Citation Nr: 21014566 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 20-20 131 DATE: March 15, 2021 ORDER New and material evidence having been received, the appeal to reopen a claim of entitlement to service connection for a left knee condition, to include degenerative joint disease (DJD), is granted. New and material evidence having been received, the appeal to reopen a claim of entitlement to service connection for bilateral hand condition, to include limited use, is granted. New and material evidence having been received, the appeal to reopen a claim of entitlement to service connection for allergies is granted. New and material evidence not having been received, the appeal to reopen a claim of entitlement to service connection a left shoulder condition is denied. Entitlement to service connection for left knee condition, best characterized as DJD, is granted. REMANDED Entitlement to service connection for bilateral hand condition, to include limitation of use, is remanded. Entitlement to service connection for allergies is remanded. FINDINGS OF FACT 1. Most recently, a September 2017 rating decision, in pertinent part, denied a claim to reopen service connection for a left knee condition, no appeal was taken from that determination, and the decision is final. 2. Evidence received since the September 2017 rating decision relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for a left knee condition. 3. A March 2015 Board of Veterans’ Appeals (Board) decision dismissed the claim of service connection for bilateral hand disability. It became final as of the day of its issuance. 4. Evidence received since the March 2015 Board decision relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for bilateral hand condition. 5. A March 2018 Board decision dismissed the claim of service connection for allergies. It became final as of the day of its issuance. 6. Evidence received since the March 2018 Board decision relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for allergies. 7. Most recently, a September 2017 rating decision, in pertinent part, denied a claim to reopen service connection for a left shoulder condition, no appeal was taken from that determination, and the decision is final. 8. No evidence received since the September 2017 rating decision relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for left shoulder condition. 9. The probative evidence of record is at least in relative equipoise that the Veteran’s left knee condition, best characterized as DJD, is related to active military service. CONCLUSIONS OF LAW 1. Evidence received since the September 2017 rating decision is new and material; the criteria to reopen the claim of entitlement to service connection for the Veteran’s left knee condition, to include DJD, have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 2. Evidence received since the March 2015 Board decision is new and material; the criteria to reopen the claim of entitlement to service connection for the Veteran’s bilateral hand condition have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. Evidence received since the March 2018 Board decision is new and material; the criteria to reopen the claim of entitlement to service connection for allergies have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 4. Evidence received since the September 2017 rating decision is not new and material; the criteria to reopen the claim of entitlement to service connection for left shoulder condition have not been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 5. The criteria for entitlement to service connection for left knee condition have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Army on active duty from November 1983 to April 1990. These matters come before the Board on appeal from September 2017 and December 2018 rating decisions issued by a Regional Office (RO) of the Department of Veterans Affairs (VA). In March 2020, following issuance a January 2020 Statement of the Case, the Veteran filed a supplemental claim form, as to his appeal to reopen service connection for a left knee disability, requesting that the matter be processed under the Appeals Modernization Act. However, VA also received a VA Form 9, substantive appeal, dated several days earlier, in which the Veteran, in part, perfected an appeal as to this claim under the legacy system. As a claim may not be reviewed under multiple review lanes simultaneously, the Veteran’s claim was processed under the legacy system, consistent with his original selection. New and Material Evidence A claimant may reopen a finally adjudicated claim by submitting new and material evidence. 38 U.S.C. §§ 5108, 7103, 7104, 7105; 38 C.F.R. §§ 3.156, 20.1100. 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 sustaining the claim. 38 C.F.R. § 3.156(a). New and material evidence need not be received as to each previously unproven element of a claim in order to justify reopening thereof. Shade v. Shinseki, 24 Vet. App. 110, 120 (2010). 1. New and material evidence having been received, the claim of service connection for a left knee condition is reopened The Veteran’s claim of service connection for his left knee condition was previously denied in the August 2016 Board decision, as the evidence of record was against a finding that the Veteran’s current left knee disability was causally related to active service. In a September 2017 rating decision, the RO found no new and material evidence was submitted and did not reopen the Veteran’s claim. The Veteran did not appeal, and the decision became final. The Veteran provided lay statements in March 2020 noting the in-service onset of his left knee condition. The Veteran also reported the progressive worsening of symptoms since service. Additionally, the Veteran submitted a private medical opinion in March 2020. The Veteran’s private physician provided the medical opinion that it was at least as likely as not that the Veteran’s current left knee DJD was due to a progression of the Veteran’s in-service knee injury. This evidence relates to an unestablished fact, the existence of a causal connection between the Veteran’s current disabilities and an in-service injury, necessary to substantiate the Veteran’s claim. 