Citation Nr: 21064316 Decision Date: 10/19/21 Archive Date: 10/19/21 DOCKET NO. 05-07 659 DATE: October 19, 2021 ORDER New and material evidence having not been submitted, the claim for entitlement to service connection for an acquired psychiatric disorder is not reopened. Entitlement to service connection for right shoulder disorder is granted. REMANDED Entitlement to an initial compensable rating of 10 percent for limitation of extension of left hip is remanded. Entitlement to an initial compensable rating for limitation of flexion of the left hip is remanded. Entitlement to an initial rating in excess of 30 percent for right knee disability prior to July 7, 2003 is remanded. Entitlement to total disability due to individual unemployability prior to December 5, 2011 is remanded. FINDINGS OF FACT 1. In a final decision issued in August 2004, the Regional Office denied service connection for an acquired psychiatric disorder. 2. Evidence added to the record since the final August 2004 denial is either cumulative or redundant of evidence previously considered, does not relate to an unestablished fact necessary to substantiate the claim, and does not raise a reasonable possibility of substantiating the claim of service connection for a psychiatric disorder. 3. Resolving reasonable doubt in the Veteran's favor, his right shoulder disability is at least as likely as not related to military service. CONCLUSIONS OF LAW 1. The August 2004 rating decision that denied the claim for entitlement to service connection for an acquired psychiatric disorder is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. The additional evidence received since the August 2004 rating decision is not considered new and material; the claim for entitlement to service connection for an acquired psychiatric disorder is not reopened. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156(a). 3. The criteria for entitlement to service connection for right shoulder disability have been met. 38C.F.R. §§3.102, 3.159, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1979 to July 1982. These matters come before the Board following an October 2019 Joint Motion for Remand (JMR) from the Court of Appeals for Veteran's Claims (CAVC). Following the October 2019 JMR, the Veteran's claims were remanded for further development in a May 2020 Board decision. Upon review, the Board finds that the remand directives have been complied with as it relates to the Veteran's claims for entitlement to service connection for an acquired psychiatric disorder to include schizophrenia and entitlement to service connection for a right shoulder disability. Stegall v. West, 11 Vet. App. 268 (1998). The Veteran's claims for entitlement to an initial compensable rating of 10 percent for limitation of extension of left hip; entitlement to an initial compensable rating for limitation of flexion of the left hip; entitlement to an initial rating in excess of 30 percent for right knee disability prior to July 7, 2003 and entitlement to total disability due to individual unemployability prior to December 5, 2011 are addressed in the remand section below. The Board notes that the AOJ requested the Veteran submit any relevant private treatment records or submit information with which VA can assist the Veteran in obtaining private treatment records. The Veteran did not respond to the request nor submit the private treatment records requested. The duty to assist is not a one-way street. If a Veteran desires help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining evidence. Wood v. Derwinski, 1 Vet. App. 190 (1991). Thus, the Board finds that VA has satisfied the duty to assist. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Reopening 1. New and material evidence having not been submitted, a claim of entitlement to service connection for an acquired psychiatric disorder. Generally, a claim which has been denied in an unappealed Board decision or an unappealed RO decision may not thereafter be reopened and allowed. 38U.S.C. §§7104(b), 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 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). The Court has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court further held that new evidence would 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. Id. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Veteran's claim for a psychiatric disorder, claimed as a nervous disorder, was initially denied by the RO in January 1986 on the basis the evidence failed to show in-service psychiatric treatment or evidence of psychosis within one year of separation from service. The RO did acknowledge the Veteran's psychiatric treatment in 1985, which was diagnosed as an acute psychotic episode. The RO again denied the claim in a February 1999 rating decision, noting that new and material evidence had not been submitted. The Veteran filed a petition to reopen this claim for service connection in July 2003, claimed as schizophrenia. An August 2004 rating decision continued the previous denial of this claim on the basis that the evidence does not show a psychiatric disorder was incurred in or caused by the Veteran's service. As the Veteran did not file either notice of disagreement within one year of the issuance of this rating decision or submit new and material evidence within one year, the August 2004 rating decision is final. 38 U.S.C. § 7105(c); 38C.F.R. §§3.104, 20.302, 20.1103. In this regard, the Board has considered the applicability of 38 C.F.R. § 3.156(b), which provides that, when new and material evidence is received prior to the expiration of the appeal period, it will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. However, in the instant case, such regulation is inapplicable as no evidence pertaining to the Veteran's claim for service connection was received prior to the expiration of the appeal period stemming from the prior rating decisions, including the August 2004 rating decision. See also Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011). In denying the claim in the August 2004 rating decision, the RO considered the Veteran's service treatment records, VA treatment records, and lay statements submitted by the Veteran that all failed to establish the Veteran suffers from a psychiatric disability that is attributable to his military service. In April 2009, the Veteran filed another petition to reopen this claim, now claimed as schizophrenia and bipolar disorder, and the July 2010 rating decision continued the denial of the claim for service connection for a psychiatric disorder. The Veteran filed a request to reopen that same month and the claim was readjudicated in August 2011 which led to the appeal considered herein. Evidence submitted since the last final denial includes VA treatment records, Social Security Administration (SSA) records, and additional statements from the Veteran submitted in support of his claim. Additional military personnel records have also been added to the file. This additional evidence does not show any treatment for a psychiatric disorder in service, or a nexus between a psychiatric disorder and military service. As such, this evidence is not material and does not substantiate reopening the Veteran's claim. The evidence added to the record since the last final AOJ adjudication is either cumulative or not relevant to the claim. Therefore, new and material evidence has not been submitted, the claim is not reopened, and the appeal as to this issue is denied. 