Citation Nr: 21077533 Decision Date: 12/30/21 Archive Date: 12/30/21 DOCKET NO. 16-35 628A DATE: December 30, 2021 ORDER New and material evidence has been received to reopen the claim of entitlement to service connection for a neck disability. New and material evidence has been received to reopen the claim of entitlement to service connection for a right knee disability. Entitlement to service connection for a left hand disability is denied. Entitlement to service connection for a right hand disability is denied. REMANDED Entitlement to service connection for hypertension is remanded. Entitlement to service connection for erectile dysfunction (ED) is remanded. Entitlement to service connection for a neck disability is remanded. Entitlement to service connection for a left shoulder disability is remanded. Entitlement to service connection for a right hip disability is remanded. Entitlement to service connection for a right knee disability is remanded. FINDINGS OF FACT 1. A November 1962 Board of Veterans' Appeals (Board) decision denied service connection for a neck disability (claimed as spina bifida). A March 2011 Board decision declined to reopen the claim and also denied service connection for a right knee disability (claimed as a bilateral knee disability). The Veteran did not request reconsideration of those decisions, nor did he timely appeal them to the United States Court of Appeals for Veterans Claims. 2. Evidence received since the most recent March 2011 Board decision is neither cumulative nor redundant of evidence already of record and raises a reasonable possibility of substantiating the claims of entitlement to service connection for neck and right knee disabilities. 3. The Veteran does not have a current left hand disability. 4. The Veteran does not have a current right hand disability. CONCLUSIONS OF LAW 1. The criteria to reopen the claim of entitlement to service connection for a neck disability are met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. The criteria to reopen the claim of entitlement to service connection for a right knee disability are met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for entitlement to service connection for a left hand disability are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for entitlement to service connection for a right hand disability are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from March 1961 to November 1961. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the claims for further development in March 2020 and November 2020. Notably, during the pendency of this appeal, a September 2021 rating decision awarded service connection for diabetes mellitus type II (diabetes). This issue is accordingly not in appellate status. As an initial matter, the Board finds it more appropriate to recharacterize the Veteran's claim of entitlement to service connection for osteoarthritis (including of the bilateral hands, right knee, right hip, left shoulder, and neck), as these are separate and distinct disabilities. Therefore, to reflect the evidence of record most accurately, the Veteran's claim has been bifurcated into six separate claims, as reflected on the title page. See Locklear v. Shinseki, 24 Vet. App. 311, 315 (2011) (bifurcation of a claim generally is within VA's discretion); Tyrues v. Shinseki, 23 Vet. App. 166, 178-79 (2009), aff'd, 631 F.3d 1380 (Fed. Cir. 2011) (VA is free to dismember a claim and adjudicate it in separate pieces). 1. New and material evidence has been received to reopen a previously denied claim of entitlement to service connection for a neck disability. 2. New and material evidence has been received to reopen a previously denied claim of entitlement to service connection for a right knee disability. 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. There is a low threshold to raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110 (2010); Evans v. Brown, 9 Vet. App. 273 (1996). Additionally, the United States Court of Appeals for the Federal Circuit has noted 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 a claim. Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998). The Court has also held that the law should be interpreted to enable reopening of a claim, rather than to preclude it. See Shade, 24 Vet. App.110. A November 1962 Board of Veterans' Appeals (Board) decision denied service connection for a neck disability (claimed as spina bifida). Subsequently, a March 2011 Board decision declined to reopen the claim and also denied service connection for a right knee disability (claimed as a bilateral knee disability). The Veteran did not request reconsideration of those decisions, nor did he timely appeal them to the United States Court of Appeals for Veterans Claims. Thus, the November 1962 and March 2011 decisions became final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.1103. Evidence received since the most recent March 2011 Board decision includes VA treatment records and August 2021 examination reports. The Board finds that this evidence is sufficient to reopen the previously denied claims. The foregoing evidence is not cumulative or redundant of the evidence previously of record and is of such significance that it raises a reasonable possibility of substantiating the claims for service connection when considered with evidence previously of record. Therefore, this evidence is new and material, and reopening of the claims of entitlement to service connection for neck and right knee disabilities is in order. 