Citation Nr: 21073675 Decision Date: 12/09/21 Archive Date: 12/09/21 DOCKET NO. 17-66 623 DATE: December 9, 2021 ORDER Whether the petition to reopen the claim for service connection for a right shoulder disability is warranted is granted. REMANDED Entitlement to an evaluation in excess of 10 percent disabling for service-connected left wrist disability is remanded. Entitlement to service connection for a right shoulder disability, to include as secondary to service-connected disabilities, is remanded. Entitlement to total disability based on individual unemployability (TDIU) is remanded. Entitlement to eligibility for automobile and adaptive equipment or adaptive equipment only is remanded. FINDINGS OF FACT 1. The Veteran's claim for a right shoulder disability was initially denied in an August 1991 rating decision. The evidence generated within one year of that decision was not new and material, nor did the Veteran disagree with that denial. 2. Evidence associated with the claims file since the 1991 rating decision is not cumulative or redundant of the evidence previously of record and is sufficient to raise a reasonable possibility of substantiating the claim of entitlement to service connection for a left knee disability. CONCLUSIONS OF LAW 1. The August 1991 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302. 2. The criteria to reopen the claim of service connection for a right shoulder disability have been met. 38 U.S.C. § 5103, 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1978 to May 1990. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2013 and July 2014 rating decisions from the Department of Veterans Affairs (VA) Regional Office (RO). In September 2021, the Veteran provided sworn testimony before the undersigned Veterans Law Judge (VLJ) at a Board hearing. A copy of the hearing transcript has been associated with the electronic claims file. Neither the Veteran nor his representative has alleged any deficiency with the conduct of the Board hearing as to the duties discussed in Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). For clarity purposes, the Board will address the several appeals streams and requests of clarification from the Veteran from concerns ongoing with those separate claims throughout the current appeal. First, the Board acknowledges that there were misunderstandings as to the reduction of the Veteran's ratings for the service-connected right knee and left knee to 10 percent, to include as due to error by the attorney of record at the time (see below) and that the evidence provided indicates instability and worsening during flare ups. Albeit the confusion, the Veteran was provided a new examination in May 2019; and in a June 2019 rating decision, he was granted a 20 percent rating for his right knee and a 20 percent rating for his left knee, effective June 26, 2018. Although the rating decision did not consider instability as noted by the Veteran, the Veteran did not timely appeal this rating decision, and it is not on appeal at this time. However, as the severity of the bilateral knees is pertinent to the current claims on appeal, the Board will be requesting an updated VA examination. Next, subsequent to the July 2014 notice of disagreement (NOD), the RO provided further development as to the shoulders and in a March 2018 rating decision, the Veteran's claim for service connection for a left shoulder disability was granted with an evaluation of 20 percent, effective April 26, 2012. As such, that claim is no longer on appeal before the Board at this time. However, the Veteran filed an NOD as to the rating assigned for the left shoulder disability in April 2018, and he was provided an SOC in February 2019. In March 2019, the Veteran requested to withdraw the claim, but then immediately revoked that withdrawal and requested the appeal remain open. He also submitted a supplemental claim in April 2019 for reconsideration of the evaluation of the left shoulder. While there may have been confusion with the request to withdraw and an immediate subsequent request to revoke that withdrawal, followed by the claim for reconsideration, the Veteran discussed the left shoulder disability and how it has worsened during the 2021 Board hearing. As the left shoulder disability is not currently on appeal, the Board does not have jurisdiction for that claim, but refers the claim back to the RO to consider whether the claim should be adjudicated. Finally, the Board notes that in July 2018, after certification of the case to the Board, the Veteran revoked representation from his first private attorney and in August 2018, the attorney confirmed and withdrew as the Veteran's representative. The record reflects that a notice was provided to the VA, stating that effective August 8, 2018, the attorney was withdrawing from representation and as the Veteran requested the withdraw, this would not harm the Veteran. As such, the Board finds that the attorney has properly revoked representation. See 38 C.F.R. § 14.631(c). In August 2018, the Veteran submitted VA Form 21-22 for a state representative, but in March 2021, the Veteran revoked that representative from August 2018, and submitted a new VA Form 21-22, appointing his current representative, Tammy James. See 38 C.F.R. § 20.608 (a). Request to Reopen As a threshold matter, the Board must determine whether new and material evidence has been submitted to reopen any previously denied claims. Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). VA law provides that a claimant may reopen a finally adjudicated claim by submitting new and material evidence. 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. See 38 U.S.C.§ 5108; 38 C.F.R. § 3.156(a). The United States Court of Appeals for the Federal Circuit (Court) has held that evidence is presumed credible for the purposes of reopening a claim. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The presumption is rebuttable when the evidentiary assertion is inherently incredible. King v. Brown, 5 Vet. App. 19, 21 (1993) (evidentiary assertions are presumed true except when the evidentiary assertion is inherently incredible or when the fact asserted is beyond the competence of the person making the assertion). The Court has held, however, that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board. Anglin v. West, 203 F.3d 1343 (Fed. Cir. 2000). In deciding whether new and material evidence has been received, the Board looks to the evidence submitted since the last final denial of the claim on any basis. Bostain v. West, 11 Vet. App. 124, 126-27 (1998). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). When deciding as to whether received evidence meets the definition of new and material evidence, the Board should take cognizance of whether that evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Id. Whether new and material evidence has been received to reopen a claim for a right shoulder disability A. Finality By way of history, the Veteran's initial claim for entitlement to service connection for a right shoulder disability was denied in an August 1991 rating decision. In that decision, the RO determined the Veteran's right shoulder disability existed prior to service and was not permanently aggravated as a result of military service. The Veteran was notified of the decision in August 1991, but he did not appeal. In addition, as there were no medical records or evidence submitted within one year of the 1991 decision, the Board finds the 1991 rating decision became final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. B. New and Material Evidence Thereafter, in April 2012, the Veteran filed a claim, in part, for service connection for his right shoulder disability. In November 2012, the RO issued a rating decision denying reopening the claim. Thereafter, the Veteran filed a request for reconsideration for reopening the claim in January 2013, and in the subsequent October 2013 rating decision, the RO did grant reopening the claim. Nonetheless, the Board is required to determine whether new and material evidence has been received before it can reopen a claim and readjudicate service connection on the merits. Barnett, 83 F.3d 1380, 1383-1384. After reviewing the evidence associated with the claims file since the last final decision, the Board finds that new and material evidence sufficient to reopen the claim has been received. For example, the Board acknowledges the post-service treatment records shows that he sought treatment for shoulder pain at VA Medical Centers (VAMC), to include the January 2013 letter from the Veteran's doctor that he has a history of bilateral shoulder pain which started after a tractor-trailer accident in service, and that he has arthritis in the humerus and restricted range of motion. The Board acknowledges that the threshold for reopening a claim is low. Shade, 24 Vet. App. 110, 118. As the evidence relates to an unestablished fact necessary to substantiate the claim and the evidence is new and material, the claim may be reopened. See 38 C.F.R. § 3.156; Shade, 24 Vet. App. 110. The claim for a right shoulder disability is granted to this extent only. REASONS FOR REMAND Although the Board regrets the additional delay, a remand is necessary to ensure due process and proper development regarding the Veteran's claims. First, the Veteran stated throughout the period on appeal that he has received private medical treatment, to include the June 2012 statement that he received private medical services in Fayetteville through his wife's insurance prior to their move to Georgia, and in the 2021 Board hearing, it was again noted that he has used his wife's private insurance. In March 2018 VA examination, he also reported that he gets cortisone injections every six months from private Orthopedic physician. These records must be requested on remand. Further, the Veteran's contentions include that his injuries are due to a vehicle accident during service, and that he had treatment at a hospital in Germany. While the RO did request the name of the hospital during development and the Veteran was unable to provide the exact name, he did state that he was hospitalized in First Panzer Concern in Stuttgart, Germany. This is a U.S. military installation in Germany, part of U.S. Army Garrison Stuttgart. The Veteran's STR's in June 1979 also noted the traffic accident and that the Veteran had been sent to the emergency room at the U.S. Army Hospital in Wuerzburg. In addition, in the 2018 VA examination, he also reported that he was seen at Womack Hospital and had physical therapy there after his return to the states. Post-service, in the June 2012 statement, he stated he received medical services following service from the VAMC in Winston-Salem, which are not of record; he also has continued to receive medical services from the VAMC in Georgia, but the records in the file are only through May 2019. Any military and VA treatment records are within VA's constructive possession and must be obtained regardless of their relevance as long as they are sufficiently identified. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (VA has a duty to assist in obtaining sufficiently identified VA medical records regardless of their relevance). See also Jones v. Wilkie, 918 F.3d 922 (Fed. Cir. 2019) (confirming the holding in Sullivan). As such, a remand is required to allow VA to obtain them. 1. Entitlement to an evaluation in excess of 10 percent disabling for the left wrist disability. In addition to the above medical records, the Veteran's claim for a higher evaluation for the left wrist disability requires an updated VA examination. The last examination was conducted in 2014. As there is evidence that the Veteran's service-connected left wrist disability may have worsened since his last VA medical examination, the Board determines that a contemporaneous VA examination is necessary to ascertain the current severity of the Veteran's service-connected left wrist disability. Snuffer v. Gober, 10 Vet. App. 400, 408 (1997) (requiring a new examination where the claimant asserts that a disability has increased in severity since the time of the last VA examination). 2. Entitlement to service connection for a right shoulder disability. As for the claim for service connection for a right shoulder disability, the Board finds that the opinions of record are not adequate. Specifically, as noted above, there are allegedly missing medical records from service that the Veteran contends will show he injured his right shoulder. Further, the initial denial for a right shoulder disability was that the Veteran had a pre-existing condition. However, there is no corresponding medical opinion indicating that the Veteran's right shoulder clearly and unmistakably existed prior to service, and that it was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness with adequate rationale. Further, no examiner has properly considered that aggravation means an increase in disability beyond the natural progression or considered the Veteran's contentions. Once VA undertakes a duty to provide a medical examination, due process requires an adequate medical opinion. Barr, 21 Vet. App. 303, 311. Consequently, a remand is necessary for an opinion, and the opinion provider must provide adequate rationale for any opinion rendered, to include aggravation from service to include due to the alleged injury. Further, the June 2017 X-ray findings noted that further evaluation with a dedicated right humerus examination was needed; the findings also showed that "there is heterotopic ossification noted within the soft tissues along the course of the noted along a longitudinal fashion within the region of the triceps, felt to represent myositis ossificans, incompletely evaluated." The examiner should consider this evidence. Finally, the Veteran is now service-connected for a left shoulder disability; therefore, an opinion is also needed to determine if there is similar symptomatology and, if not, whether the Veteran's service-connected left shoulder disability proximately caused or aggravated his non-service-connected right shoulder disability. 3. Entitlement to TDIU and eligibility for automobile and adaptive equipment or adaptive equipment only. Finally, as for the claims for entitlement to TDIU and for eligibility for automobile and adaptive equipment or adaptive equipment only, the Board also finds a remand is necessary. First, the Board is cognizant that the Veteran does not meet the requirements for a schedular TDIU based on his current total disability rating. His request for an automobile allowance also does not currently meet the required regulations. That notwithstanding, the claims are intertwined with the increased rating claim and the service connection claim that are the subject of the present appeal and remand. Accordingly, adjudication of the TDIU and automobile claims must await development and readjudication of those claims, as a claim that is inextricably intertwined with another claim that remains undecided and pending before VA must be adjudicated prior to a final order on the pending claim, so as to avoid piecemeal adjudication. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Second, the Board finds that updated VA examinations are warranted to ascertain the current severity of all of the Veteran's service-connected disabilities, to include the wrist, the shoulder, and bilateral knees. As noted above, an examination for the left wrist is being requested; and an examination for the shoulders is to be requested for the service connection claim for the right shoulder, and in relation to that, the current severity and nature of the left shoulder should be obtained as well. As for the bilateral knees, the Board again notes that there was confusion as to the procedural history and examinations of the bilateral knee disabilities (see introduction above). However, while the Veteran did not timely appeal the June 2019 rating decision as to the current rating for the bilateral knees, the Board notes that there was a request in March 2019 prior to the rating decision from the RO for an addendum opinion as to the range of motion on repeated use/flare-ups as well as an opinion as to instability disappearing between the examinations conducted. While the May 2019 examiner noted instability was unable to be tested due to pain, the Veteran specifically requested his instability be considered on multiple occasions, and it was also noted in his Social Security Administration (SSA) medical records and his VA medical records. Further, the examiner did not provide an opinion as to range of motion on repeated use/flare ups. Unfortunately, as stated above, as the Veteran did not appeal the June 2019 rating decision, it is not in front of the Board at this time. Regardless, the Veteran has argued throughout his appeal for eligibility for TDIU and for automobile allowance that his instability of the knees and the pain on motion have caused him to be unemployable and that he requires automobile modification due to same. Therefore, an updated examination for the bilateral knees to ascertain the current severity and nature of his bilateral knee disabilities will also be requested on remand. The Board further requests an opinion as to whether the Veteran has instability of his knees, regardless of whether it is noted during the examination, with consideration of the instability noted in the SSA records and medical records. Finally, after the above development, if and only if the Veteran's total disability rating is still under the threshold required for schedular TDIU, the RO must be cognizant that when percentage requirements are not met, entitlement to a TDIU on an extraschedular basis may be considered when the Veteran is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities. See 38 C.F.R. § 4.16(b). In this case, consideration should be given to the SSA disability finding that the Veteran has been considered disabled since May 2013 due to his disabilities of bilateral knees, shoulders, leg braces, TENS unit for shoulders, learning issues, and status-post fracture in the left distal radius and ulna; that his highest degree was a high school education and he has not attended special education courses or specialized training classes; and that the types of jobs the Veteran has worked between 2005 until 2013, the date he stated he last worked full time, is as a diesel mechanic or truck driver. In the SSA determination, it was noted that he does not have the residual functional capacity (RFC) to perform his past relevant work as his past work is noted to be "medium" and his RFC is light maximum sustained work capability. The determination included that the Veteran has a high school education with skilled past work, but as he has no specialized job training that allows him entry into skilled work, "he does not have transferable skills." Further, in the May 2019 VA examination for the knees, the examiner opined that the knees conditions limit his ability to stand, walk and sit for long periods of time, and walk up the stairs. Importantly, since the denial of the claim for TDIU, the Veteran is now service connected for the left shoulder and his bilateral knees received a higher rating. However, the Board cannot consider entitlement to a TDIU on an extraschedular basis in the first instance. Instead, the Board is required to refer all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a), to the Director for extraschedular consideration. See 38 C.F.R. § 4.16(b); Bowling v. Principi, 15 Vet. App. 1 (2001). Thereafter, the Board has jurisdiction to review the Director's determination. Wages v. McDonald, 27 Vet. App. 233 (2015) (explaining that "the Board is required to obtain the Director's decision before the Board may award extraschedular TDIU"). On remand, if the aforementioned development does not provide the Veteran totally disability rating with the required ratings for a schedular TDIU, this referral should take place. The matters are REMANDED for the following action: 1. Obtain VA medical records from the VAMC in Winston-Salem from 1990 to 2010; the request must include a search for paper records; and from April 2019 to present from the Atlanta VAMC and associate them with the claims file. 2. Request the Veteran fill out VA Form 21-4142 to obtain his private medical records; including the private orthopedic doctors, to include where he receives cortisone injections, and any other private medical providers from North Carolina and Georgia. Document all attempts to obtain them, including all negative responses. If any requested records cannot be obtained, then notify the Veteran and give him an opportunity to provide the records. 3. Request the Veteran's entire military personnel file and service medical records, to include the hospital records from 1979 from First Panzer Concern in Stuttgart, Germany, part of U.S. Army Garrison Stuttgart; the emergency room at the U.S. Army Hospital in Wuerzburg; and from Womack Hospital. 4. DO NOT PROCEED until the above has been completed to the extent possible. 