Citation Nr: 21070989 Decision Date: 11/29/21 Archive Date: 11/29/21 DOCKET NO. 17-27 433 DATE: November 29, 2021 ORDER As new and material evidence has been received, the appellant's claim to entitlement to service connection for a right shoulder disability (previously claimed as multiple joint pain and polytrauma) is reopened. As new and material evidence has been received, the appellant's claim to entitlement to service connection for a back disability (previously claimed as multiple joint pain and polytrauma) is reopened. Entitlement to service connection for a left hip disability (previously claimed as multiple joint pain and polytrauma) is denied. REMANDED Entitlement to service connection for a right shoulder disability (previously claimed as multiple joint pain and polytrauma) is remanded. Entitlement to service connection for a left shoulder disability (previously claimed as multiple joint pain and polytrauma) is remanded. Entitlement to service connection for a back disability (previously claimed as multiple joint pain and polytrauma) is remanded. Entitlement to service connection for a cervical spine disability (previously claimed as multiple joint pain and polytrauma) is remanded. Entitlement to service connection for a bilateral elbow disability (previously claimed as multiple joint pain and polytrauma) is remanded. Entitlement to service connection for a right wrist disability (previously claimed as multiple joint pain and polytrauma) is remanded. Entitlement to service connection for a bilateral hand disability (previously claimed as multiple joint pain and polytrauma) is remanded. Entitlement to service connection for a right knee disability (previously claimed as multiple joint pain and polytrauma) is remanded. Entitlement to service connection for a left knee disability (previously claimed as multiple joint pain and polytrauma) is remanded. FINDINGS OF FACT 1. A February 2019 Board decision denied service connection for the Veteran's claimed right shoulder and back disability. The Veteran was notified of this decision, but did not initiate an appeal, therefore the decision became final. 2. The evidence received since that decision, when considered by itself or in connection with evidence previously assembled, relates to unestablished facts necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim of service connection for right shoulder and back disability. 3. The preponderance of the evidence is against a finding that the Veteran has a left hip disability. CONCLUSIONS OF LAW 1. The February 2019 Board decision, which denied the Veteran's claim of entitlement to service connection for a right shoulder disability and back disability, is final. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.104, 3.156, 20.201, 20.302, 20.1103. 2. Evidence received since the February 2019 Board decision in relation to the Veteran's claim for entitlement to service connection for a right shoulder and back disability is new and material; therefore, the claims are reopened. 38 U.S.C. § 5108 ; 38 C.F.R. § 3.156. 3. The criteria for entitlement to service connection for a left hip disability have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107(b); 38 C.F.R. §§ 3.102, 3.303(b), 3.307, 3.309(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in active-duty service from September 1999 to December 2003 to include service in Southwest Asia. This matter is on appeal from a March 2017 rating decision. The Board remanded this appeal in February 2019 and June 2020 for additional development. The Board notes that the Veteran in October 2016 claimed entitlement to service connection for polytrauma and multiple joint pains. In a March 2020 VA examination, the examiner stated that the use of the term polytrauma and multiple joints was not accurate to refer to a singular diagnosis or disability and noted that these terms are usually used to collectively describe multiple injuries; as such, the examiner evaluated the Veteran for all applicable joints to include the cervical spine; hands; knees; elbow; hips; wrists; and back. The Board notes that the February 2019 Board decision adjudicated the issues for a right shoulder and back disability separately from the Veteran's claim for polytrauma and multiple joints. The Board notes that in the Veteran's separation examination in September 2003, the Veteran reported feeling "worn out" with joint pain to include his knees, shoulders, and back primarily. The Veteran has continued to claim multiple joint pain and polytrauma without specifics. As such, the Board finds that it would be more beneficial for the Veteran to expand and recharacterize the Veteran's claimed issue to entitlement to service connection for a right and left shoulder disability; cervical spine disability; back disability; left hip disability; bilateral elbow disability; right wrist disability; bilateral hand disability; and right and left knee disability. New and Material Evidence Board decisions are final on the date of the date stamped on the face of the decision, unless the Chairman of the Board ordered reconsideration of the decision. 38 U.S.C. §§ 7103 (a), 7104(b); 38 C.F.R. § 20.1100. In order to reopen a claim which has been denied by a final decision, the claimant must present new and material evidence. 38 U.S.C. § 5108. New evidence means existing evidence not previously submitted to VA. 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 and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, the "credibility" of newly presented evidence is to be presumed unless the evidence is inherently incredible or beyond the competence of the witness). The language of 38 C.F.R. § 3.156 (a) creates a low threshold for finding new and material evidence and views the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." Evidence "raises a reasonable possibility of substantiating the claim," if it would trigger VA's duty to provide an examination in adjudicating a non-final claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). Right shoulder and back disability In a February 2019 Board decision, the Board denied entitlement to service connection for a right shoulder and back disability. Evidence at the time of the Board's decision included the Veteran's service treatment records (STRs); military personnel records; submitted lay statements; private and VA