Citation Nr: 21065026 Decision Date: 10/22/21 Archive Date: 10/22/21 DOCKET NO. 16-41 086 DATE: October 22, 2021 ORDER New and material evidence having been received, the petition to reopen the claim of service connection for a left ankle disability is granted. New and material evidence having been received, the petition to reopen the claim of service connection for a left knee disability is granted. New and material evidence having been received, the petition to reopen the claim of service connection for a left shoulder disability is granted. New and material evidence having been received, the petition to reopen the claim of service connection for right ear pain is granted. New and material evidence having been received, the petition to reopen the claim of service connection for chronic jaw pain is granted. REMANDED Entitlement to service connection for a left ankle disability is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a left shoulder disability is remanded. Entitlement to service connection for an ear disability, manifesting as both pain and hearing loss, is remanded. Entitlement to service connection for a disability described as chronic jaw pain is remanded. Entitlement to service connection for a left lower extremity disability (claimed as tibia and fibula impairment) is remanded. Entitlement to service connection for a right lower extremity disability (claimed as tibia and fibula impairment) is remanded. FINDINGS OF FACT 1. A March 2009 rating decision denied service connection for left ankle, left knee, and left shoulder disabilities, right ear pain, and right-side chronic jaw pain; the Veteran did not appeal these denials, and no new and material evidence was received within one year of notice of the decision. 2. Since the March 2009 denial, new and material evidence related to the issues of service connection for left ankle, left knee, and left shoulder disabilities, right ear pain, and right-side chronic jaw pain has been received. CONCLUSIONS OF LAW 1. The March 2009 denials of service connection for left ankle, left knee, and left shoulder disabilities, right ear pain, and right-side chronic jaw pain became final. 38 U.S.C. § 7105; 38 C.F.R. § 3.104. 2. New and material evidence has been received to reopen the previously denied claims of service connection for left ankle, left knee, and left shoulder disabilities, right ear pain, and right-side chronic jaw pain. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from August 1982 to June 1984. This matter comes before the Board of Veterans' Appeals (Board) from a May 2012 rating decision. The Veteran testified at a Board hearing in July 2021. The record shows that the Veteran appointed an attorney as his representative. 05/06/2016, Power of Attorney. Nevertheless, shortly before the Veteran's appeal was certified to the Board, the Veteran's attorney sent VA a copy of a letter addressed to the Veteran, where the attorney informed the Veteran of his intention to withdraw representation. 09/13/2016, Third Party Correspondence; see also 10/19/2016, Third Party Correspondence. Since then, the Veteran has not appointed a new representative. Additionally, at his July 2021 Board hearing, he agreed to proceed without a representative. 07/01/2021, Hearing Transcript, at 2. Therefore, the Board is deemed to be representing himself before the Board. 1. The claim of service connection for a left ankle disability is reopened. The Veteran seeks service connection for a left ankle disability. 08/16/2011, VA 21-4138 Statement in Support of Claim. The record shows that a March 2009 rating decision denied service connection for left ankle sprain. The AOJ determined that although there is record of treatment in service for a left ankle sprain, no permanent residual or chronic disability subject to service connection was shown by the service treatment records or demonstrated by evidence following service. The Veteran did not appeal that decision, and VA did not receive new and material evidence within one year of notice of the decision. Therefore, the March 2009 denial of service connection became final. Where a claim has been finally adjudicated, a claimant must present new and material evidence to reopen the previously denied claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); see also Wakeford v. Brown, 8 Vet. App. 239 -40 (1995). Since the March 2009 denial, VA has received new and material evidence to reopen the claim. Significantly, the Veteran has submitted testimony and private medical records that suggest the existence of a current left ankle disability. 07/01/2021, Heating Transcript; 07/06/2016, Medical Treatment Record - Non-Government Facility. This new evidence relates to an unestablished element of the previously denied claim and raises a reasonable possibility of substantiating the claim as it potentially establishes a connection between a current condition and an event in service. Therefore, this matter is reopened. 