38 U.S.C. § 5108; 38 C.F.R. § 3.156; Shade v. Shinseki, 24 Vet. App. 110 (2010). 3. Entitlement to service connection for a left hand disability is denied. 4. Entitlement to service connection for a right hand disability is denied. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires evidence of (1) a current disability; (2) an 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. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Upon review of the evidence in the record, the Board finds that service connection for a bilateral hand disability is not warranted because a preponderance of the competent and credible evidence indicates that the Veteran has not been diagnosed with a hand condition at any point just prior to or during the appeal period beginning in July 2011. In this regard, the August 2021 VA examiner, who specifically considered the Veteran's reported history, determined that the Veteran did not have a current diagnosis of a left or right hand disability based on a physical examination, a review of his relevant medical history, as well as the totality of the pertinent evidence of record. Moreover, an August 2021 imaging report shows radiologically negative examinations of hands bilaterally. Furthermore, the evidence does not indicate that the Veteran's bilateral hand pain reaches the level of a functional impairment of earning capacity. Notably, the August 2021 VA examiner indicated that the Veteran's hands did not impact his ability to perform any type of occupational task and noted no range of motion loss due to pain or functional impairment. Additionally, the Veteran denied flare-ups, and any functional loss or impairment of his hands. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). As such, despite the Veteran complaints of hand pain, no associated functional impairment has been demonstrated in the competent and credible evidence of record. In this regard, while the Veteran is competent to report his observations of symptoms such as pain, he is not competent to diagnosis an underlying bilateral hand disability, as the determination of the presence of such a disability requires expertise he does not possess. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). To the extent the April 2020 VA examiner provided a negative opinion regarding service connection for bilateral hand osteoarthritis, the Board notes that the examiner did not conduct an in-person examination or diagnose a hand condition. Therefore, the Board affords more probative value to the August 2021 VA examiner's finding of no diagnosis or functional impairment of the hands, which was rendered after thorough a physical examination and x-ray findings and reiterates that there is no evidence of a currently diagnosed hand disability. Accordingly, the preponderance of the evidence is against the Veteran's claims of entitlement to service connection for a left and right hand disability based on lack of a current disability. Thus, as the first element of service connection is not met at any point just prior to or during the appeal period, the claim fails on this basis alone. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (in the absence of proof of present disability there can be no successful claim); see also Degmetich v. Brown, 104 F.3d 1328 (1997) (also interpreting 38 U.S.C. § 1131 as requiring the existence of a present disability for VA compensation purposes). REASONS FOR REMAND 1. Entitlement to service connection for hypertension is remanded. 2. Entitlement to service connection for ED is remanded. Although the Board regrets the additional delay, a remand is necessary for additional development. The August 2021 VA examiner noted that hypertension was typically caused by obesity and a high sodium diet, whereas ED was typically caused by obesity and hypertension. While this opinion establishes that the Veteran's hypertension and ED are related to his weight gain or obesity, it does not address the possibility of obesity as an intermediate step between his service-connected disabilities and his claimed conditions. See VAOPGCPREC 1-2017. The Board acknowledges that although the August 2021 examiner rendered a favorable opinion on secondary service connection, the provided rationale does not support his conclusion. Additionally, the September 2021 VA examiner indicated that weight gain could occur with some of the Veteran's medications but noted it did not preclude exercise, and the Board finds this speculative opinion insufficient. The examiner also opined that the Veteran's ED was not secondary to his cognitive disorder based on the fact that the diagnosis of ED preceded his cognitive disorder. However, to establish causation, there is no temporal requirement that the primary condition be service-connected, or even diagnosed, at the time the secondary condition is incurred. See Frost v. Shulkin, 29 Vet. App. 131 (2017). Accordingly, addendum opinions are necessary on remand. 3. Entitlement to service connection for a neck disability is remanded. 4. Entitlement to service connection for a left shoulder disability is remanded. 5. Entitlement to service connection for a right hip disability is remanded. 