Citation Nr: 21069654 Decision Date: 11/19/21 Archive Date: 11/19/21 DOCKET NO. 18-15 678 DATE: November 19, 2021 ORDER New and material evidence having been received, the Veteran's claims of entitlement to service connection for avascular necrosis of the shoulders and hips are reopened. Entitlement to service connection for pseudofolliculitis barbae (PFB) is granted. REMANDED Entitlement to service connection for avascular necrosis of the shoulders is remanded. Entitlement to service connection for avascular necrosis of the hips is remanded. Entitlement to service connection for an acquired psychiatric disability, to include as secondary to avascular necrosis of the hips, is remanded. FINDINGS OF FACT 1. In a January 2014 rating decision, the regional office (RO), in pertinent part, denied the Veteran's claims of entitlement to service connection for avascular necrosis of the shoulders and hips. The Veteran did not file an appeal or submit new and material evidence concerning these issues within one year of this rating decision. 2. Additional evidence received since the issuance of the January 2014 rating decision denying entitlement to service connection for avascular necrosis of the shoulders and hips is new, relates to unestablished facts necessary to support the claims, and raises a reasonable possibility of substantiating the claims. 3. Resolving reasonable doubt in the Veteran's favor, his PFB began during active duty service. CONCLUSIONS OF LAW 1. The January 2014 rating decision denying entitlement to service connection for avascular necrosis of the shoulders and hips is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. New and material evidence has been received sufficient to reopen the Veteran's claims of entitlement to service connection for avascular necrosis of the shoulders and hips. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156, 20.1103. 3. The criteria for entitlement to service connection for PFB have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from June 1973 to June 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2014 rating decision of the Department of Veterans Affairs (VA) RO in North Little Rock, Arkansas, which, in pertinent part, denied the Veteran's claims of entitlement to service connection for avascular necrosis of the shoulders, avascular necrosis of the hips, PFB, and anxiety and depression (which has been recharacterized more broadly to a claim of entitlement to service connection for an acquired psychiatric disability, pursuant to Clemons v. Shinseki, 23 Vet. App. 1 (2009)). The Veteran timely appealed. In July 2021, the Veteran and his military comrade testified before the undersigned Veterans Law Judge in a virtual hearing. A copy of the hearing transcript has been associated with the claims file. New and Material Evidence Generally, when a claim is disallowed, it may not be reopened and allowed unless new and material evidence is submitted. 38 U.S.C. § 5108. The Board must determine de novo whether new and material evidence has been received. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). The Board must preliminarily decide whether new and material evidence has been presented in a case, before addressing the merits of the claim. Butler v. Brown, 9 Vet. App. 167, 171 (1996). "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 requirement of new and material evidence raising a reasonable possibility of substantiating the claim is a low threshold, to be viewed as "enabling rather than precluding reopening." Shade v. Shinseki, 24 Vet. App. 110, 121 (2010). In adjudicating a claim for benefits, VA must consider all pertinent lay and medical evidence of record. 38 U.S.C. §§ 1154 (a), § 5107; 38 C.F.R. § 3.303. 1. New and material evidence having been received, the Veteran's claims of entitlement to service connection for avascular necrosis of the shoulders and hips are reopened. The Veteran's claims of entitlement to service connection for avascular necrosis of the shoulders and hips were denied on the merits in a January 2014 rating decision. The Veteran did not appeal this decision, nor did he submit new and material evidence within one year of it; the evidence on which the reopening of these claims is based is not dated until several years later, as shown below. See 38 C.F.R. § 3.156 (b); Young v. Shinseki, 22 Vet. App. 461, 466 (2009); see also Evans v. Brown, 9 Vet. App. 273, 282-3 (1996) (providing that new and material evidence must have been associated with the file since the last prior final denial of the claim, whether the denial was on the merits or on procedural grounds). Accordingly, this rating decision is final, and new and material evidence is therefore required to reopen the claims. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156 (a); 20.1103. New and material evidence has been received concerning these issues in the form of new VA treatment records and the Veteran's sworn testimony at the July 2021 hearing. At the time of the January 2014 rating decision, such evidence was not of record. Accordingly, this evidence relates to unestablished facts necessary to reopen the claims and raises a reasonable possibility of establishing service connection. See 38 C.F.R. § 3.156 (a); Shade v. Shinseki, 24 Vet. App. 110, 117-121 (2010) (noting that the new-and-material-evidence standard does not require proof of all the elements for a given claim on appeal, just presentation of reasonable possibility of substantiating an element that was basis for prior denial, which is a "low threshold"). Therefore, reopening the claims is warranted. Service Connection Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.§§ 1110, 1131; 38 C.F.R. § 3.303. Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.§ 5107; see Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 2. Entitlement to service connection for PFB is granted. The Board finds that the evidence of record supports a grant of service connection for PFB. First, there is evidence of a current disability. The Veteran submitted a March 2014 letter from his treating physician indicating that he was diagnosed with this condition sometime in 1989 or 1990 and currently suffers from it. He also proffered a copy of a shaving profile due to PFB from 1998. Second, there is credible evidence of an in-service event, disease, or injury, as the Veteran and his military comrade competently and credibly testified that the Veteran's face would break out and swell whenever he shaved during his active duty service. Third, the Board finds that the evidence is at least in equipoise concerning whether the Veteran's disability had its onset during active duty service. While the Veteran's service treatment records are admittedly silent for complaint, diagnosis, or treatment of PFB, he testified to its absence prior to service and, as discussed above, he and his military comrade attested to its presence therein. The Veteran is competent to report the onset of symptoms that he can experience through his senses. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). In this case, the Veteran can attest to the shaving bumps and swelling on his face and is competent to report that these shaving bumps are the same as those he experienced during service. The Board therefore concludes that, with the benefit of the doubt resolved in the Veteran's favor, a grant of service connection for PFB is warranted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990) ("[T]he 'benefit of the doubt' standard is similar to the rule deeply embedded in sandlot baseball folklore that 'the tie goes to the runner'.... [I]f... the play is close, i.e., 'there is an approximate balance of positive and negative evidence,' the veteran prevails by operation of [statute.]."). REASONS FOR REMAND 1. Entitlement to service connection for avascular necrosis of the shoulders is remanded. 2. Entitlement to service connection for avascular necrosis of the hips is remanded. The Veteran underwent VA examinations for his claimed avascular necrosis of the shoulders and hips in July 2013. His diagnoses were confirmed; however, the examiner determined that they were less likely than not incurred in our caused by service. The examiner reasoned that the Veteran's service treatment records contain no treatment for a hip disability. He observed that, while there were notes of treatment for shoulder pain after lifting heavy objects, avascular necrosis is not seen with frequency and it would be extremely rare to receive trauma to both shoulders and hips to cause development of avascular or aseptic necrosis. The examiner conceded that the Veteran's disabilities were severe but found that there was not enough evidence to support that it was triggered by any injury on active duty. He detailed that avascular necrosis has multiple etiological factors but is largely idiopathic in nature; there are three traumatic factors and eighteen non-traumatic factors listed in Up-to-Date. The Board finds that the portion of the opinion concerning the Veteran's claimed avascular necrosis of the hips is improperly predicated in part on the lack of treatment for a hip disability. First, a lack of in-service evidence of complaints of a disability is not always fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Second, the Veteran's service treatment records do note a pelvic issue that the examiner did not address. Third, the Veteran's testimony concerning hip pain has not been considered. Miller v. Wilkie, 32 Vet. App. 249 (2020) (explaining that a VA examination is inadequate if the examiner does not consider lay evidence). The Board also finds that the remainder of the opinion is inadequate. While the examiner noted that avascular necrosis has multiple etiological factors, three of which are traumatic and eighteen of which are not, the examiner has merely concluded that because of the ratio of traumatic to non-traumatic factors, the Veteran's disabilities are not due to traumatic factors. The examiner did not provide an explanation as to why the trauma in service is unlikely to have caused the resultant disabilities. Thus, on remand, addendum opinions must be obtained. 3. Entitlement to service connection for an acquired psychiatric disability, to include as secondary to avascular necrosis of the hips, is remanded. The Veteran's claim of entitlement to service connection for an acquired psychiatric disability is inextricably intertwined with his claim of entitlement to service connection for avascular necrosis of the hips, and thus, a decision on that issue cannot be rendered at this time. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). As the Veteran's claim is being remanded, a VA opinion should also be obtained regarding the etiology of the acquired psychiatric disability. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's diagnosed avascular necrosis of the shoulders is at least as likely as not related to service, to include as due to heavy lifting during service and documented related in-service shoulder injuries. 2. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's diagnosed avascular necrosis of the hips is at least as likely as not related to service, to include as due to documented in-service pelvic problems. 3. Schedule the Veteran for a VA examination for his acquired psychiatric disability. The examiner must review the claims file. The examiner is asked to provide a response to the following: a) Is any diagnosed acquired psychiatric disability at least as likely as not related to service? b) If the Veteran's claimed avascular necrosis of the shoulders or the hips is service-connected, the examiner must determine whether the diagnosed acquired psychiatric disability is at least as likely as not proximately due to either or both? c) If the Veteran's claimed avascular necrosis of the shoulders or the hips is service-connected, the examiner must determine whether the diagnosed acquired psychiatric disability is at least as likely as not aggravated, i.e., worsened beyond its natural progression, by either or both disabilities? A full rationale must be provided for all medical opinions given. If the examiner is unable to provide an opinion without resorting to mere speculation, he or she should explain why this is so. The examiner shall then explain whether the inability to provide a more definitive opinion is the result of a need for more information and indicate what additional evidence is necessary, or whether he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 4. After completing the above action, and any other development deemed necessary, the claims must be readjudicated. If the Veteran's claims remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an opportunity to respond, the appeal must be returned to the Board for appellate review. JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Bush 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.