Citation Nr: 21065300 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 19-24 177 DATE: October 25, 2021 ORDER The application to reopen the claim of entitlement to service connection for a right hand condition is granted. The application to reopen the claim for entitlement to service connection for a rib condition is granted. The application to reopen the claim for entitlement to service connection for a right knee condition is granted. REMANDED The issue of entitlement to service connection for a right hand condition is remanded. The issue of entitlement to service connection for a rib condition is remanded. The issue of entitlement to service connection for a right knee condition is remanded. The issue of entitlement to service connection for an acquired psychiatric condition is remanded. FINDINGS OF FACT 1. A March 21, 1985 rating decision denied the Veteran's claim for entitlement to service connection for a rib condition and a right hand condition. The Veteran did not appeal, and that decision became final. 2. A February 8, 2015 rating decision denied entitlement to service connection for a right knee condition. The Veteran did not appeal that decision and it became final. 3. Evidence received since the March 1985 rating decision is new and material to the right hand and rib conditions, and evidence received since the February 2015 decision is new and material to the right knee condition. CONCLUSIONS OF LAW 1. The March 1985 rating decision that denied service connection for a rib condition and a right hand condition is final. 38 U.S.C. § 7104; 38 C.F.R. § 20.1103. 2. The criteria for reopening the Veteran's claim for service connection for a rib condition and right hand condition are met. 38 U.S.C. §§ 5103A, 5108; 38 C.F.R. § 3.156(a). 3. The February 2015 rating decision that denied service connection for a right knee condition is final. 38 U.S.C. § 7104; 38 C.F.R. § 20.1103. 4. The criteria for reopening the Veteran's claim for service connection for a right knee condition are met. 38 U.S.C. §§ 5103A, 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from January 1978 to October 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2017 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified in a Board hearing before the undersigned Veterans Law Judge (VLJ) and the transcript is of record. If a claim of entitlement to service connection has been previously denied and that submission is final, the claim can be reopened and reconsidered only if new and material evidence is presented. 38 U.S.C. § 5108. The preliminary question of whether a previously denied claim should be reopened is a jurisdictional matter that must be addressed before the Board may consider the underlying claim on its merits. Barnett v. Brown, 8 Vet. App. 1, 4 (1995), affd, Barnett v. Brown, 83 F.3d 130 (Fed. Cir. 1996). Evidence is considered "new" when it was not previously submitted to agency decision makers. 38 C.F.R. § 3.156. It is considered "material" when the evidence, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. 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. Id.; Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). The credibility of newly submitted evidence is presumed when determining whether a claim should be reopened. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Evidence that is merely cumulative of other evidence in the record cannot be new and material even if the evidence was not previously presented to the Board. See Maxon v. West, 12 Vet. App. 453, 459 (1999). 1. The application to reopen the claim of entitlement to service connection for a right hand condition is granted Since the March 1985 rating decision, lay statements indicating that the Veteran injured his right hand during a simulated grenade demonstration while in service and now experiences problems with his hand during cloudy weather have been associated with the record. See 5/19/2021 Hearing Transcript. The evidence is new because it was not previously submitted and material because it relates to the previously unestablished fact that the Veteran may have experienced a simulated grenade explosion injury while in service and currently experiences right hand discomfort. Because the requirements of 38 C.F.R. § 3.156(a) are met, the claim for service connection for a right hand condition is reopened. 2. The application to reopen the claim for entitlement to service connection for a rib condition is granted Since the March 1985 rating decision, medical evidence indicating chest pain has been associated with the record. See 7/24/2019 CAPRI; 4/19/2018 Medical Treatment Records-Furnished by SSA. The evidence is new because it was not previously submitted and material because it relates to the previously unestablished fact that the Veteran currently experiences chest pain. Therefore, the claim for service connection for a rib condition is hereby reopened. See 38 C.F.R. § 3.156(a). 3. The application to reopen the claim for entitlement to service connection for a right knee condition is granted After the February 2015 rating decision, medical evidence noting that the Veteran was diagnosed with a right knee strain was added to the record. See 10/16/2017 C& P Examination. The evidence is new because it was not previously submitted and material because it relates to the previously unestablished fact of a current right knee disability. Because the requirements of 38 C.F.R. § 3.156(a) are met, the claim for service connection for a right knee condition is reopened. REASONS FOR REMAND VA is obligated to provide an examination when there is competent medical evidence of a disability that may be associated with an in-service event, injury, or disease, but there is insufficient information to decide on the claim. See 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Then, once VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). 1. The issue of entitlement to service connection for a right hand condition is remanded. Here, there is evidence of right hand discomfort or pain during inclement weather. See 5/19/2021 Hearing Transcript. There is also evidence of right hand injuries during service. See Id.; 12/2/2014 Service Treatment Record-Medical. However, there is insufficient information to determine whether the two are related. Thus, remand for a VA examination and opinion is needed. 2. The issue of entitlement to service connection for a rib condition is remanded. Similarly, there is evidence of current chest pain and breathing difficulties and evidence of a chest injury while in service. Id. Nonetheless, there is insufficient evidence to determine whether there is a nexus between the Veteran's current symptoms and his in-service injury. Therefore, remand for a VA examination and opinion is needed. 