2. The claim of service connection for a left knee disability is reopened. The Veteran seeks service connection for a left knee disability. 08/16/2011, VA 21-4138 Statement in Support of Claim. The record shows that a March 2009 rating decision denied service connection for left chronic knee condition. The AOJ determined that there was no evidence that the claimed condition existed. The Veteran did not appeal that decision, and VA did not receive new and material evidence within one year of notice of the decision. Therefore, the March 2009 denial of service connection became final. Since the March 2009 denial, VA has received new and material evidence to reopen the claim. Significantly, the Veteran has submitted testimony that suggests the existence of a current left knee disability. Specifically, he testified that he underwent bilateral total knee replacement in recent years. He also testified that he developed and has had left knee symptoms since service. This new evidence relates to unestablished elements of the previously denied claim and raises a reasonable possibility of substantiating the claim as it potentially establishes a connection between a current condition and an event in service. Therefore, this matter is reopened. 3. The claim of service connection for a left shoulder disability is reopened. The Veteran seeks service connection for a left shoulder disability. 08/16/2011, VA 21-4138 Statement in Support of Claim. The record shows that a March 2009 rating decision denied service connection for left shoulder pain. The AOJ determined that although there is record of treatment in service for the left shoulder, no permanent residual or chronic disability subject to service connection was shown by the service treatment records or demonstrated by evidence following service. The Veteran did not appeal that decision, and VA did not receive new and material evidence within one year of notice of the decision. Therefore, the March 2009 denial of service connection became final. Since the March 2009 denial, VA has received new and material evidence to reopen the claim. Significantly, the Veteran has submitted testimony that suggests the existence of a current left shoulder disability. The Veteran has also suggested that his left shoulder disability could be related to having to carry heavy loads during service. This new evidence relates to unestablished elements of the previously denied claim and raises a reasonable possibility of substantiating the claim as it potentially establishes a connection between a current condition and an event in service. Therefore, this matter is reopened. 4. The claim of service connection for right ear pain is reopened. The Veteran seeks service connection for a disability described as right ear pain. 08/16/2011, VA 21-4138 Statement in Support of Claim. The record shows that a March 2009 rating decision denied service connection for right ear pain. The AOJ determined that although there is record of treatment in service for right ear pain, no permanent residual or chronic disability subject to service connection was shown by the service treatment records or demonstrated by evidence following service. The Veteran did not appeal that decision, and VA did not receive new and material evidence within one year of notice of the decision. Therefore, the March 2009 denial of service connection became final. Since the March 2009 denial, VA has received new and material evidence to reopen the claim. Significantly, the Veteran has submitted testimony that suggests the existence of a current ear disability. Specifically, he has reported a dull, throbbing pain into his ear, adding that he has sought treatment from a family doctor (who has been unable to offer a diagnosis) but not from an ear specialist. The Veteran has also suggested that his left shoulder disability could be related to having to carry heavy loads during service. This new evidence relates to unestablished elements of the previously denied claim and raises a reasonable possibility of substantiating the claim as it potentially establishes a connection between a current condition and an event in service. Therefore, this matter is reopened. 