2. Entitlement to service connection for right shoulder disorder to include as secondary to the service-connected right knee disability. The Veteran is seeking entitlement to service connection for a right shoulder disorder that he alleges is either due directly to his military service or alternatively, secondary to his service-connected right knee disability. Specifically, he argues that the right knee disability requires the use of a cane for ambulation, which has resulted in a right shoulder disorder. In order to establish entitlement to service connection for a disability, a veteran must show: (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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established for a chronic disease as enumerated for VA compensation purposes, to include arthritis, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection for an enumerated "chronic disease" listed under 38 C.F.R. § 3.309(a) can also be also be established on a presumptive basis by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1110, 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). That is, under 38C.F.R. §3.303(b), with an enumerated "chronic disease" such as arthritis is shown in service (or within the presumptive period under §3.307), subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. See also Groves v. Peake, 524 F.3d 1306, 1309 (2008). This rule does not mean that any manifestation of joint pain in service will permit service connection of arthritis first shown as a clear-cut clinical entity, at some later date. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity of symptomatology. 38C.F.R. §3.303(b). In order to establish entitlement to service connection on a secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) probative evidence establishing a nexus (i.e., link) between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). The Board finds that the evidence is in relative equipoise with respect to the Veteran's right shoulder disability on a direct service connection basis. February 2008 VA treatment records establish that the Veteran has a current diagnosis of arthritis of the right shoulder confirmed by x-ray findings. Further, the Veteran's service treatment records note the Veteran's complaint of right shoulder pain in December 1981 after lifting a lawn mower. Ultimately, while the adequate VA examinations of record consistently note that the Veteran's right shoulder disorder is not secondary to his service-connected right knee disorder, the evidence is in relative equipoise with respect to whether the Veteran's right shoulder disability is a direct result of military service. The January 2009 VA examination opines that the Veteran's disability is not related to military service. Conversely, the December 2020 VA examiner opined that the Veteran's right shoulder disability is more likely due to age and his previous shoulder injury in service. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, resolving reasonable doubt in favor of the Veteran, entitlement to service connection for right shoulder disability is granted. REASONS FOR REMAND 1. Entitlement to an initial compensable rating of 10 percent for limitation of extension of left hip is remanded. 2. Entitlement to an initial compensable rating for limitation of flexion of the left hip is remanded. The Veteran's left hip disability claims must be remanded for a new VA examination. The examiner did not substantially comply with the Board's May 2020 remand directives which instructed the examiner to specify the degree of range of motion at which the Veteran's left hip pain began. As such remand is warranted for a new VA examination. 3. Entitlement to an initial rating in excess of 30 percent for right knee disability prior to July 7, 2003 is remanded. The Veteran's claim for entitlement to a rating in excess of 30 percent for right knee disability prior to July 7, 2003 must be remanded for an addendum opinion. The VA examination did not comply with the May 2020 remand directives which asked the examiner to opine, based on the evidence of record, as to the level of severity of the Veteran's right knee disability prior to July 7, 2003. 4. Entitlement to total disability due to individual unemployability prior to December 5, 2011 is remanded. Remand is required because entitlement to TDIU is inextricably interwined with the pending increased evaluation claims. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that issues are inextricably intertwined and must be considered together when a decision concerning one could have a significant impact on the other). The matters are REMANDED for the following action: 1. Obtain all outstanding VA treatment records. 2. After all outstanding records have been obtained, afford the Veteran an appropriate in-person VA examination to determine the current severity of his left hip disability and limitation of flexion of the left hip. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. Testing for pain on both active and passive motion and in weight-bearing and non-weight-bearing should be conducted. Please indicate the point, in terms of degrees, at which pain began during range of motion testing and whether pain resulted in additional functional loss. The extent of any weakened movement, excess fatigability, and incoordination on use should also be described by the examiner. The examiner should assess the additional functional impairment due to weakened movement, excess fatigability, or incoordination in terms of the degree of additional range of motion loss. The examiner is reminded that he or she should specify the degree of additional functional loss/motion due to pain, to include during flare-ups and after repetitive use over time, or state why it was not feasible to provide such information, as required for an adequate examination. 3. Obtain an addendum opinion from an appropriate clinician identifying the manifestations and degree of impairment (including functional impairment) of the Veteran's right knee disability for the period on appeal prior to July 7, 2003. The examiner is asked to opine whether it is at least as likely as not that: (a) extension was limited, to include functionally, to 30 degrees, and/or (b) there was other impairment of the knee to include recurrent subluxation or lateral instability and if so whether it was slight, moderate, or severe. Jennifer White Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Wimbish, 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.