Citation Nr: 21075436 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 14-38 822A DATE: December 20, 2021 ORDER As new and material evidence sufficient to reopen the previously denied claim for service connection for joint and bone pain has not been received, the application to reopen is denied. REMANDED Entitlement to a rating in excess of 20 percent for status post right thumb fracture with degenerative joint disease (DJD) is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. Entitlement to service connection for headaches is remanded. Entitlement to service connection for residuals of a traumatic brain injury (TBI) is remanded. Entitlement to an initial rating in excess of 50 percent prior to August 1, 2018, and in excess of 70 percent as of August 1, 2018, for posttraumatic stress disorder (PTSD) with generalized anxiety disorder (GAD) is remanded. FINDINGS OF FACT 1. In a June 2006 rating decision, the RO denied service connection for joint and bone pain on the basis that there was no evidence of any in-service complaints or within one year or linking the Veteran's joint and bone pain to service; the Veteran submitted a notice of disagreement (NOD) but did not perfect an appeal for this claim. 2. Evidence received since the June 2006 RO decision is cumulative and redundant of evidence already of record and does not raise a reasonable possibility of substantiating the claim of entitlement to service connection for joint and bone pain. CONCLUSIONS OF LAW 1. The June 2006 rating decision denying service connection for joint and bone pain is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 20.1103. 2. New and material evidence sufficient to reopen the Veteran's claim of entitlement to service connection for joint and bone pain has not been submitted; the claim is not reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty for training in the United States Marine Corps from April 1985 to September 1985 and on active duty from December 1990 to May 1991. In April 2018, the Veteran testified at a video conference hearing before the undersigned. In February 2021, he testified at a virtual hearing before the undersigned. 1. Whether new and material evidence has been submitted sufficient to reopen the previously denied claim for service connection for joint and bone pain Where service connection for a disability has been denied in a final decision, a subsequent claim for service connection for that disability may be considered on the merits only if new and material evidence has been received since the time of the prior adjudication. New evidence means 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). According to the United States Court of Appeals for Veterans Claims (Court), the pertinent VA law requires that in order to reopen a previously and finally disallowed claim, there must be new and material evidence presented or secured since the time that the claim was finally disallowed on any basis. See Evans v. Brown, 9 Vet. App. 273 (1996). When determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, raise a reasonable possibility of substantiating the claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). The newly presented evidence need not be probative of all the elements required to award the claim, just probative of each element (or at least one element) that was a specified basis for the last disallowance of the claim. See Evans, supra at 283; see also Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998) (noting that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant's injury or disability, even where it would not be enough to convince the Board to grant the claim). The credibility of the newly submitted evidence is presumed for the purposes of reopening the claim. See Justus v. Principi, 3 Vet. App. 510 (1992). The Veteran's claim for service connection for joint and bone pain was initially denied in a June 2006 rating decision. The RO determined that there was no evidence of joint and bone pain in service or within one year of discharge or linking the Veteran's joint and bone pain to service. The Veteran submitted a timely NOD, but did not perfect the appeal of this denial. The June 2006 rating decision thereby became final. The previous denial of service connection was premised on findings that there was no evidence of in-service joint or bone pain or a medical nexus linking joint or bone pain to service. Thus, for evidence to be material in this matter, (i.e., relating to unestablished facts necessary to substantiate the claim, and raising a reasonable possibility of substantiating the claim), it would have to show that there is now evidence of in-service joint or bone pain or a medical nexus linking joint and bone pain to service. The Veteran has submitted no such evidence. The new evidence submitted or obtained since the last final denial in June 2006 are (1) VA examinations for the Hands and Fingers and psychiatric disorders, (2) written statements and hearing testimony from the Veteran, (3) treatment records from the Eloy Detention Center, and (4) VA treatment records (VA TRs). The VA examinations do not reference joint and bone pain, other than