Citation Nr: 21074861 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 18-31 021 DATE: December 16, 2021 ORDER New and material evidence having been received, the application to reopen the claim for service connection for a back disability is granted. Entitlement to service connection for a right knee injury/pain is denied. REMANDED Entitlement to service connection for a back disability is remanded. Entitlement to service connection for a right hand injury is remanded. Entitlement to service connection for a left hand injury is remanded. Entitlement to service connection for headaches is remanded. Entitlement to service connection for a psychiatric disorder is remanded. Entitlement to service connection for a left knee injury/pain is remanded. FINDINGS OF FACT 1. A final December 2010 rating decision denied service connection for a back condition; newly received evidence raises a reasonable possibility of substantiating the claim. 2. The Veteran does not have a current right knee disability. CONCLUSIONS OF LAW 1. New and material evidence has been received to warrant reopening the claim for service connection for a back disability. 38 U.S.C. §§ 5107, 5108; 38 C.F.R. § 3.156. 2. The criteria for entitlement to service connection for a right knee injury/pain have not been met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from April 1976 to March 1986. For his meritorious service, the Veteran was awarded (among other decorations) the Army Achievement Medal and the Parachute Badge. This case comes before the Board of Veterans' Appeals (Board) on appeal from April 2017, July 2017, and March 2018 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In September 2021, the Veteran testified at a hearing held before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. During the Veteran's hearing, the Veteran argued that a claim for service connection for a neck disability had been filed, but it had never been adjudicated. The Board reviewed the evidence of record, and although service connection for a neck disability was not specifically stated as a claim, it was inferred. See December 2016 VA Form 21-526EZ, Fully Developed Claim (Compensation). Therefore, this issue is referred to the Agency of Original Jurisdiction (AOJ) for adjudication. 1. New and material evidence having been received, the application to reopen the claim for service connection for a back disability. A previously denied claim may be reopened by submission of new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. Evidence is new if it has not been previously submitted to agency decision makers. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). Evidence is material if it, either by itself or considered in conjunction with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence cannot be cumulative or 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. When determining whether the claim should be reopened, the credibility of the newly submitted evidence is generally to be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); Justus v. Principi, 3 Vet. App. 510 (1992). Moreover, in Shade v. Shinseki, 24 Vet. App. 110, 117 (2010), the United States Court of Appeals for Veterans Claims (Court) clarified that the phrase "raises a reasonable possibility of substantiating the claim" is meant to create a low threshold that enables, rather than precludes, reopening. Specifically, the Court stated that reopening is required when the newly submitted evidence, combined with VA assistance and considered with the other evidence of record, raises a reasonable possibility of substantiating the claim. Id. The claim for service connection for a low back condition was originally denied in a December 2010 rating decision based essentially on the finding that the Veteran's back condition was not related to his military service because the Veteran had a self-limited back condition in service and a hiatus of many years without care after service. In January 2011, the Veteran filed a notice of disagreement (NOD) with regard to the December 2010 rating decision that denied service connection for his back condition. Subsequently, in December 2011, the RO issued a rating decision. However, the Veteran did not timely file a VA Form 9, substantive appeal, to perfect his appeal. Therefore, the December 2010 rating decision became final. The evidence received since the final December 2010 rating decision includes a July 2017 VA examination with a medical opinion. The Board finds that this new evidence relates to an unestablished fact necessary to substantiate the claim of service connection and is sufficient to reopen the claim. See Shade, 24 Vet. App. at 117-18. Thus, the Board finds that the additional evidence is both new and material, and the claim for entitlement to service connection for a back condition is reopened. 2. Entitlement to service connection for a right knee injury/pain. The Veteran claims that his knee problems stemmed from jumping out of airplanes while in service; his knees continued to bother him even after service. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Certain chronic diseases, including arthritis, will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Furthermore, it is the responsibility of the Board to assess the credibility and weight to be given to the evidence. Hayes v. Brown, 5 Vet. App. 60 (1993). In March 2018, the Veteran was afforded a VA examination for his knees. Initial range of motion physical testing of the right knee revealed that his right knee was normal and did not cause functional impairment. The VA examiner noted that the Veteran's right knee was normal. This examination is adequate, as it was based on an in-person examination of the Veteran, and it contains sufficient information for the Board to make an informed decision. While the Board has considered the Veteran's lay assertions, they do not outweigh the competent evidence of record, which shows that there is no present disability (or evidence of functional impairment) associated with right knee pain. The evidence does not support that the Veteran has a right knee disability related to service. For the reasons discussed above, the Board concludes that the Veteran does not meet the criteria for service connection for a right knee disability. The benefit-of- the-doubt doctrine has been considered; however, as the preponderance of the evidence is against the claim, it is inapplicable in the instant appeal. 38 U.S.C. § 5107(b). REASONS FOR REMAND 1. Entitlement to service connection for a back disability is remanded. The Veteran claims that his back disability is related to when he injured his back in service from parachute jumping. The Veteran was afforded VA examinations along with medical opinions in November 2010 and July 2017. The VA medical opinions are inadequate because they did not consider the Veteran's lay statements that he had back pain ever since service and the fact that his back was already bothering him before the car accident in 2002. See September 2021 Hearing Transcript. A remand is warranted for a new VA addendum medical opinion to address this matter. 2. Entitlement to service connection for a right hand injury is remanded. 3. Entitlement to service connection for a left hand injury is remanded. The Veteran is seeking service connection for a right hand and left hand injury. During his September 2021 hearing, the Veteran testified that his right hand and left hand disabilities were secondary to his neck condition. Additionally, the Veteran asserts that he hurt his hands during parachute jumping while in service. See December 2016 VA Form 21-4138 Statement in Support of claim. In March 2017, the Veteran had a VA examination for hand/finger conditions. The Veteran was only diagnosed with a right hand laceration between the 4th and 5th web space with residual scarring. He was not diagnosed with any other hand disability. The VA examiner related his right hand diagnosis to military service. The Veteran was service-connected for this. VA treatment records show that the Veteran was diagnosed with atrophy of hand muscles. Thus, a remand is warranted for a new VA addendum medical opinion to take into account any diagnosis of a bilateral hand disability in relationship to his military service. Also, the medical opinion should address whether the Veteran's bilateral hand disability is secondary to his neck disability. 4. Entitlement to service connection for headaches. The Veteran claims that he experienced headaches in-service. His headaches occurred after he backed up his truck and hit a tree; he had headaches ever since. See September 2021 Hearing Transcript. The Veteran also asserts that he sustained a head injury after he played football. He also sustained injuries from parachute jumping. See June 2017 NOD. In March 2017, the Veteran was afforded a VA examination for headaches. The Veteran was diagnosed with tension headaches with a diagnosis date of May 2012. The VA examiner provided a negative medical opinion. However, the examiner did not fully explain how his current headaches were not related to his in-service complaints of headaches. Also, the VA examiner did not consider the Veteran's lay statements that he had headaches ever since service, the Veteran's complaints of headaches due to injury from parachute jumping, and the Veteran's complaints of headaches due to injury from playing football while in service. A remand is warranted for a new VA addendum medical opinion to address these matters. 