medical records; and VA examinations. The Board decision found the evidence did not show a finding that the Veteran had a current diagnosed right shoulder and back disability. New evidence since the February 2019 Board decision includes VA and private medical treatment records, VA examinations, submitted lay statements, and the Veteran's substantive appeal. VA examinations in January 2020 and March 2021 have diagnosed the Veteran with a right shoulder and back disability. The evidence and statements, if presumed credible, raise a reasonable possibility of substantiating the claim. Therefore, new and material evidence has been received, and the claim for service connection for a right shoulder and back disability is reopened. See Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Service Connection Service connection is granted on a direct basis when there is competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a), (d). The Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. See Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Board determinations with respect to the weight and credibility of evidence are factual determinations going to the probative value of the evidence. Layno v. Brown, 6 Vet. App. 465, 469 (1994). In relevant part, 38 U.S.C. § 1154 (a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. 38 U.S.C. § 5107 (b); see Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102. The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). Left Hip disability Review of the evidence of record shows no complaints, treatments or diagnoses for a left hip disability. The Veteran has not submitted any statement, argument, or medical evidence to specifically shows he has a current left hip disability. The Board notes that at a March 2021 VA examination the Veteran reported back pain that radiated into his left buttock and also noted by the examiner to involve the left hip; however, the examiner also found no functional limitation and the Veteran demonstrated normal range of motion with the left hip. After review of the evidence, the Board finds the Veteran does not have a current diagnosis of a rib disability. As such, the first element for service connection has not been met. In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). In summary, the preponderance of the record weighs against a finding that the Veteran's has had a current left hip disability at any time during the course of the appeal. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. As the preponderance of the evidence is against the Veteran's claim, that doctrine does not apply, and the Veteran's claim must be denied. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. REASONS FOR REMAND The Board finds that remand is warranted for additional development. The June 2020 Board decision remanded for opinions to consider whether the Veteran's claimed disabilities were related to active-duty service to include an inservice 2003 IED explosion or to environmental exposure from Southwest Asia service. The Veteran was afforded a March 2021 VA examination. However, the Board finds that after review of the March 2021 VA opinions, the examiner only opined that the Veteran's diagnosed disabilities were not related to Southwest Asia service without providing specific rationale or reference to the Veteran's service treatment record (STR) to support their findings. The Board also notes the opinions also do not address whether the Veteran's diagnosed disabilities were directly due to active-duty service to include the inservice 2003 IED. The VA examiner opined that there were no records or claims of chronic exposure to waste and fumes. However, review of the Veteran's STRs show an August 2003 post-deployment examination where the Veteran reported exposure to insecticide; vehicle fumes; JPB fuel; smoke from burning trash and feces; industrial pollution; ammonia; and sand and dust. The Board notes that a medical opinion based on an inaccurate factual premise is not probative. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). As such, the Board finds that opinions are inaccurate and remand warranted for addendum opinion. The Board also notes that in the October 2016 claim the Veteran indicated that the claimed polytrauma as "related to PTSD" and that the Veteran is currently service connected for PTSD. Resolving reasonable doubt, the Board finds that the Veteran has also raised a secondary theory of service connection and therefore is also to be addressed on remand. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file all updated and outstanding treatment records. 2. Obtain a VA medical opinion on the Veteran's claimed right and left shoulder; cervical spine; back; bilateral elbow; bilateral hands; right wrist; and right and left knee disability. The record and a copy of this remand must be made available to the examiner. If the examiner determines that an examination of the Veteran is necessary to provide the requested opinion with rationale, then such examination should be scheduled. The VA examiner should address the following: (a.) Identify each current right and left shoulder; cervical spine; back; bilateral elbow; bilateral hands; right wrist; and right and left knee disability which may include pain alone that rises to the level of functional impairment. If either disability existed during the appeal period to the present but has resolved, this should be made clear. (b.) The examiner should record in detail the Veteran's history of his right and left shoulder; cervical spine; back; bilateral elbow; bilateral hands; right wrist; and right and left knee disability, and how they affect his ability to function. (c.) For each right and left shoulder disability identified, whether resolved or active, please address whether it is at least as likely as note (a probability of 50 percent or greater) that such disability is etiologically related to the Veteran's active-duty military service to include the 2003 IED explosion and environmental exposure from service in Southwest Asia? (d.) For each cervical spine disability identified, whether resolved or active, please address whether it is at least as likely as note (a probability of 50 percent or greater) that such disability is etiologically related to the Veteran's active-duty military service to include the 2003 IED explosion and environmental