38 C.F.R. § 3.156(a). The Board finds the low threshold for reopening a claim of service connection has been met. See Shade, 24 Vet. App. at 120. The Veteran’s claim of service connection for left knee condition is reopened. 2. New and material evidence having been received, the claim of service connection for bilateral hand condition, to include limited use, is reopened The Veteran’s claim of service connection for bilateral hand conditions involving limitation of usage was previously dismissed in the March 2015 Board decision. The Board found the Veteran’s limitation of usage of his hands was contemplated in the 30 percent disability rating assigned for painful scarring of the hands. The March 2015 Board decision is final. In a September 2017 rating decision, the RO found no new and material evidence of record, and decided not to reopen the Veteran’s claim. Although the RO considered a subsequent December 2018 rating decision, which in part, denied the claim to reopen service connection for bilateral hand condition as new and material evidence was not received, as the rating decision on appeal, the Board finds the September 2017 rating decision is the correct rating decision on appeal. Within the one-year period following notification of the September 2017 rating decision, VA received an October 2017 notice of disagreement from the Veteran, in part, as to this claim. Following issuance of a statement of the case in January 2020, a substantive appeal was timely received within 60 days thereafter in March 2020. As such, the September 2017 rating decision is the rating decision on appeal for this issue. The record contains the Veteran’s January 2018 VA primary care physician note, which reports the Veteran complained of cramping in both hands with pain between the joints. The Veteran’s VA medical treatment records from May 2019 and June 2019, note the Veteran continued to experience swelling and pain in both hands. The Veteran’s June 2019 VA treatment record reported a diagnosis of chronic pain in his hands. Here, the Veteran’s VA medical treatment records demonstrate the Veteran’s limitation of usage of the joints in his hands manifested as symptoms, to include swelling and joint pain. This evidence relates to an unestablished fact; the existence of a bilateral hand condition potentially independent of the Veteran’s painful scarring, necessary to substantiate the Veteran’s claim of service connection. 38 C.F.R. § 3.156(a). Accordingly, the Board finds that the low threshold for reopening a claim of service connection has been met. See Shade, 24 Vet. App. at 120. The Veteran’s claim of service connection for his bilateral hand condition, to include limited use, is reopened. 3. New and material evidence having been received, the claim of service connection for allergies is reopened A September 2010 rating decision, in pertinent part, denied service connection for allergies, as although there was a record of treatment in service for hay fever, no permanent residual or chronic disability subject to service connection was shown by the service medical records or demonstrated by evidence following service. The September 2010 rating decision also denied the claim because there was no current evidence of a disability as related to service. The Veteran provided a written statement in November 2016 requesting the withdrawal of the claim of service connection for allergies. The Board dismissed the Veteran’s claim of service connection in March 2018. The Veteran did not appeal, and the decision became final. The record contains the Veteran’s June 2020 VA medical treatment record, which provided a diagnosis of allergic rhinitis. The Veteran’s VA medical treatment record noted the Veteran was treated for allergic rhinitis with a steroid nasal spray and allergy medication. This evidence relates to an unestablished fact; the existence of a diagnosis of a current condition, necessary to substantiate the Veteran’s claim of service connection. Thus, the Board finds that the low threshold for reopening a claim of service connection has been met. See Shade, 24 Vet. App. at 120. The Veteran’s claim of service connection for allergies is reopened. 4. New and material evidence having not been received, the request to reopen the claim for entitlement to service connection for the Veteran’s left shoulder condition is denied The Veteran’s claim of service connection for his left shoulder condition was previously denied in the August 2016 Board decision, as the evidence of record was against a finding that the Veteran’s current left shoulder disability was secondary to the Veteran’s right shoulder condition or otherwise causally related to active service. The Board established the fact that the Veteran suffered a current left shoulder disability. The Board acknowledged the Veteran’s assertions that his shoulder symptoms started when lifting heavy items in service. Additionally, the Board noted the Veteran’s service treatment records were silent for any notation of a left shoulder issue. Moreover, the record contains the Veteran’s September 2015 VA examination, which noted the Veteran stated his shoulder disability had its onset after service, and provided the negative nexus opinion that the Veteran’s shoulder condition was likely the result of an acute sports injury post active service. In a September 2017 rating decision, the RO found no new and material evidence was submitted and did not reopen the Veteran’s claim. The Veteran did not appeal, and the decision became final. The Board recognizes there is new medical evidence of record as to the