. Service Connection for Bilateral Upper Extremity CTS Turning to the relevant laws and regulations, service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may be granted on a secondary basis for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury under 38 C.F.R. § 3.310. Allen v. Brown, 7 Vet. App. 439 (1995). In order to establish service connection on a secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a link between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The Veteran has bilateral upper extremity CTS which he asserts is a result of active duty. Alternatively, he suggested it was secondary to a right shoulder injury. In this regard, he was diagnosed with bilateral CTS and underwent his first carpal tunnel release surgery in 2004. Thus, a current diagnosis has been shown and the first element of service connection is met. As to an in-service incurrence, the service treatment records (STRs) do not show complaints of, treatment for, or a diagnosis of CTS during service. Thus, the second element of direct service connection, an in-service incurrence has not been shown and the medical evidence does not support service connection on a direct basis. Rather, the Veteran’s main assertion is that CTS is related to right shoulder injury. Although he is 100 percent disabled, he is not service connection for a right shoulder disability. Rather, his service connected disabilities include cervical strain, right and left upper extremity radiculopathy, plantar fasciitis, lumbar strain, right and left lower extremity radiculopathy, tinnitus, gastroesophageal reflux disease, orchiopexy scars, and hearing loss. Therefore, while there is evidence of CTS the record does not show a service connected disability of a right shoulder injury. As such, the medical evidence does not support service connection on a secondary basis. All associated private and VA medical records have also been reviewed. While they contain treatment for bilateral CTS, there is no indication that any examiner or treatment provider has related his disorders to service, or any incident thereof. The Board has considered the Veteran’s lay statements that his disorders were caused by service. He is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. However, he is not competent to offer an opinion as to the etiologies of his current disorders due to the medical complexity of the matter involved. Such competent evidence has been provided by the service records, clinical evidence, and examinations obtained and associated with the claims file. Here, the Board attaches greater probative weight to the clinical findings than to his statements. In light of the above, the preponderance of the evidence is against the claims for service connection and there is no doubt to be otherwise resolved. As such, the appeals are denied. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND In accordance with the March 2020 JMR, a remand is needed for additional development for increased rating for residual scarring and for a CV disorder. Specifically, the Veteran did not appear for his scheduled scars examination. The Court found that he was not properly notified and should be rescheduled for this examination. Thus, remand is required. With regard to the claim of service connection for CV disease, the Veteran asserts it is due to PTSD. Even though the Court denied the claim for PTSD, it found that in-service depression was conceded by the Board and it should be considered whether is related to the current CV disorder. Therefore, an addendum opinion should be obtained. As to the claims for ankles, knees, and a right hip, the Veteran was recently granted service connection for a lumbar spine disorder. In June 2020 correspondence, he asserted that all of his musculoskeletal disorders, including his ankle, knee, and hip disorders, were likely due to his newly service-connected lumbar spine disorder. No etiology opinion has been obtained assessing secondary service connection or aggravation. Thus, remand is necessary. The matters are REMANDED for the following actions: 1. Identify and obtain any outstanding, pertinent, VA and private treatment records and associate them with the claims file. 2. Schedule the Veteran for a VA examination to assess the current status of his scars in accordance with the diagnostic criteria. All indicated studies should be completed. 3. Obtain an addendum medical opinion regarding the Veteran’s CV disorder. The claims file should be made available to, and reviewed by, the clinician. The clinician is asked to provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s CV disorder is related to, caused, or aggravated by, service, to include in-service depression. A thorough rationale is required for any opinion rendered. 4. Obtain a medical opinion regarding the etiology of the right hip, bilateral ankle, and bilateral knee disorders. The claims file should be made available to, and reviewed by, the clinician. For any disorder of the right hip, ankles, or knees identified, the examiner is asked to address the following: • it is at least as likely as not (50 percent probability or greater) that the Veteran’s current disorder(s) is related to active duty. • it is at least as likely as not (50 percent probability or greater) that the Veteran’s current disorder(s) was proximately due to, or aggravated beyond its natural progression by, his service-connected lumbar spine disability. The clinician is asked to address the right hip, ankles, and knees separately. A thorough rationale is required for any opinion rendered. 5. Examinations need not be scheduled unless deemed necessary by the clinicians. L. HOWELL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Yacoub, 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.