the separately service-connected right thumb. The Veteran's written statements and testimony do not provide any evidence or suggestion of an in-service injury or medical nexus. Specifically, the written statements only generally seek service connection but do not provide any specific assertions regarding an in-service injury or nexus. The hearing testimony did not address this claim. The records from the Eloy Detention Center provided no suggestion of an in-service injury or medical nexus. The only reference to joint and bone pain in the new evidence is a January 2021 VA treatment record noting "chronic RA and OA joint pains." However, this record does not reference his military service or an in-service injury or provide any opinion linking the pain to service. In sum, the evidence submitted since the June 2006 RO denial of service connection does not include any evidence showing in-service joint and bone pain or a medical nexus between joint and bone pain and service. The additional treatment records and statements/hearing testimony are "new" but not material. Rather, they are simply redundant of evidence of record at the time of the prior denial and do not constitute new evidence. Bostain v. West, 11 Vet. App. 124 (1998) (lay hearing testimony that is cumulative of previous contentions considered by decision maker at time of prior final disallowance of the claim is not new evidence). As stated above, in order to reopen the previously denied claim for service connection for joint and bone pain, the Veteran must submit evidence that shows joint and bone pain in service or otherwise linking them to service. The evidence he has submitted, as well as the evidence obtained by VA, fails to establish such. Accordingly, the Board finds that the evidence received since the June 2006 rating decision, while not previously considered, does not raise a reasonable possibility of substantiating the claim. The petition to reopen the Veteran's claim for service connection for joint and bone pain is denied. The Board is grateful to the Veteran for his service, and regrets that it cannot render a favorable decision in this matter. REASONS FOR REMAND 1. Entitlement to a rating in excess of 20 percent for status post right thumb fracture with DJD is remanded. The Veteran was most recently examined for his right thumb disability in August 2019. The examiner noted that the Veteran had flare ups and that pain and fatigue significantly limited functional ability during a flare up. However, the range of motion measurements provided for this additional limitation were identical to those provided at the beginning of the examination. Further, the examiner noted decreased range of motion of the index and little fingers but did not provide an opinion on whether this was related to the Veteran's service-connected right thumb disability. In light of this inconsistency and lack of clarity, the examination is not adequate to decide the claim and the claim must be remanded for an addendum opinion. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Additionally, the Veteran testified at his February 2021 Board hearing that he had been scheduled for physical therapy for his right thumb at VA. On remand, the Agency of Original Jurisdiction (AOJ) must also obtain any outstanding VA TRs. 38 C.F.R. § 3.159(c)(2). 2. Entitlement to a TDIU is remanded. The Veteran claims that he is unemployable due to his right thumb and psychiatric disabilities. As such, a decision on the remanded increased rating issues could significantly impact a decision on the issue of TDIU. The issues are inextricably intertwined and a remand of the TDIU claim is required. 3. Entitlement to service connection for headaches is remanded. The Veteran was afforded a VA examination for his headaches claim in June 2015. June 2015, VA Headaches examination. The examiner diagnosed the Veteran with tension headaches and noted they were aggravated by insomnia. The Veteran also claimed at his February 2021 Board hearing that he believed his headaches were related to his psychiatric disorder. In light of these suggestions, the Board finds that remand is appropriate to obtain an opinion on whether the Veteran's headaches were caused or aggravated by his service-connected psychiatric disorder. 4. Entitlement to service connection for residuals of a TBI is remanded. The Veteran claims that he has residuals of a TBI that first began in service. He, therefore, believes service connection is warranted. Despite evidence of current complaints of possible TBI residuals including headaches, a January 1987 service treatment record (STR) noting feeling dizzy and lightheaded after a motorcycle accident and June 1990 STRs noting he was kicked in the head, and the Veteran's argument that these are related, he has not been afforded a VA examination or opinion for this claim. The Board finds that remand is warranted to obtain such an opinion. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). 