3. The issue of entitlement to service connection for a right knee condition is remanded. In this case, the Veteran was afforded two VA examinations in furtherance of his claim for entitlement to service connection for a right knee condition. The January 2015 examination opinion is inadequate for VA purposes because it is conclusory. See Stefl v. Nicholson, 21 Vet. App. 120 (2007). Likewise, the October 2017 VA examination is inadequate for VA purposes. Opinions that state an opinion cannot be provided without resorting to "mere speculation" are inadequate. See Jones v. Shinseki, 23 Vet. App. 382, 390-91 (2010). According to the examiner, he was unable to provide an opinion without resorting to "mere speculation" because of a lack of continuity of care. Therefore, remand is needed to obtain an adequate examination opinion. 4. The issue of entitlement to service connection for an acquired psychiatric condition is remanded. A psychological examination was conducted, and opinion provided, in October 2017. However, the opinion did not consider all the relevant evidence of record and is, thus, inadequate. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). Primarily, the examiner did not consider the psychosomatic implications of the Veteran's physical ailments while in service, as evidenced by an in-service examiner's portrayal of the Veteran's bilateral knee pain as a possible hysterical reaction. See 12/2/2014 Service Treatment Record. Therefore, remand for a VA psychological examination is needed. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination by an appropriate clinician to determine the nature and etiology of the Veteran's right hand condition(s). The entire claims file should be made available to and be reviewed by the clinician in conjunction with this request. After examining the Veteran and considering his reported history, the clinician should address the following: (a) Please identify any current right hand condition(s) by diagnosis. (b) For any disorder identified, please state whether it is as likely as not (50 percent probability or more) that the disorder had its onset in or is otherwise related to service. A complete, well-reasoned rationale must be provided for any opinion offered. Citation to relevant peer reviewed medical literature reviewed in rendering the opinion would be of considerable assistance to the Board. If the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known fact, or by a deficiency in the record or the examiner, i.e., additional facts are required, or the examiner does not have the needed knowledge or training 2. Schedule the Veteran for a VA examination by an appropriate clinician to determine the nature and etiology of the Veteran's rib condition(s). The entire claims file should be made available to and be reviewed by the clinician in conjunction with this request. After examining the Veteran and considering his reported history, the clinician should address the following: (a) Please identify any current rib condition(s) by diagnosis. (b) For any disorder identified, please state whether it is as likely as not (50 percent probability or more) that the disorder had its onset in or is otherwise related to service. A complete, well-reasoned rationale must be provided for any opinion offered. Citation to relevant peer reviewed medical literature reviewed in rendering the opinion would be of considerable assistance to the Board. If the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known fact, or by a deficiency in the record or the examiner, i.e., additional facts are required, or the examiner does not have the needed knowledge or training 3. Schedule the Veteran for a VA examination by an appropriate clinician to determine the nature and etiology of the Veteran's right knee condition(s). The entire claims file should be made available to and be reviewed by the clinician in conjunction with this request. After examining the Veteran and considering his reported history, the clinician should address the following: (a) Please identify any current right knee condition(s) by diagnosis. (b) For any disorder identified, please state whether it is as likely as not (50 percent probability or more) that the disorder had its onset in or is otherwise related to service. A complete, well-reasoned rationale must be provided for any opinion offered. Citation to relevant peer reviewed medical literature reviewed in rendering the opinion would be of considerable assistance to the Board. If the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known fact, or by a deficiency in the record or the examiner, i.e., additional facts are required, or the examiner does not have the needed knowledge or training. 4. Schedule the Veteran for a VA examination by an appropriate clinician to determine the nature and etiology of the Veteran's psychological condition(s). The entire claims file should be made available to and be reviewed by the clinician in conjunction with this request. After examining the Veteran and considering his reported history, the clinician should address the following: (a) Please identify any current psychological condition by diagnosis. (b) For any disorder identified, please state whether it is a least as likely as not that the disorder had its onset in or is otherwise related to service. (c) If the Veteran has a current diagnosis of PTSD, please identify the particular stressor(s) upon which PTSD is based. Please specifically state whether it is at least as likely as not (50 percent probability or greater) that the Veteran's claimed PTSD is causally related to his in-service stressor. (d) If a psychological condition other than PTSD is diagnosed, please provide an opinion regarding whether it is at least as likely as not (50 percent probability or greater) that the Veteran's diagnosed psychological condition is related to his in-service stressor. Comment specifically about possible concussions received while playing football in service. (e) Please comment, to the best of your ability, whether the prodromal period for any currently diagnosed psychological disorder as likely as not had its onset during the Veteran's period of active service or within one year following discharge. A complete rationale for the examiner's opinions should be provided, citing to specific evidence of record, as necessary. Citation to relevant peer reviewed medical literature reviewed in rendering the opinion would be of considerable assistance to the Board. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and whether there is additional evidence that would permit the opinion to be provided. S.C. Krembs Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Z. Sloley, 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.