5. Schedule the Veteran for a VA examination to determine the current nature and severity of the wrist disability, to include any functional impairments. 6. Schedule the Veteran for a VA examination to determine the nature and severity of the knee disabilities, to include any functional impairments, as well as determine all of his current diagnoses. The examiner must review the claims file, to include this remand, and should note that review in the report. The examiner is asked to consider the Veteran's competent reports of his knees giving way and instability, with consideration of the SSA medical records noting instability of the bilateral knees. 7. Schedule the Veteran for a VA examination to determine the nature and severity of the bilateral shoulder disabilities, to include functional impairments, and to determine the etiology of the right shoulder disability. The examiner must review the claims file, to include this remand, and should note that review in the report. Based on a review of the claims file and the clinical findings of the examination, the examiner is requested to provide an opinion on whether: (a.) is it clear and unmistakable (obvious, manifest, undebatable) that the deemed preexisting shoulder disability was not aggravated (did not increase in severity) beyond its natural progression during service, to include following the in-service tractor-trailer accident? An opinion that the condition was not aggravated by service means it did not undergo an increase in severity or, if so, any such increase was due to the natural progression of the condition. The examiner should consider the entrance clinical evaluation noted no defects and did not indicate any residuals of the right shoulder. If the right shoulder disability is found to have NOT been aggravated by service, the examiner is then asked to opine whether: (b.) it at least as likely as not (50 percent or greater probability) that the Veteran's right shoulder disability was caused by or proximately due to the service-connected left shoulder disability? (c.) OR it at least as likely as not (50 percent or greater probability) that the Veteran's right shoulder disability was aggravated by service-connected disabilities, to include the left shoulder and left wrist disabilities and overcompensation on the right shoulder due to those disabilities? The examiner should cite to any evidence to support the opinions. The examiner is advised that for opinions regarding aggravation by service-connected disabilities, a "permanent" worsening or increase in severity of the right shoulder disability is NOT required to demonstrate "aggravation." Rather, aggravation is shown if there is any incremental increase in disability, meaning any additional impairment of earning capacity above the degree of disability existing before the increase, in a nonservice-connected disability resulting from a service-connected disability, regardless of its permanence. If the right shoulder disability is not deemed to have been aggravated by service, and deemed to have not been caused or aggravated by the Veteran's service-connected left shoulder disability, the examiner should provide the following opinion: (d.) Is it at least as likely as not (50 percent or greater probability) that the Veteran's right shoulder disability (1) began during service; (2) manifested within one year after discharge from service; or (3) was incurred in or due to any event, disease, or injury during active service, to include injuries from the vehicle accident in 1979? The examiner is asked to consider the Veteran's private records show the severity of the shoulders, to include the flexion and range of motion decreased. The examiner is also asked to consider why the private medical records, the March 2018 VA examination, and the 2019 VA examination all show "totally different results." The Veteran in the 2021 hearing also noted the VA examinations marked "no" to any imaging of the shoulder being done, despite the private medical records providing X-ray findings. The 2017 X-ray findings showed that "there is heterotopic ossification noted within the soft tissues along the course of the noted along a longitudinal fashion within the region of the triceps, felt to represent myositis ossificans." The examiner should consider this evidence, as it was not considered on the most recent VA examination report. Rationale must be provided for the opinions proffered. If the examiner determines that a requested opinion is not possible without resort to mere speculation, then the examiner must explain why. 8. If and only if the Veteran's total disability rating remains below the schedular threshold for entitlement to TDIU following the above development, submit the Veteran's claim for TDIU to VA's Director of Compensation Service, or his/her designee, for extraschedular consideration. (Continued on the next page) 9. Then, after ensuring that the above development, and any other necessary development, has been completed to the extent possible, readjudicate the remanded claims, to include entitlement to automobile allowance. If the claims remain denied, the Veteran and his representative should be furnished an appropriate supplemental statement of the case. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G.Hoy, 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.