Citation Nr: 21001808 Decision Date: 01/11/21 Archive Date: 01/11/21 DOCKET NO. 17-20 756 DATE: January 11, 2021 ORDER New and material evidence having been received, a claim of entitlement to service connection for residuals left calf/leg wound (claimed as gunshot wound) is reopened. New and material evidence having been received, a claim of entitlement to service connection for scar/surgical scar of left leg wound (claimed as gunshot wound) is reopened. New and material evidence having been received, a claim of entitlement to service connection for left hip condition claimed as pain and numbness (also claimed as numbness and pain with arthritis in bilateral hips) is reopened; the appeal is granted to this extent only. New and material evidence having been received, a claim of entitlement to service connection for right hip condition claimed as pain and numbness (also claimed as numbness and pain with arthritis in bilateral hips) is reopened; the appeal is granted to this extent only. New and material evidence having been received, a claim of entitlement to service connection for right knee condition (claimed as bilateral knee pain) is reopened; the appeal is granted to this extent only. New and material evidence having been received, a claim of entitlement to service connection for left knee condition (claimed as bilateral knee pain) is reopened; the appeal is granted to this extent only. New and material evidence having been received, a claim of entitlement to service connection for posttraumatic stress disorder (PTSD) is reopened; the appeal is granted to this extent only. New and material evidence having been received, a claim of entitlement to service connection for skin rashes and scars due to skin condition as a result of exposure to herbicides is reopened; the appeal is granted to this extent only. Entitlement to service connection for residuals left calf/leg wound (claimed as gunshot wound) is granted. Entitlement to service connection for scar/surgical scar of leg wound (claimed as gunshot wound) is granted. REMANDED Entitlement to service connection for left hip condition claimed as pain and numbness (also claimed as numbness and pain with arthritis in bilateral hips) is remanded. Entitlement to service connection for right hip condition claimed as pain and numbness (also claimed as numbness and pain with arthritis in bilateral hips) is remanded. Entitlement to service connection for right knee condition (claimed as bilateral knee pain) is remanded. Entitlement to service connection for left knee condition (claimed as bilateral knee pain) is remanded. Entitlement to service connection for an acquired psychiatric disorder (claimed as PTSD) is remanded. Entitlement to service connection for skin rashes and scars due to skin condition as a result of exposure to herbicides is remanded. FINDINGS OF FACT 1. An unappealed June 2011 rating decision denied entitlement to service connection for residuals left calf/leg wound, scar/surgical scar of leg wound, left hip condition claimed as pain and numbness, right hip condition claimed as pain and numbness, right knee condition, left knee condition, posttraumatic stress disorder, and skin rashes and scars due to skin condition. 2. The Veteran did not initiate an appeal of the RO’s June 2011 decision within one year; nor was new and material evidence received within a year. 3. Evidence received since the June 2011 rating decision is new and material in that it is not cumulative, was not previously considered by decision makers, and raises a reasonable possibility of substantiating the claims. 4. Left calf/leg wound and scar/surgical scar of the leg wound are etiologically related to an in-service gunshot wound. CONCLUSIONS OF LAW 1. The June 2011 rating decision is final. 38 U.S.C. §§ 5109A, 7105; 38 C.F.R. §§ 3.105 (a), 3.156, 20.1103. 2. The evidence received since the June 2011 rating decision is new and material, and the Veteran’s claims for service connection are reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156 (a). 3. The criteria for service connection for residuals left calf/leg wound (claimed as gunshot wound) are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for scar/surgical scar of leg wound (claimed as gunshot wound) are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty during the Vietnam Era from September 1963 to August 1966. These matters are before the Board of Veterans’ Appeals (Board) on appeal of an April 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office in Baltimore, Maryland (RO). The Veteran’s claims were denied in a June 2011 rating decision. In June 2012, the Veteran requested reconsideration of the decision and indicated that new and material evidence would be submitted. However, no additional evidence was received. Therefore, the June 2011 rating decision is final. In August 2012 the Veteran again notified VA that additional evidence would be submitted to support his claim. See August 2012 VCAA acknowledgement. The April 2013 rating decision found that new and material evidence had not been received to reopen the claims of entitlement to service connection for residuals left calf/leg wound, scar/surgical scar of leg wound, left hip condition claimed as pain and numbness, right hip condition claimed as pain and numbness, right knee condition, left knee condition, posttraumatic stress disorder, and skin rashes and scars due to skin condition. A notice of disagreement was received in March 2014, a statement of the case was issued in February 2017, and a substantive appeal was received in April 2017. The Veteran was afforded a hearing before the undersigned Veterans Law Judge in July 2020. A transcript of the hearing has been associated with the Veteran’s electronic claims file. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). New and Material Evidence In general, RO rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108; Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). 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 substantiating the claim. 38 C.F.R. § 3.156(a). VA must review all of the evidence submitted since the last final rating decision in order to determine whether the claim may be reopened. See Hickson v. West, 12 Vet. App. 247, 251 (1999). The credibility of the evidence is presumed for the purpose of reopening, unless it is inherently false or untrue or, if it is in the nature of a statement or other assertion, it is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 216 (1995); Justus v. Principi, 3 Vet. App. 510 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. With respect to the issue of materiality, the newly presented evidence need not be probative of all the elements required to award the service connection claim. In Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998), the Federal Circuit noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a Veteran's injury or disability, even where it would not be enough to convince the Board to grant a claim. A. Residuals left calf/leg wound and scar/surgical scar of leg wound (claimed as gunshot wound) The Veteran has claimed entitlement to service connection for residuals of a gunshot wound sustained during active duty military service, and the resulting scar. The June 2011 rating decision found that there was no medical evidence of an in-service gunshot wound. Evidence submitted since the June 2011 rating decision includes statements received in May 2018 from several veterans who served in the Veteran’s unit at the time of the asserted injury and a May 2017 statement (received May 2018) from the Veteran’s private dermatologist. A July 2020 Board hearing transcript has also been associated with the record. The lay statements from the veterans who served alongside the Veteran provide details in support of the Veteran’s account of the incident in which he was wounded. The statement from the Veteran’s dermatologist provides a description of the entrance and exit wound and resulting scar. The dermatologist’s statement further explains that a scar on the Veteran’s thigh, which was noted on the Veteran’s enlistment examination, is not the same scar from the gunshot wound which was noted on the Veteran’s separation examination. At the July 2020 Board hearing, the Veteran provided additional details about the circumstances of and treatment for his in-service gunshot wound. The Veteran also noted that the separation examination did not specify the location of his reported gunshot wound and asserted that the RO mistakenly determined that the wound was the same one noted at enlistment. The basis of the June 2011 denial was that the condition neither occurred in nor was caused by service. The lay statements, statement from the Veteran’s private dermatologist, and the Veteran’s Board hearing testimony are new in that they were not of record at the time of the June 2011 denial. The evidence is material in that it demonstrates that the Veteran sustained a gunshot wound in service, the lack of which was a basis of the prior denial. Therefore, new and material evidence has been received and the claim of entitlement to service connection for a left calf/leg wound is reopened. The Board will address the merits of the claim below. B. Left hip condition and right hip condition claimed as pain and numbness (also claimed as numbness and pain with arthritis in bilateral hips; left knee condition and right knee condition (claimed as bilateral knee pain) The June 2011 rating decision found that there was no evidence that the Veteran’s claimed hip and knee conditions began in service and no evidence that the Veteran has currently diagnosed hip or knee conditions. Evidence submitted since the June 2011 rating decision includes the July 2020 Board hearing testimony, in which the Veteran testified to experiencing pain in his hips and knees after jumping from planes to deliver supplies into combat zones during military service. The Veteran testified to continuous and increasing pain since service resulting in instability, altered gait, limited range of motion, and falling on several occasions. The Veteran testified to being prescribed pain medication. As the Veteran’s testimony pertains directly to a basis for the prior denial of his claim, the Board finds that new and material evidence has been submitted. Therefore, the claim of entitlement to service connection for a left hip condition and right hip condition claimed as pain and numbness (also claimed as numbness and pain with arthritis in bilateral hips; and a left knee condition and right knee condition (claimed as bilateral knee pain) is reopened. To this extent, the claim is granted. The Board will remand these claims for further development on their merits below. C. An acquired psychiatric disorder (claimed as PTSD) The Veteran originally claimed entitlement to service connection for PTSD. The June 2011 rating decision found that the Veteran did not have a current diagnosis of PTSD. Evidence submitted since the June 2011 rating