5. Entitlement to an initial rating in excess of 50 percent prior to August 1, 2018, and in excess of 70 percent as of August 1, 2018, for PTSD with GAD is remanded. The Veteran has identified outstanding psychiatric treatment records. Specifically, the February 2020 VA contract examination notes that he was hospitalized for one month at a Maricopa County mental health unit in 2018 and one week at the psychiatric ward at Memorial Hospital in Phoenix in January 2019. The Veteran also testified at his February 2021 Board hearing that he had been hospitalized the previous month at a Maricopa County mental hospital. The AOJ has not attempted to obtain these records or an appropriate release from the Veteran. The claim must be remanded to attempt to obtain these records, including obtaining a release from the Veteran. 38 C.F.R. § 3.159(c). The matters are REMANDED for the following actions: 1. Obtain any outstanding VA treatment records from the Phoenix VA Medical and any other facilities identified by the Veteran from February 2021 to the present. 2. Request a release of information from the Veteran for any outstanding psychiatric treatment records, including from (1) a 2018 hospitalization at a Maricopa County mental health unit, (2) a January 2019 hospitalization at Memorial Hospital in Phoenix, and (3) a January 2021 hospitalization at a Maricopa County mental health unit. Attempt to obtain all outstanding treatment records from any facilities or providers identified by the Veteran. Make two requests for the authorized records unless it is clear after the first request that a second request would be futile. 3. Send the Veteran's claims file to an appropriate examiner to provide an addendum opinion on the nature and etiology of his claimed headaches. The examiner must review the entire claims file in conjunction with the opinion. The Veteran may be recalled for examination if deemed necessary. The examiner should state whether it is at least as likely as not that the Veteran's current tension headaches: (a.) are related to an in-service injury, event, or disease, including excessive noise exposure, (b.) is proximately due to his service-connected PTSD with GAD, or (c.) underwent an incremental increase (was aggravated), regardless of permanence, beyond its natural progression by his service-connected PTSD with GAD. The examiner must specifically address the June 2015 VA examiner's note that the Veteran's headaches were aggravated by insomnia and the Veteran's contentions that his headaches are caused by his psychiatric symptoms. The term "incremental increase in disability" means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. Moreover, any "incremental increase in disability" need not be permanent. The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion (e.g., etiology) as it is to find against the conclusion. 4. Schedule the Veteran for a VA examination with an appropriate examiner to address the nature and etiology of his claimed TBI residuals. The examiner must review the entire claims file in conjunction with the opinion. The examiner should identify any possible current residuals of a TBI. If the examiner identifies any such residuals, they should state whether it is at least as likely as not that the residuals are related to military service. The examiner should address (1) the January 1987 STR noting a motorcycle accident resulting in lip sutures and complaints of dizziness and lightheadedness and the (2) the June 1990 STRs noting the Veteran was kicked in the head, resulting in a hematoma to the right temporal areas, a laceration of the left eyelid, and swelling of the right eyelid. The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion (e.g., etiology) as it is to find against the conclusion. 5. Send the Veteran's claims file to an appropriate examiner to provide an addendum opinion on the nature and severity of his service-connected right thumb disability. The examiner must review the entire claims file in conjunction with the opinion. The Veteran may be recalled for examination if deemed necessary. The examiner should state whether it is at least as likely as not that the Veteran's limitation of motion of the right index and little fingers was caused or aggravated by his service-connected right thumb disability. The examiner must also provide range of motion estimates for the point at which the Veteran's functional ability is limited due to pain and fatigue during flare ups. If the range of motion measurements are identical to the initial range of motion measurements, the examiner should explain how this is consistent with the statement that the Veteran's functional ability is additionally limited by pain and fatigue during a flare up. The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion (e.g., etiology) as it is to find against the conclusion. 6. THE AOJ MUST REVIEW THE CLAIMS FILE AND ENSURE THAT THE FOREGOING DEVELOPMENT ACTION HAS BEEN COMPLETED IN FULL. IF ANY DEVELOPMENT IS INCOMPLETE, APPROPRIATE CORRECTIVE ACTION MUST BE IMPLEMENTED. (CONTINUED ON THE NEXT PAGE) IF ANY REPORT DOES NOT INCLUDE ADEQUATE RESPONSES TO THE SPECIFIC OPINIONS REQUESTED, IT MUST BE RETURNED TO THE PROVIDING EXAMINER FOR CORRECTIVE ACTION. YVETTE R. WHITE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Moore, 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.