Citation Nr: 21061980 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 16-35 326 DATE: October 6, 2021 ORDER The application to reopen the claim for service connection for a mental health condition is denied. REMANDED Entitlement to a rating in excess of 40 percent for recurrent dislocation of the left shoulder with degenerative changes is remanded. Entitlement to a compensable rating for status post right inguinal hernia is remanded. Entitlement to a compensable rating for residual surgical scar, status post right inguinal hernia repair is remanded. FINDINGS OF FACT 1. In an unappealed April 2011 rating decision, the Regional Office (RO) declined to reopen the claim for service connection for a mental health condition. 2. The evidence received since the April 2011 rating decision, by itself or in conjunction with previously considered evidence, does not relate to an unestablished fact necessary to substantiate the claim for service connection for a mental health condition. CONCLUSIONS OF LAW 1. The April 2011 rating decision denying service connection for a mental health condition is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. Since the April 2011 rating decision, new and material evidence has not been received. The claim of entitlement to service connection for a mental health disability is not 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 September 1980 to September 1984. On his July 2016 substantive appeal, the Veteran requested a Board hearing. A hearing was scheduled for March 10, 2021. The Veteran did not appear for the hearing and has not shown good cause. 1. The application to reopen the claim for service connection for a mental health condition In general, rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. Pursuant to 38 U.S.C. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. New evidence is defined as 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. See 38 C.F.R. § 3.156 (a). In determining whether evidence is new and material, the "credibility of the evidence is to be presumed." Justus v. Principi, 3 Vet. App. 510,513 (1992). In Shade v. Shinseki, 24 Vet. App. 110 (2010), the Court held that once new and material evidence has been presented as to an unestablished fact from a previously denied claim for service connection, the claimant will be entitled to the full benefits of the Secretary's duty to assist, including a medical nexus examination, if one is warranted; it does not require new and material evidence as to each previously unproven element of a claim. In January 2010, the RO denied service connection for paranoid schizophrenia because there was no evidence of the disability in service or within a year of service discharge, and no evidence showing that it was related to service or a service-connected disability. The Veteran did not appeal, and that decision became final. In April 2011, the RO issued a rating decision declining to reopen the claim of service connection for mental health condition due to a lack of evidence of in-service disease or injury. The Veteran did not appeal, and that decision became final. The Veteran filed an application to reopen in March 2012. At the time of the prior denial, the record contained the Veteran's service treatment records and medical records showing a current disability. Also of record was the Veteran's report of treatment while stationed in Wurzburg, Germany, as well as documentation of attempts to obtain said records. During the course of the appeal, the Veteran submitted further medical records showing a current disability. However, the records did not show any new evidence regarding an in-service disease or injury. Therefore, the claim is not reopened. REASONS FOR REMAND 1. Entitlement to a rating in excess of 40 percent for recurrent dislocation of the left shoulder with degenerative changes is remanded. 2. Entitlement to a compensable rating for status post right inguinal hernia is remanded. 3. Entitlement to a compensable rating for residual surgical scar, status post right inguinal hernia repair is remanded. In recent correspondence, the Veteran's representative asked that VA produce the qualifications of the examiners that performed the compensation and pension examinations. "Since the veteran is obligated to raise the issue in the first instance, the veteran must have the ability to secure from the VA the information necessary to raise the competency challenge. Once the request is made for information as to the competency of the examiner, the veteran has the right, absent unusual circumstances, to the curriculum vitae and other information about qualifications of a medical examiner. This is mandated by the VA's duty to assist." Francway v. Wilkie, 940 F.3d 1304, 1308 (Fed. Cir. 2019) (citing 38 U.S.C. § 5103A; Harris v. Shinseki, 704 F.3d 946, 948 (Fed. Cir. 2013). Accordingly, remand to obtain the requested information is warranted. Further, the examinations of record for the Veteran's recurrent dislocation of the left shoulder with degenerative changes do not comply with the requirements laid out in Correia v. McDonald, 28 Vet. App. 158, 168 (2016). The examinations do not contain passive range of motion measurements. The matters are REMANDED for the following actions: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected recurrent dislocation of the left shoulder with degenerative changes. 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. 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). 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). 2. Obtain and add to the claims file information to demonstrate the qualifications of the compensation and pension examiners that evaluated the Veteran for his left shoulder, hernia, and residual surgical scar in June 2013 and May 2016, as well as the clinician who performs the new shoulder examination (such as a curriculum vitae and other credentialing documents, which may be redacted as deemed warranted). 3. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal. If the benefits sought are not granted to the Veteran's satisfaction, send the Veteran and his attorney a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. L. Chu Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Creegan 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.