Citation Nr: 21012799 Decision Date: 03/05/21 Archive Date: 03/05/21 DOCKET NO. 17-53 325 DATE: March 5, 2021 ORDER Entitlement to service connection for a right elbow disability is denied. New and material evidence has not been received and the claim for service connection for residuals of a broken right wrist is not reopened. New and material evidence has been received and the claim for service connection for a back disability is reopened. New and material evidence has been received and the claim for service connection for an acquired psychiatric disorder is reopened. REMANDED Entitlement to service connection for a back disability is remanded. Entitlement to service connection for an acquired psychiatric disorder is remanded. FINDINGS OF FACT 1. The Veteran does not have a current right elbow disability. 2. In a September 2008 rating decision, the Department of Veterans Affairs (VA) Regional Office (RO) denied service connection for broken right wrist, back condition, bipolar disorder, depression, and posttraumatic stress disorder (PTSD); the Veteran did not appeal the decision and new and material evidence was not received within the one-year appeal period. 3. Evidence associated with the record since the September 2008 decision does not relate to unestablished facts or raise a reasonable possibility of substantiating the claim of entitlement to service connection for residuals of a broken right wrist. 4. Evidence associated with the record since the September 2008 decision relates to unestablished facts and raises a reasonable possibility of substantiating the claims of entitlement to service connection for a back disability and an acquired psychiatric disorder. CONCLUSIONS OF LAW 1. The criteria for service connection for a right elbow disability have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for reopening the previously denied claim for service connection for broken right wrist have not been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a). 3. The criteria for reopening the previously denied claim for service connection for a back disability have been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a). 4. The criteria for reopening the previously denied claim for service connection for an acquired psychiatric disorder have been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1975 to July 1979. He also served in the United States Army Reserves. This matter is before the Board of Veterans’ Appeals (Board) on appeal of a December 2012 rating decision by a VA RO. In September 2020, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. Service Connection for Right Elbow Disability Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called “nexus” requirement. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran asserts he has a right elbow disability related to service. He testified that in basic training he hurt his elbow throwing a grenade in a training exercise. He sought treatment afterwards and was told that he hurt a tendon on the inside of the elbow. The service providers wrapped the elbow in an ACE bandage. Since that time, he experiences cramps and the elbow will go numb. It is worse in winter. The service treatment records do not record any complaints, treatment, or diagnosis of a right elbow injury, including an injury to an elbow tendon. The Veteran’s February 1979 separation examination report reflects his right elbow was normal and the history does not reflect any history or complains by the Veteran regarding his right elbow. There are other injuries reported such as a fracture of the Veteran’s right 5th (little finger) metacarpal bone, but nothing about the right elbow. Since service, VA and private medical records do not reflect any complaints, diagnosis, history, or treatment of the right elbow including for tendinitis. There is one mention of right elbow aching and numbness in September 2010 Social Security Administration records. The Veteran has psoriasis including skin lesions on his elbows. The Board, however, understands the Veteran is not claiming any manifestation of his psoriasis. Instead, he is asserting he has a musculoskeletal disability such as tendinitis that began with the hand grenade training incident. Thus, there is no evidence of a diagnosed right elbow disability such as X-ray findings demonstrating degenerative changes to the right elbow or tendinitis. As there is no competent evidence of a current chronic right elbow disability, there can be no valid claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The evidence is also against a finding of a disability at any point during the claims period or shortly prior to the claim being filed. See McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). While a symptom such as pain can constitute a disability in certain circumstances, the Veteran’s testimony of cramping and numbness does not constitute a disability as it does not result in any functional, especially occupational, impairment. See Saunders v. Wilkie, 886 F.3d 1356, 1367-68 (Fed. Cir. 2018). The Board has considered the Veteran’s statements, to include his assertions that he has a right elbow disability related to service. As the Veteran is not shown to have medical education or experience, he is a lay person and is competent to report (1) symptoms that are observable to a layperson, e.g., cramping or numbness; (2) symptoms at the time supporting a later diagnosis by a medical professional; or (3) a contemporaneous medical diagnosis. See Davidson v. Shinseki, 581 F.3d 1313 (2009). The Veteran is not competent to independently render a medical diagnosis or provide the specific etiology of a condition as these are medically complex issues. Thus, his lay assertions do not constitute evidence upon which service connection can be granted. Given the above, the preponderance of the evidence is against a claim for service connection for a right elbow disability and that claim is denied. Claims to Reopen If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108. 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. 38 C.F.R. § 3.156(a). The credibility of the evidence is presumed for purposes of reopening the claim. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for reopening is low. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In a September 2008 decision, the RO denied the Veteran’s claims for service connection for broken right wrist, back condition, bipolar disorder, depression, and PTSD. The RO found that there was no evidence of a right wrist fracture, the Veteran’s December 1976 back strain did not result in a chronic disability, and there was no current mental health disorder that occurred in or was caused by service. The Veteran was provided notice of this decision and his appellate rights but did not appeal the decision or submit new and material evidence within one year of the decision. Therefore, the decision is final. See 38 C.F.R. §§ 3.156, 20.302, 20.1103 (2008). 