5. Entitlement to service connection for a psychiatric disorder is remanded. The Veteran asserts that his psychiatric disorder occurred when he lost his first child while he was in service. He has had mental problems ever since service. In July 2018, the Veteran was afforded a VA examination for psychiatric disorders. The Veteran was diagnosed with recurrent depressive disorder and alcohol use disorder. The VA examiner opined that the Veteran's psychiatric disorder was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The Veteran met the DSM-5 criteria for recurrent depressive disorder and alcohol use disorder. He attributed his difficulties to his wife losing their first child and while in the military and then taking off with their second child. He also attributed his difficulties to being physically assaulted by a girlfriend's son after the military. The July 2018 VA medical opinion is inadequate because the VA examiner does not give an explanation as to how the Veteran's psychiatric disorder is not related to his military service. The examiner just recounted what the Veteran said without offering any commentary or conclusions of his own. Therefore, a remand is warranted for a new VA addendum medical opinion to address this matter. 6. Entitlement to service connection for a left knee injury/pain is remanded. Where there is a timely notice of disagreement (NOD) received and no statement of the case (SOC) has been issued, the Board has limited jurisdiction to remand for SOC issuance. Manlincon v. West, 12 Vet. App. 238 (1999). In this regard, in response to an April 2017 rating decision that in pertinent part denied service connection for a left leg injury (also claimed as a left knee injury), in a timely June 2017 NOD, the Veteran indicated that he wished to appeal the issue of service connection for a left knee injury. Neither the April 2018 nor the January 2019 SOC adjudicated this issue. Accordingly, a remand for an SOC is necessary. The matters are REMANDED for the following action: 1. Issue a statement of the case (SOC) that addresses the issue of entitlement to service connection for a left knee injury/pain. See Manlincon v. West, 12 Vet. App. 238 (1999). Then, if and only if, a timely substantive appeal is filed in response to that SOC, the claim should be returned to the Board for further review. 2. Obtain any outstanding VA treatment records and/or private treatment records and associate with the claims file. 3. Obtain a VA addendum medical opinion to determinate the nature and etiology of the Veteran's back condition. A copy of this remand and claims file must be thoroughly reviewed. The VA examiner must consider the following: Is it at least as likely as not that the Veteran's current back condition is related to his military service, to include complaints of back pain and parachute jumping? The VA examiner should consider the Veteran's lay statements that he had back pain ever since service and before his 2002 motor vehicle accident. See September 2021 Hearing Transcript. All opinions must be accompanied by a sufficient rationale. A negative opinion cannot be solely based on the absence of medical evidence. 4. Obtain a VA addendum medical opinion to determine the nature and etiology of the Veteran's right and left hand disability. A copy of this remand and claims file must be thoroughly reviewed. The VA examiner must consider the following: Identify and list any right and/or left hand disabilities present during the period on appeal. Is it at least as likely as not that the Veteran's right and/or left hand disability is related to his military service, to include right hand laceration and injury from parachute jumping? Is it at least as likely as not that the Veteran's right and/or left hand disability is caused by, proximately due to, and/or aggravated by his neck disability? All opinions must be accompanied by a sufficient rationale. A negative opinion cannot be solely based on the absence of medical evidence. 5. Obtain a VA addendum medical opinion to determine the nature and etiology of the Veteran's headaches. A copy of this remand and claims file must be thoroughly reviewed. The VA examiner must consider the following: Is it at least as likely as not that the Veteran's current headaches are related to his military service? The VA examiner must consider the Veteran's complaints of headaches in service, lay statements that the Veteran injured his head while playing football and parachute jumping, and the Veteran's statements that he had headaches ever since service. See June 2017 NOD and September 2021 Hearing Transcript. All opinions must be accompanied by a sufficient rationale. A negative opinion cannot be solely based on the absence of medical evidence. 6. Obtain a VA addendum medical opinion to determine the nature and etiology of the Veteran's psychiatric disorder. A copy of this remand and claims file must be thoroughly reviewed. The VA examiner must consider the following: Is it at least as likely as not that the Veteran's psychiatric disorder is related to his military service? The Veteran asserts that his psychiatric disorder is due to the fact that his wife lost their first child while in the military. The Veteran had difficulties ever since. The VA examiner should consider the July 2018 VA examination. All opinions must be accompanied by a sufficient rationale. A negative opinion cannot be solely based on the absence of medical evidence. Evan M. Deichert Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Crawford, 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.