decision includes a statement from the Veteran’s spouse and VA treatment records. In a March 2018 statement, the Veteran’s spouse provided details of the Veteran’s behavior since his military service. A June 2016 VA treatment record shows that the Veteran underwent a mental health assessment and notes a diagnosis of unspecified trauma and stressor-related disorder, characterized as subthreshold PTSD. A September 2018 VA treatment record notes a history of depression and prescribed medication for nightmares. At the July 2020 Board hearing, the Veteran provided additional details about his in-service stressors; the Veteran and his spouse provided testimony about the Veteran’s symptoms since service. The Board finds that the statements and testimony of the Veteran and his spouse and the VA treatment records showing diagnoses of depression and subthreshold PTSD are new and material evidence as it pertains directly to a basis for the prior denial of his claim. Therefore, new and material evidence having been received, the claim of entitlement to service connection for PTSD is reopened. To this extent, the claim is granted. The Board will remand these claims for further development on their merits below. D. Skin rashes and scars due to skin condition as a result of exposure to herbicides The June 2011 rating decision denied entitlement to service connection for a skin condition as the condition may not be presumptively service connected due to herbicide exposure. The RO also found that there is no evidence that the condition began in service or that the Veteran has a currently diagnosed skin condition. At the July 2020 Board hearing, the Veteran testified to having developed skin rashes from the calf down since discharge, which has resulted in scarring. The Veteran also testified to having been treated by a private dermatologist, Dr. C.S., for the condition. As the Veteran’s testimony pertains directly to a basis for the prior denial of his claim, the Board finds that new and material evidence has been submitted. Therefore, the claim of entitlement to service connection for skin rashes and scars due to a skin condition as a result of exposure to herbicides is reopened. To this extent, the claim is granted. The Board will remand this claim for further development on their merits below. Service Connection E. Entitlement to service connection for residuals left calf/leg wound (claimed as gunshot wound) F. Entitlement to service connection for scar/surgical scar of leg wound (claimed as gunshot wound) In general, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. Service connection generally requires credible and competent evidence showing: (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 or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); 38 C.F.R. § 3.303. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To do so, the Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. See Masors v. Derwinski, 2 Vet. App. 181 (1992). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). The Board finds the Veteran’s assertions that he sustained a gunshot wound to his left calf in service credible. In addition to the evidence summarized above, VA treatment records show complaints of a burning sensation at the site of the wound. See September 2018 VA treatment records. The Veteran asserts that he experiences numbness and pain in his left leg, which has resulted in an altered gait, difficulty walking, and multiple falls. See July 2020 Hearing Transcript. Related to the entrance and exit wounds of the Veteran’s gunshot, the Veteran’s private dermatologist identified scars measuring 2.5 cm x 2 cm and 4 cm x 2 cm. See May 2017 Letter from Dr. C.S. A January 2010 private EMG report indicates a history of chronic numbness in the left lower leg. As such, the Board finds that service connection for residuals left calf/leg wound and scar/surgical scar of leg wound is warranted. REASONS FOR REMAND The Veteran has not been afforded a VA examination on the issues of entitlement to service connection for left knee condition, right knee condition, left hip condition, right hip condition, acquired psychiatric disability, and skin condition. These claims must be remanded so that a VA examiner can opine on whether it is at least as likely as not that any such disabilities are a manifestation of or etiologically related to his military service. Regarding the claims for hip condition and knee condition, the Veteran asserts that he began to feel pain in service due to jumping out of planes, and that this pain has persisted since service and resulted in instability, altered gait, limited range of motion, and falls. As noted below, the Veteran has stated that he received treatment for these conditions prior to 1999 at the Baltimore VA Medical Center. The Veteran’s private treatment records show complaints of radiating left hip pain, when performing left leg raises, and right hip pain. See Private Treatment Records associated with the record in December 2010. The Veteran’s MOS is parachute rigger, and his personnel records indicate that the Veteran’s unit furnished supplies by air drop. A VA examination is warranted to identify whether the Veteran has any hip and knee condition that is etiologically related to his reports of jumping from planes during active military service. The United States Court of Appeals for the Federal Circuit has explained that a disability for VA compensation purposes exists where pain causes functional impairment, even if there is no diagnosis connecting the pain with a current underlying condition. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). The Veteran asserts that pain from his claimed hip condition has caused instability, altered gait, limited range of motion, and falling. In the absence of any diagnosed conditions, the VA examiner(s) should opine as to whether any hip pain results in functional impairment. Regarding the Veteran’s claimed acquired psychiatric disability, the Veteran reports participating in daily missions over a period of six months during which he was constantly under fire, was shot in the leg, and witnessed injury to members of his unit. The Veteran and his spouse report symptoms including nightmares requiring sleep aids, avoidance of people, anxiety, substance abuse, and mood swings since military service. See July 2020 Hearing Transcript. The evidentiary record also indicates treatment for substance abuse from 1987 to 1989, to include multiple hospitalizations of up to one month. See May 2011 VA examination. The Veteran was last afforded a VA examination in May 2011. The examiner noted symptoms of sleep disturbance, hypervigilance, and concentration issues, but opined that the Veteran did not meet the diagnostic criteria for PTSD. Subsequent VA treatment records show a diagnosis of subthreshold PTSD and note a history of depression. See July 2016 and September 2018 VA treatment records. The Veteran has been prescribed medication for nightmares. See September 2018 VA treatment records. A VA examination is warranted to identify whether any currently diagnosed acquired psychiatric disorder is etiologically related to active military service. Regarding his claims for a skin condition and a knee condition, the Veteran has identified relevant treatment records from private dermatologist Dr. C.S. and VA treatment records from the Baltimore VA Medical Center prior to 1999. These records have not been associated with the record. The evidentiary record also indicates that the Veteran was treated for substance abuse at the Baltimore VA Medical Center in 1988, and received private treatment at Sheppard Pratt, Maryland General Hospital, and a facility identified as Poconos. See May 2011 VA examination. In addition, the most recent VA treatment records are dated in September 2018. Copies of any outstanding VA and private medical records should be obtained and associated with the claims file. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for any relevant private treatment records for his skin condition, hip condition, knee condition, and acquired psychiatric disability, to include records from private dermatologist Dr. C.S. and substance abuse treatment records from Sheppard Pratt, Maryland General Hospital, and Poconos. 2. Obtain all outstanding VA treatment records, to include records from the Baltimore VA Medical Center prior to 1999 and VA treatment records after September 2018, and associate them with the claims file. 3. Once the development above has been completed, schedule the Veteran for a VA examination to determine the nature and etiology of the claimed bilateral hip and knee disabilities. The claims file must be provided to and reviewed by the examiner. Any indicated tests and studies must be performed. The examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that any bilateral hip and knee disability (or if no such disability is identified, any hip and knee pain that causes any functional impairment) is etiologically related to the Veteran’s military service, to include his MOS as a parachute rigger during which time he participated in missions to air drop supplies. The Veteran contends that the cumulative effect of his activities during these missions caused his bilateral hip and knee disability. The examiner should indicate whether any pathology/disease process associated with the Veteran’s hips and knees are consistent with the mechanism of injury claimed by the Veteran. A complete rationale for all opinions expressed must be provided. 4. Schedule the Veteran for a VA examination to determine the nature and etiology of his claimed acquired psychiatric disability. The Veteran’s file should be made available for review by the examiner. The claims file must be provided to and reviewed by the examiner. Any indicated studies should be performed. The examiner should identify any and all acquired psychiatric disorders diagnosed proximate to, or during the pendency of, this appeal. For each psychiatric disability identified, the examiner should opine whether it is at least as likely as not (a 50 percent probability or greater) that the diagnosed disability arose during or is otherwise etiologically related to service. A complete rationale for all opinions expressed must be provided. 5. Schedule the Veteran for a VA examination to determine the nature and etiology of his claimed skin rashes and scars due to a skin condition as a result of exposure to herbicides. The claims file must be provided to and reviewed by the examiner. Any indicated tests and studies must be performed. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any skin rashes and scars due to a skin condition had its onset during service, or is otherwise related to any event or injury during the Veteran’s service, to include as a result of exposure to herbicides. A complete rationale for all opinions expressed must be provided. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Bynum, 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.