5. The claim of service connection for chronic jaw pain is reopened. The Veteran seeks service connection for a disability described as chronic jaw pain. 08/16/2011, VA 21-4138 Statement in Support of Claim. The record shows that a March 2009 rating decision denied service connection for right side chronic jaw pain. The AOJ determined that although there is record of treatment in service for the Veteran having trouble closing his mouth, no permanent residual or chronic disability subject to service connection was shown by the service treatment records or demonstrated by evidence following service. The Veteran did not appeal that decision, and VA did not receive new and material evidence within one year of notice of the decision. Therefore, the March 2009 denial of service connection became final. Since the March 2009 denial, VA has received new and material evidence to reopen the claim. Significantly, the Veteran has submitted testimony that suggests the existence of a chronic jaw pain. Specifically, he has indicated that his jaw pain and his ear pain appear to be related, adding that he has sought treatment for these symptoms from a family doctor (who has been unable to offer a diagnosis) but not from a specialist. This new evidence relates to unestablished elements of the previously denied claim and raises a reasonable possibility of substantiating the claim as it potentially establishes a connection between a current condition and an event in service. Therefore, this matter is reopened. REASONS FOR REMAND 1. Entitlement to service connection for a left ankle disability is remanded. Service treatment records show treatment for a left ankle injury. 02/11/2012, STR-Medical, at 3, 8 & 32-33. The Veteran has testified that his left ankle got progressively worse after service and has submitted medical records that suggest the existence of a current left ankle disability. 07/01/2021, Heating Transcript, at 6; 07/06/2016, Medical Treatment Record - Non-Government Facility. Based on this evidence, the Board finds that a VA examination is warranted. 2. Entitlement to service connection for a left knee disability is remanded. The Veteran has testified that he underwent bilateral knee replacements within the last two years. 07/01/2021, Heating Transcript, at 3. He reported that he injured his right knee during basic training. Id. at 2. The Veteran's May 1984 separation examination indicates that he had a right knee scar from trauma. 02/11/2012, STR-Medical, at 20. The Veteran asserts that his claimed left knee disability is secondary to his right knee disability. More specifically, he believes that his left knee disability is the result of overcompensating for his right knee disability. 07/01/2021, Heating Transcript, at 2. Based on this evidence, the Board finds that a VA examination is warranted. 3. Entitlement to service connection for a left shoulder disability is remanded. Service treatment records show complaints of left shoulder pain. 02/11/2012, STR-Medical, at 30-31. The Veteran has testified that he currently experiences numbness and tingling from his shoulder all the way to his hand. 07/01/2021, Heating Transcript, at 14. He believes that his current shoulder disability is related to the stress of having to carry heavy loads (to include duffel bags) during service. The Veteran's DD-214 indicates that his military occupational specialty (MOS) was aircraft powertrain repairer. The Veteran's report of having had to carry heavy loads during service is consistent with this MOS. Based on this evidence, the Board finds that a VA examination is warranted. 4. Entitlement to service connection for an ear disability, manifesting as both pain and hearing loss, is remanded. The Veteran's claim indicates that he is seeking service connection for right ear pain. 08/16/2011, VA 21-4138 Statement in Support of Claim; 05/07/2012, VA 21-4138 Statement in Support of Claim. This is consistent with service treatment records, which appear to show complaints of right ear pain. 02/11/2012, STR-Medical, at 26-28. Nevertheless, at his July 2021 Board hearing, the Veteran indicated that his symptoms have always been in the left ear, rather than the right. 07/01/2021, Heating Transcript, at 10. He described his symptoms as a dull, throbbing pain into his ear, indicated that he could hardly hear, reported constant ear issues after service, and reported having sought treatment from a family doctor (who was unable to provide a diagnosis) but not from a specialist. Id. 10-11. Based on this evidence, the Board finds that a VA examination is warranted. The Board also finds that the claimed issues is best characterized as service connection for an ear disability, manifesting as both pain and hearing loss. The Board hopes the VA examination will provide insight into the nature of the Veteran's ear disability, as well as clarify the side(s) that are impacted by the reported symptoms. 5. Entitlement to service connection for a disability described as chronic jaw pain is remanded. Service treatment records show that the Veteran sought treatment for issues with his jaw. He complained of his jaw not closing all the way and of right ear pain when his moved, or put pressure on, his jaw. 02/11/2012, STR-Medical, at 26 & 28. At his Board hearing, he suggested that he still has ear pain and testified that he has sought treatment for his ear and jaw pain from a family doctor (who was unable to offer a diagnosis) but not from a specialist. Based on this evidence, the Board finds that a VA examination is warranted. 