1. Broken Right Wrist At the time of the last final denial, the Veteran asserted he broke his right wrist during service. See April 2007 VA Form 21-526. An August 2008 VA examination noted that X-ray showed arthritis of the wrist but no evidence of acute fracture. Service records did not show a break or fracture of the right wrist. Since the September 2008 decision, the Veteran continues to contend that he broke his right wrist during service. These statements are cumulative and redundant of his assertions made in connection with the claim denied in September 2008. The Veteran has not provided additional records showing a break or fracture of the right wrist, as opposed to the already service-connected fractures to the 1st and 5th metacarpals of the right hand. As the new, non-cumulative evidence does not show the Veteran suffered from an in-service wrist injury, the reason for the previous denial, it does not raise a reasonable possibility of substantiating the claim and the claim cannot be reopened. 2. Back Disability and Acquired Psychiatric Disorder The evidence received since the September 2008 rating decision includes evidence that is both new and material to these claims. See 38 C.F.R. § 3.156. Regarding the back disability, medical records received after September 2008 demonstrate the Veteran was diagnosed with degenerative joint disease at L5-S1 in October 2006. The Veteran testified his back injury is due to falling from a five-ton truck during service. Service treatment records do document the fall, although at the time he was only treated for headaches and a stiff neck. The Veteran testified, however, that he landed on both his tailbone and cervical spine area. This new evidence addresses the reason for the previous denial; that is, a nexus to service, and raises a reasonable possibility of substantiating the claim. The credibility of this evidence is presumed for purposes of reopening the claim. See Justus, 3 Vet. App. at 513. Accordingly, the claim is reopened and will be considered on the merits. Regarding the acquired psychiatric disorder, in a statement received by VA in November 2010 the Veteran noted two in-service incidents of unwelcomed sexual advances. The Veteran stated that this stirred up painful memories and other symptoms because he had unfortunately been sexually molested as a child. At the time of the prior claim, the Veteran had not provided this type of information regarding in-service events. This new evidence addresses the reason for the previous denial; that is, an in-service event that could be responsible for a current psychiatric disorder, and raises a reasonable possibility of substantiating the claim. The credibility of this evidence is presumed for purposes of reopening the claim. See Justus, 3 Vet. App. at 513. Accordingly, the claim is reopened and will be considered on the merits. REASONS FOR REMAND Although the Board has reopened the claims of service connection for a back disability and an acquired psychiatric disorder, further development is needed before reaching a decision on the merits of the reopened claims. For both claims, the Veteran has not received a VA examination to determine whether the claimed disabilities are related to incidents noted in the service treatment records or service generally. Such should be accomplished on remand. Attempts to obtain records of in-service psychiatric treatment and evaluation should also be undertaken. The Veteran testified that his company commander ordered him to undergo a psychiatric evaluation. In addition, while seeking treatment in 1982 after service, the Veteran indicated he received outpatient treatment in 1977 at Ft. Bragg. His service treatment records, while they appear to be complete as far as any medical conditions such as musculoskeletal problems, show no indication the Veteran had psychiatric evaluation or treatment. Remand is necessary to obtain any records that were kept separate and apart from his service treatment records. The matters are REMANDED for the following action: 1. Ask the Veteran to identify all outstanding treatment records relevant to his claims. All identified VA records should be added to the claims file. All other properly identified records should be obtained if the necessary authorization to obtain the records is provided by the Veteran. If any records are not available, or the Veteran identifies sources of treatment but does not provide authorization to obtain records, appropriate action should be taken (see 38 C.F.R. § 3.159(c)-(e)), to include notifying the Veteran of the unavailability of the records. 2. Ensure the Veteran has been provided proper notice regarding substantiating a claim for service connection for PTSD based on in-service personal assault. 3. Request from the appropriate source(s): (a) out-patient records pertaining to mental health treatment for the Veteran while he was stationed at Ft. Bragg, and (b) service department psychiatry/mental health records. If records cannot be obtained, the Veteran should be notified of the unavailability of the records. 4. After records development is completed, schedule the Veteran for a VA examination to determine whether it is at least as likely as not (50 percent probability or greater) that any current disability of the back onset during service or is otherwise related to an in-service injury, event, or disease, to include a fall from a five ton truck in January 1977. A rationale for all opinions expressed is requested as adjudicators are precluded from making any medical findings. 5. After records development is completed, schedule the Veteran for a VA examination to determine whether it is at least as likely as not (50 percent probability or greater) that any current acquired psychiatric disorder onset during service or is otherwise related to an in-service injury, event, or disease. The Veteran’s November 2010 statement about two in-service incidents of unwelcomed sexual advances should be reviewed. If PTSD or a trauma- or stressor-related disorder is diagnosed, the examiner should list all traumatic events contributing to that diagnosis. The Veteran has been diagnosed with bipolar disorder and polysubstance dependence. See, for example, November 24, 2015 VA psychiatry note. If these conditions are not diagnosed at the examination, the examiner should address whether the diagnoses pertaining to these disorders were in error or whether the conditions have now resolved. It is noted that the Veteran was hospitalized at VA in July 1982, a few years after his separation from the Army. These records should be considered. A rationale for all opinions expressed is requested as adjudicators are precluded from making any medical findings. Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Russell P. Veldenz, 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.