Veteran’s current disability. Additionally, the Board acknowledges the Veteran’s private medical record from June 2018, which noted the Veteran stated that his left shoulder pain started in active service working as a mechanic. However, as the evidence of record previously established the Veteran had a current left shoulder disability, and thus, evidence submitted since September 2017 reporting the severity of the Veteran’s current diagnosis is not new and material evidence necessary to establish the Veteran’s claim of service connection. While the Veteran’s private medical record noting the Veteran’s claim that his shoulder disability had its onset in service is evidence received since September 2017, the Veteran’s lay statements regarding in-service onset of his left shoulder disability were previously considered in the context of a prior claim. The Board notes that the Veteran’s lay statements are not considered material in that they do not provide unestablished facts needed to form a medical nexus between the Veteran’s in-service complaint and his current shoulder disability. Under these circumstances, the Board finds that new and material evidence to reopen the claim of entitlement to service connection for the Veteran’s left shoulder disability has not been received. The evidence discussed above, does not reach the threshold to reopen the claim for service connection. See Shade, 24 Vet. App. at 120. As such, the appeal must be denied. As the Veteran has not fulfilled the threshold burden of submitting new and material evidence to reopen the finally disallowed claim, the benefit-of-the-doubt doctrine is not applicable. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be warranted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that 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) in-service incurrence or aggravation of a disease or injury; 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). Additionally, certain chronic diseases, including arthritis, may be presumed to have been incurred during service if the disorder becomes manifest to a compensable degree within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). Alternatively, for chronic diseases shown in service, the third element of service connection may be established through demonstrating chronicity or continuity of symptomatology in accordance with 38 C.F.R. § 3.303(b). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 5. Entitlement to service connection for left knee condition, to include DJD As the Board has reopened the claim service connection for a left knee disability based on new and material evidence, and although Agency of Original Jurisdiction has not adjudicated the reopened claim on the merits in the first instance, in light of grant of the claim in full, the Veteran is not prejudiced by the Board’s consideration of this issue in the first instance. Bernard v. Brown, 4 Vet. App. 384 (1993). The Veteran contends his left knee DJD is related to a knee injury he incurred during active duty service. The Veteran’s VA and private medical records established the Veteran suffers from a left knee condition, including a diagnosis of DJD. Thus, the Veteran’s left knee disability is best characterized as DJD. Additionally, the Board recognizes the Veteran’s service treatment records from November 1988 reported the Veteran injured his left knee during physical training while on active service. Here, the issue of the Veteran’s claim to service connection for his left knee turns on whether there is a nexus between the Veteran’s in-service left knee strain and his current disability. The Board finds the evidence of record supports such a finding. In September 2015, the Veteran underwent a VA examination. The VA examiner noted the Veteran’s in-service left knee injury and provided the medical opinion that it was less likely as not that the Veteran’s current left knee disability was causally related to active service. The VA examiner stated the Veteran’s left knee osteoarthritis was more likely due to the natural aging process, as the Veteran’s right knee arthritis displayed similar degenerative patterns. The Veteran submitted a medical opinion from a private physician in March 2020. Following a review of the Veteran’s service treatment records and civilian medical records, the private physician opined that it was at least as likely as not that the Veteran’s current left knee DJD is due to a progression or continuation of the Veteran’s in-service injury. The physician noted the Veteran’s September 2015 X-ray assessment revealed mild degenerative changes. The private physician also noted the Veteran’s credible March 2020 lay statement that his left knee progressively worsened since service. The examiner noted the Veteran’s complaints of popping, instability, and pain while descending stairs, running, squatting, and jumping. The private examiner cited to medical literature noting articular cartilage trauma in weight-bearing joints will often fail to heal on their own, and may be associated with pain, loss of function and long-term complications such as osteoarthritis. Additionally, the Board acknowledges the Veteran as a lay person is competent to provide opinions on certain subjective medical issues and of observable symptomatology, including his history and continuity of left knee pain. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Although the September 2015 examination provided a negative nexus opinion regarding whether the Veteran’s left knee condition was related to the Veteran’s in-service knee injury, the Board finds that, given the Veteran’s competent lay statements and the Veteran’s March 2020 private medical opinion establishing the connection of the Veteran’s left knee DJD and his in-service knee trauma, the evidence is at least in relative equipoise on this matter. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, by law the Board must resolve all reasonable doubt in favor of the Veteran. See 38 U.S.C. §§ 1154(b); 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Thus, the benefit of the doubt must be resolved in favor of the Veteran and entitlement to service connection for the Veteran’s left knee disability is warranted.   REASONS FOR REMAND 1. Entitlement to service connection for bilateral hand condition, to include limitation of use, is remanded. As the Veteran’s bilateral hand condition involving the limited function of the joints of the hand was previously considered as symptoms of his painful hand scarring, the Board finds that the Veteran has not been afforded a VA examination for the claim on appeal. In this regard, as discussed above, the Veteran’s VA medical treatment records from May 2019 and June 2019, noted the Veteran experienced swelling and pain in both hands. The Veteran’s June 2019 VA treatment record reported a diagnosis of chronic pain in his hands. Further, the Veteran’s service treatment records and the Veteran’s lay testimony noted his limitation in the use of his hands started while in service due to the wrenches he used as a mechanic. Accordingly, remand is needed to determine if the Veteran’s current bilateral condition, manifested as symptoms of limitation of use due to swelling and joint pain is related to his active service. Additionally, a determination is needed as to the relationship between the Veteran’s service-connected painful scarring and the reported symptoms of limitation of dexterity and joint pain. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). 2. Entitlement to service connection for allergies is remanded. The Veteran contends that he suffers from allergies related to active duty military service. The Veteran’s VA medical treatment record from June 2020 provided the Veteran a diagnosis of allergic rhinitis. Notably, the Veteran’s service treatment records show the Veteran received treatment for upper respiratory conditions, hay fever, rhinitis and allergies, manifest as symptoms of congestion, nasal draining, and irritated eyes. Thus, remand is required to provide the Veteran a VA examination to address the Veteran’s current allergic rhinitis as it relates to the Veteran’s recorded in-service symptoms. Id. The matters are REMANDED for the following actions: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the etiology and severity of a bilateral hand condition, to include limitation of dexterity and usage. The examination may be conducted via telehealth or similar service during the social distancing restrictions of the COVID-19 pandemic. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. If a diagnosis cannot be provided, but the Veteran’s condition manifests in symptoms that cause functional impairment, then the examiner should consider them a “disability” for the purpose of providing the requested opinions below. Following a review of the entire record, including all available lay statements, private and VA medical treatment records, the examiner should opine as to whether it is at least as likely as not (50 percent probability or more) the Veteran has a bilateral hand condition which had its onset in, or is otherwise related to, the Veteran’s active service. Also, if a bilateral hand disability is identified, is the disability at least as likely as not proximately due to service-connected right hand scarring or left hand scarring, or is the disability at least as likely as not aggravated, i.e., worsened beyond its natural progression, by service-connected right hand scarring or left hand scarring? The examiner must provide a comprehensive report including a clearly stated rationale for any opinions offered and conclusions reached, citing the objective medical findings leading to the conclusions, and must not be based solely on the lack of records. In this regard, the Board emphasizes that the Veteran is competent to report his symptoms and history, and such statements by the Veteran regarding symptomatology and medical history must be specifically acknowledged and considered in formulating any opinions concerning the onset and severity of his disability. If such reports are rejected by the examiner, a reason for doing so must be provided. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the etiology and severity of the Veteran’s allergies. The examination may be conducted via telehealth or similar service during the social distancing restrictions of the COVID-19 pandemic. Following a review of the entire record, including all available lay statements, private and VA medical treatment records, the examiner should opine as to whether it is at least as likely as not (50 percent probability or more) the Veteran’s allergies had its onset in, or is otherwise related to, the Veteran’s active service. The examiner must provide a comprehensive report including a clearly stated rationale for any opinions offered and conclusions reached, citing the objective medical findings leading to the conclusions, and must not be based solely on the lack of records. In this regard, the Board emphasizes that the Veteran is competent to report his symptoms and history, and such statements by the Veteran regarding symptomatology and medical history must be specifically acknowledged and considered in formulating any opinions concerning the onset and severity of his illness. If such reports are rejected by the examiner, a reason for doing so must be provided. 3. After undertaking any other development deemed appropriate, readjudicate the issues on appeal. If any benefit sought is not granted, furnish the Veteran and his representative with a supplemental statement of the case and afford them the appropriate opportunity to respond before the record is returned to the Board for further review. M. ESPINOZA Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A.V. Bona, 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.