Citation Nr: 21024627 Decision Date: 04/23/21 Archive Date: 04/23/21 DOCKET NO. 15-22 699 DATE: April 23, 2021 ORDER The petition to reopen the previously denied claim of entitlement to service connection for a bilateral shoulder disorder is denied. The petition to reopen the previously denied claim of entitlement to service connection for a bilateral knee disorder is denied. The petition to reopen the previously denied claim of entitlement to service connection for a bilateral wrist disorder is denied. The petition to reopen the claim of entitlement to service connection for a bilateral hip disorder is denied. Entitlement to service connection for right elbow arthritis is denied. Entitlement to service connection for fibromyalgia is denied. Entitlement to service connection for a heart disorder is denied. Entitlement to service connection for depressive disorder as secondary to service-connected bilateral club foot with arthritis and pes planus is granted. REMANDED Entitlement to service connection for a lumbar spine disorder is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. A January 2003 rating decision last denied service connection for a bilateral shoulder and a bilateral knee disorder and denied service connection for a bilateral wrist disorder and a bilateral hip disorder; the Veteran did not appeal. 2. Additional evidence received since the January 2003 rating decision is new to the record, but does not relate to an unestablished fact necessary to substantiate the merits of the claims, nor does it raise a reasonable possibility of substantiating the claims of service connection for a bilateral shoulder disorder, a bilateral knee disorder, a bilateral wrist disorder and a bilateral hip disorder. 3. Right elbow arthritis has not been shown to have had its onset in service or within one year of service, nor is such disability shown to be related to active military service. 4. Fibromyalgia is not shown to be causally or etiologically related to an in-service event, injury or disease. 5. A heart disorder has not been shown to have had its onset in service or within one year of service, nor is such disability shown to be related to active military service. 6. The Veteran’s depressive disorder is aggravated beyond its natural progression by his service-connected bilateral club foot with arthritis and pes planus. CONCLUSIONS OF LAW 1. As new and material evidence has not been received since the January 2003 rating decision, the criteria for reopening the claim for service connection for a bilateral shoulder disorder are not met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. As new and material evidence has not been received since the January 2003 rating decision, the criteria for reopening the claim for service connection for a bilateral knee disorder are not met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. As new and material evidence has not been received since the January 2003 rating decision, the criteria for reopening the claim for service connection for a bilateral wrist disorder are not met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 4. As new and material evidence has not been received since the January 2003 rating decision, the criteria for reopening the claim for service connection for a bilateral hip disorder are not met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 5. The criteria for service connection for right elbow arthritis have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 6. The criteria for entitlement to service connection for fibromyalgia have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F. R. § 3.303. 7. The criteria for service connection for a heart disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 8. The criteria for service connection for depressive disorder as secondary to service-connected bilateral club foot with arthritis and pes planus have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Navy from August 1973 to July 1975. This case comes before the Board of Veterans’ Appeals (Board) on appeal from January 2012 and January 2013 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In a May 2018 written statement, the Veteran confirmed that he did not want a hearing before the Board. The Board previously remanded the case for further development in October 2018. The case has since been returned to the Board for appellate review. The Board acknowledges that additional evidence not subject to automatic waiver was submitted following the RO’s July 2020 Supplemental Statement of the Case, which has not been reviewed by the Agency of Original Jurisdiction (AOJ). However, in February 2021 the Veteran’s representative provided a written waiver of AOJ consideration of additional evidence. Accordingly, the Board will consider the newly submitted evidence in the first instance. New and Material Evidence The Veteran is seeking service connection for a bilateral shoulder disorder, a bilateral knee disorder, a bilateral wrist disorder and a bilateral hip disorder. As will be discussed below, these claims were previously denied. The preliminary question of whether a previously denied claim should be reopened is a jurisdictional matter that must be addressed before the Board may consider the underlying claim on its merits. Barnett v. Brown, 8 Vet. App. 1, 4 (1995), aff’d, Barnett v. Brown, 83 F.3d 130 (Fed. Cir. 1996). The Board must therefore proceed to analyze whether new and material evidence has been submitted since the prior final decisions. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. New evidence is defined as 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). 1. Bilateral Shoulder Disorder, Bilateral Knee Disorder, Bilateral Wrist Disorder and Bilateral Hip Disorder The claims for bilateral shoulder and bilateral wrist disorders were adjudicated in a July 1991 rating decision. The Veteran did not appeal this decision or submit new or material evidence within one year of that decision and it became final. Thereafter, the shoulder, knee, wrist and hip issues were addressed as part of a multiple joint arthritis claim and were denied in a January 2003 rating decision. The January 2003 denial was based on a finding that degenerative arthritis of hips, knees, wrists and right shoulder were neither occurred in, nor were caused by service. At that time, the evidence consisted of service treatment records and post-service medical treatment reports. The Veteran did not appeal this decision or submit new and material evidence within one year of that decision, and it became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(a), (b). Evidence added to the record since the January 2003 denial consists of additional VA treatment records. The treatment records, while new, are cumulative and redundant in nature of the evidence was in existence at the time of the January 2003 denial. Indeed, absent evidence showing that any disorder of the shoulders, knees, wrists, and hips are related to his active military service, the newly received evidence does not raise a reasonable possibility of substantiating any of the claims. The claims are not reopened. Service Connection Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service.  Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  Service connection for certain diseases, as noted under 38 C.F.R. § 3.309, may also be established on a presumptive basis by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service.  A disability may also be service connected on a secondary basis if it is proximately due to or the result of a service-connected disease or injury; or, if it is aggravated beyond its natural progress by a service-connected disease or injury.   2. Right Elbow Arthritis, Fibromyalgia and Heart Disorder The Veteran’s service treatment records are negative for any complaints, diagnosis, or treatment for the right elbow, fibromyalgia or the heart. In a March 2003 VA treatment record, the Veteran was seen with complaints of chronic joint pain with the impression of joint pain and possible fibromyalgia. In a February 2002 VA treatment record, it was noted that the Veteran had a myocardial infarction in 1990 and again in 1993. Significantly, with regard to an in-service event, a review of the Veteran’s service treatment records does not reveal that he was treated for or diagnosed with a right elbow condition, fibromyalgia or any widespread pain disorder, or a heart condition during his military service. Moreover, there is no evidence indicating that right elbow arthritis, fibromyalgia or a heart disorder is related to any aspect of the Veteran’s active service. As such, the Board finds there is no evidence to support a finding of an in-service event, disease, or injury and the claims for service connection for right elbow arthritis, fibromyalgia and a heart disorder are denied. 3. Depression The Veteran is claiming service connection for a mental disorder, to include as secondary to his service-connected bilateral club foot. The Board finds that the evidence of record supports a grant of service connection for a mental health disorder. First, there is evidence of a current disability. The Veteran has been diagnosed with depressive disorder in a March 2016 private treatment record. Second, there is evidence that the current disability was caused by or aggravated by the Veteran’s service-connected bilateral club foot. In that regard, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s left knee disability is related to service. The law is clear; pursuant to the “benefit-of-the-doubt” rule, where there is “an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter,” the Veteran shall prevail upon the issue. Although there is evidence against the claim, a March 2016 private nexus statement opines that the Veteran’s unspecified depressive disorder more likely than not began in military service, has continued uninterrupted to the present and is aggravated by his service connected bilateral club foot with arthritis and pes planus. In formulating her opinion, the March 2016 private doctors reviewed the Veteran’s medical records, examined the Veteran, and relied on her own expertise, knowledge, and training. In addition, the doctor supported her opinion with a clear and thorough rationale. Thus, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s depressive disorder is related to his military service. REASONS FOR REMAND 1. Entitlement to a lumbar spine disorder is remanded. In a July 2014 VA examination report, the VA examiner determined that it was less likely than not that the Veteran’s diagnosed lumbar spine disorder was incurred in or caused by the claimed in-service injury, event or illness. In so finding, the examiner indicated that there was no further mention of treatment of a back condition in service (following the February 1975 treatment documented in the service treatment records) or the ensuing years until the Veteran was hospitalized in 1991 for thoracic compression after a fall. In October 2018, the Board noted that although the examiner addressed the questions related to the disorder, it was unclear if the examiner considered the complete history of the development of the disorder, inasmuch as the Veteran reported having low back pain during the September 1975 general medical examination. The claim was remanded for further VA medical opinion. In a July 2019 addendum, the VA examiner once again provided a negative nexus opinion with reference to the absence of any lumbar spine complaints or treatment following the in-service complaint of low back pain until 1991. Notably, the examiner did not address the significance, if any, of the Veteran’s report of low back pain in the September 1975 VA examination report. Due to this omission, further VA opinion is warranted. 2. Entitlement to a TDIU is remanded. In light of the grant of service connection for depressive disorder and because the claim of entitlement to a TDIU is also predicated upon the claim remanded above, this issue is inextricably intertwined and must also be remanded. The matters are REMANDED for the following action: 1. Identify and obtain any pertinent, outstanding VA treatment records and any relevant private treatment records and associate them with the claims file. 2. Forward the Veteran’s claims file to an appropriate examiner for a records review and request that he or she provide an opinion with respect to the etiology of the Veteran’s lumbar spine. The examiner should provide an opinion as to the following: Whether it is at least as likely as not (a 50 percent or greater probability) that any current lumbar spine disorder is etiologically related to service. A complete rationale must be provided for all opinions rendered. In rendering the requested rationale, the examiner must reconcile his/her opinion with the report of lumbar spine pain during service as well as the Veteran’s report of back pain recorded in the September 1975 VA examination report, shortly following discharge from service. If the examiner feels that the requested opinion(s) cannot be rendered without resorting to speculation, the examiner should explain why this is so. 2. Thereafter, the AOJ should review the record, arrange for any further development indicated, and readjudicate the claims on appeal. I. Cannaday Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Henriquez, 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.