6. Entitlement to service connection for a right knee disability is remanded. Remand is warranted, as the August 2021 VA examiner's opinions are inadequate. Specifically, the examiner opined negatively as to a relationship between the Veteran's neck, left shoulder, right hip, and right knee disabilities and service, based primarily on the lack of "origin and chronicity" documented in the evidence with no other adequate supporting rationale, and the Board finds these opinions are substantially similar to the April 2020 VA opinions, which were determined to be inadequate in the prior remand. Additionally, while the August 2021 examiner found that the service treatment records (STRs) noted a knee condition, he did not address the reports of leg cramps, joint pain, and a neck condition that were also documented in the STRs. The Board notes that the February 2019 and April 2020 private opinions by Dr. Thomas are also not adequate, as they were rendered without a review of the claims file and are not supported by rationale. Moreover, the February 2019 opinion is speculative ("probably related"), whereas the April 2020 opinion does not clearly identify the disabilities attributed to service. Thus, on remand, addendum opinions are needed, and any outstanding treatment records should also be secured. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. With any necessary assistance from the Veteran, obtain any outstanding relevant private treatment records. 3. Then obtain an addendum opinion from an examiner other than the August and September 2021 VA examiners addressing the etiology of the Veteran's hypertension and ED. The entire claims file should be made available to the examiner. No additional examination is necessary unless the examiner determines otherwise. After a review of the claims file, the examiner is requested to address the following: (a) Is it at least as likely as not (50 percent probability or greater) that the Veteran's service-connected disabilities, to include cognitive disorder, diabetes, lumbar spine disability, and/or any medications used to treat the same, caused him to become obese/gain weight? (1) If so, is it at least as likely as not that obesity/weight gain was a "substantial factor" in causing his hypertension and/or ED? (2) If so, is it at least as likely as not that hypertension and/or ED would not have occurred but for the obesity/weight gain caused by the service-connected disabilities and/or any medications used to treat the same? In addressing these questions, please discuss the February 2019 private treatment record noting obesity related to physical inactivity due to the Veteran's lumbar spine disability ("He remains as active as possible to reduce his obesity but given his LBP and other conditions he is struggling.") (b) If the answer to question (a) is no, then is it at least as likely as not (50 percent probability or greater) that hypertension and/or ED: (1) are proximately due to service-connected cognitive disorder, diabetes, and/or any medications used to treat the same; or (2) have been aggravated (worsened beyond natural progression) by service-connected cognitive disorder, diabetes, and/or any medications used to treat the same. Please render separate opinions for each condition. In answering part (b), please note there is no temporal requirement that the primary condition (cognitive disorder/diabetes) be service-connected, or even diagnosed, at the time the secondary condition (hypertension/ED) is incurred. If hypertension is attributed to a service-connected disability, please also opine as to whether it is at least as likely as not (50 percent probability or greater) that ED: (c) is proximately due to hypertension; or (d) has been aggravated (worsened beyond natural progression) by hypertension. A complete rationale should be given for all opinions and conclusions expressed. If unable to opine without resorting to speculation, please provide a basis for that conclusion. 4. Then obtain an addendum opinion from an examiner other than the April 2020 and August 2021 VA examiners addressing the etiology of the Veteran's neck, left shoulder, right knee, and right hip disabilities. The entire claims file should be made available to the examiner. No additional examination is necessary unless the examiner determines otherwise. (Continued on the next page) Following a review of the claims file, the examiner should opine as to whether it is as least as likely as not (50 percent or greater probability) that the Veteran's diagnosed (1) neck degenerative arthritis, (2) left shoulder osteoarthritis, (3) right knee strain, and (4) right hip osteoarthritis (see August 2021 VA examination reports) had their onset in or are otherwise related to service to include as a result of the documented C-1 spina bifida and report of swollen or painful joints, cramps in legs, and trick or locked knee therein. See September 1961 Report of Medical Examination and History. Please render separate opinions for each condition. Please note that the lack of contemporaneous medical records is not dispositive and may not be used as a basis for a negative opinion. A complete rationale should be given for all opinions and conclusions expressed. If unable to opine without speculation, please provide a basis for that conclusion. Richard Kettler Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S.S. Mahoney 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.