exposure from service in Southwest Asia? (e.) For each back disability identified, whether resolved or active, please address whether it is at least as likely as note (a probability of 50 percent or greater) that such disability is etiologically related to the Veteran's active-duty military service to include the 2003 IED explosion and environmental exposure from service in Southwest Asia? (f.) For each bilateral elbow disability identified, whether resolved or active, please address whether it is at least as likely as note (a probability of 50 percent or greater) that such disability is etiologically related to the Veteran's active-duty military service to include the 2003 IED explosion and environmental exposure from service in Southwest Asia? (g.) For each bilateral hand disability identified, whether resolved or active, please address whether it is at least as likely as note (a probability of 50 percent or greater) that such disability is etiologically related to the Veteran's active-duty military service to include the 2003 IED explosion and environmental exposure from service in Southwest Asia? (h.) For each right wrist disability identified, whether resolved or active, please address whether it is at least as likely as note (a probability of 50 percent or greater) that such disability is etiologically related to the Veteran's active-duty military service to include the 2003 IED explosion and environmental exposure from service in Southwest Asia? (i.) For each right and left knee disability identified, whether resolved or active, please address whether it is at least as likely as note (a probability of 50 percent or greater) that such disability is etiologically related to the Veteran's active-duty military service to include the 2003 IED explosion and environmental exposure from service in Southwest Asia? (j.) Is it at least as likely as not (50 percent probability or more) that the Veteran's right and left shoulder disability is due to the Veteran's PTSD? (k.) Is it at least as likely as not (50 percent probability or more) that the Veteran's right and left shoulder disability is aggravated by the Veteran's PTSD? (l.) Is it at least as likely as not (50 percent probability or more) that the Veteran's cervical spine disability is due to the Veteran's PTSD? (m.) Is it at least as likely as not (50 percent probability or more) that the Veteran's cervical spine shoulder disability is aggravated by the Veteran's PTSD? (n.) Is it at least as likely as not (50 percent probability or more) that the Veteran's back disability is due to the Veteran's PTSD? (o.) Is it at least as likely as not (50 percent probability or more) that the Veteran's back disability is aggravated by the Veteran's PTSD? (p.) Is it at least as likely as not (50 percent probability or more) that the Veteran's bilateral elbow disability is due to the Veteran's PTSD? (q.) Is it at least as likely as not (50 percent probability or more) that the Veteran's bilateral elbow disability is aggravated by the Veteran's PTSD? (r.) Is it at least as likely as not (50 percent probability or more) that the Veteran's bilateral hand disability is due to the Veteran's PTSD? (s.) Is it at least as likely as not (50 percent probability or more) that the Veteran's bilateral hand disability is aggravated by the Veteran's PTSD? (t.) Is it at least as likely as not (50 percent probability or more) that the Veteran's right wrist disability is due to the Veteran's PTSD? (u.) Is it at least as likely as not (50 percent probability or more) that the Veteran's right wrist disability is aggravated by the Veteran's PTSD? (v.) Is it at least as likely as not (50 percent probability or more) that the Veteran's right and left knee disability is due to the Veteran's PTSD? (w.) Is it at least as likely as not (50 percent probability or more) that the Veteran's right and left knee disability is aggravated by the Veteran's PTSD? (x.) In addressing any of the above, the VA examiner should note that "Aggravation" is defined as any worsening beyond the natural progression of the disability. The examiner should establish a baseline level of all diagnosed disabilities prior to aggravation. If the examiner is unable to establish a baseline, the examiner should provide specific explanation or rationale as to why. (y.) The examiner is advised that the Veteran is competent to report in-service events and treatment, and the Veteran's symptoms and history, and such reports and assertions must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports, the examiner must provide a reason for doing so. (z.) The examiner is asked to address the Veteran's submitted lay statement; the August 2003 post deployment and September 2003 separation examination in the Veteran's STRs; and the July 2004, January 2020, and March 2021 VA examination findings. (aa.) If the examiner cannot provide the above opinions, the examiner is advised that he/she must explain why the requested opinion cannot be provided (i.e., because the limits of medical knowledge had been exhausted or because further information to assist in making the determination is needed, such as additional records and/or diagnostic studies). (bb.) If the examiner cannot provide an answer because further information is needed to assist in making the determination, all reasonable steps to obtain the missing information should be exhausted before concluding that the answer cannot be provided. (cc.) The opinions should include a discussion of any pertinent studies or medical literature, as well as pertinent evidence on file. (dd.) If the VA examiner is unable to provide an opinion without resort to speculation, he or she should explain whether the inability is due to the limits of the examiner's medical knowledge, medical knowledge in general or there is evidence that, if obtained, would permit the opinion to be provided. A clearly stated rationale for any opinion offered should be provided. 3. After completion of the above and any additional development deemed necessary, the issues on appeal should be reviewed with consideration of all applicable laws and regulations. If any benefit sought remains denied, the Veteran should be furnished a supplemental statement of the case and be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Yang, Attorney-Advisor 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.