6. Entitlement to service connection for a left lower extremity disability (claimed as tibia and fibula impairment) 7. Entitlement to service connection for a right lower extremity disability (claimed as tibia and fibula impairment) The Veteran seeks service connection for a disability described as tibia and fibula impairment. 08/16/2011, VA 21-4138 Statement in Support of Claim. A May 2012 statement references the "tibia and fibula in [his] left leg." 05/07/2012, VA 21-4138 Statement in Support of Claim. The AOJ, however, adjudicated the claimed disability as a bilateral issue. 05/31/2012, Rating Decision Codesheet. At his July 2021 Board hearing, the Veteran testified that he underwent bilateral knee replacements within the last two years. 07/01/2021, Heating Transcript, at 3. He reported that he injured his right knee during basic training. Id. at 2. The Veteran's May 1984 separation examination indicates that he had a right knee scar from trauma. 02/11/2012, STR-Medical, at 20. Additionally, private treatment records show diagnoses of bilateral lower extremity edema and generalized osteoarthrosis. 07/26/2016, Medical Treatment Record - Non-Government Facility. Based on this evidence, the Board finds that a VA examination is warranted. Regarding the issue of service connection for a left leg disability (claimed as tibia and fibula impairment), the Board acknowledges that this issue overlaps with the issue of service connection for a left knee disability. Nevertheless, as the medical evidence shows lower extremity diagnoses that are not necessarily specific to the knee, the Board will continue to treat both issues as separate. *** Finally, it appears that relevant private treatment records have not been obtained. As mentioned, the Veteran has stated that he underwent bilateral knee replacements within the last two years. Treatment for these procedures have not been obtained. The Veteran has identified Dr. J.M.V. at the Bone and Joint Institute of South Georgia as the provider for this treatment. 07/01/2021, Hearing Transcript, at 7-8. At his Board hearing, the Veteran reported having sought treatment for a private family doctor for his ear and jaw pain. It is unclear whether records of this treatment have been submitted or the AOJ has made efforts to obtain then. The record also shows that, in May 2012, the Veteran authorized the release of treatment records from Dr. R.Z. 05/04/2012, VA 21-4142 Authorization for Release of Information. There is no indication that records of this treatment have since been submitted or that the AOJ made any effort to obtain any such records. These matters are REMANDED for the following actions: 1. Take appropriate action to obtain any relevant private treatment records that remain outstanding. Please see above for a summary of the apparently missing records to include for his knees and other disabilities on appeal. See 07/01/2021, Hearing Transcript, at 7-8; 05/04/2012, VA 21-4142 Authorization for Release of Information. 2. After completing #1, schedule the Veteran for a VA examination or multiple examinations, as needed, for his claimed disabilities. The examiner must review the claims file. For each claimed disability, if a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below. Please complete the Functional Impact section of the report. The examiner is asked to provide a response to the following: (a.) Does the Veteran have a left ankle disability that is at least as likely as not (probability of approximately 50 percent) related to service? (b.) Does the Veteran have a left shoulder disability that is at least as likely as not (probability of approximately 50 percent) related to service? (c.) Does the Veteran have a right knee disability that is at least as likely as not (probability of approximately 50 percent) related to service? (d.) Does the Veteran have a left knee disability that is at least as likely as not (probability of approximately 50 percent) related to service or secondary (caused/aggravated) to a service-connected disability? (e.) Does the Veteran have any other left or right lower extremity disability that is at least as likely as not (probability of approximately 50 percent) related to service? Private treatment records show diagnoses of bilateral lower extremity edema and generalized osteoarthrosis. (f.) Does the Veteran have a left or right ear disability (manifesting as either pain or hearing loss) that is at least as likely as not (probability of approximately 50 percent) related to service or secondary (caused/aggravated) to a service-connected disability? (g.) Does the Veteran have a jaw disability that is at least as likely as not (probability of approximately 50 percent) related to service or secondary (caused/aggravated) to a service-connected disability? (Continued on the next page) Provide a comprehensive rationale to support the opinions. In providing the requested opinion, consider the Veteran's description of his in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. López, 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.