Citation Nr: 21039840 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 18-20 930 DATE: July 1, 2021 ORDER As new and material evidence has been received, the previously denied claim of service connection for a left shoulder disability is reopened. REMANDED Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a skin condition, to include tinea versicolor, is remanded. Entitlement to service connection for a left shoulder disability, to include a rotator cuff tear, is remanded. FINDINGS OF FACT 1. In a June 2002 rating decision, the AOJ denied the Veteran's claim of service connection for a left shoulder disability, to include a rotator cuff tear; this decision was not appealed and became final. 2. The evidence received since the June 2002 rating decision is new and material for the left shoulder disability claim. CONCLUSIONS OF LAW 1. The June 2002 rating decision, which denied the Veteran's claim of service connection for a left shoulder disability, is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.302. 2. Evidence received since the June 2002 rating decision in support of the claim of service connection for a left shoulder disability is new and material; the claim is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1977 to September 1997. He testified at a hearing with the undersigned in April 2020. New and Material Evidence Whether new and material evidence has been submitted to reopen the claim of service connection for a left shoulder disability. The Veteran seeks to reopen a claim of entitlement to service connection for a left shoulder disability. The initial claim was denied in June 2002 rating decision because there was no evidence of permanent residuals or a chronic disability in the Veteran's service treatment records. The Veteran did not initiate an appeal of that decision or submit new and material evidence within one year and the decision became final. In the July 2017 rating decision on appeal, the Agency of Original Jurisdiction (AOJ) reopened the claims, however continued the denial issued in the final prior rating decision. Despite the AOJ's actions, the Board has an obligation to make an independent determination of its jurisdiction. Barnett v. Brown, 8 Vet. App. 1 (1995). Evidence of record at the time of the prior final rating decisions included the Veteran's service treatment records (STRs) and the report of a November 2000 VA examination. The left shoulder disability claim was denied as there was no evidence of a chronic or permanent disability. Evidence added to the record since the June 2002 decision includes VA treatment records and the Veteran's testimony before the undersigned at an April 2020 hearing. The Board finds that the additional evidence submitted since June 2002, specifically the Veteran's testimony, relates to unestablished facts; that the Veteran has had a chronic disability since service. Shade v. Shinseki, 24 Vet. App. 110 (2010). The claim for service connection for a left shoulder disability is reopened. REASONS FOR REMAND 1. Entitlement to service connection for a right knee disability. 2. Entitlement to service connection for a left knee disability. The Veteran testified that he has had chronic and continuous pain in his bilateral knees since service. See April 2020 Hearing Transcript. In June 2017, the Veteran presented for a VA examination where he was diagnosed with osteoarthritis of both knees. The examiner offered a negative nexus opinion on both knees because the Veteran's knees were normal on separation examination. The examiner noted that while the Veteran had several complaints of knee problems in service, these appeared to have been acute and healed. This examination is inadequate because it failed to consider the Veteran's lay evidence statements that he has had pain in his knees since service. Therefore, the matters must be remanded for a new examination. 3. Entitlement to service connection for a skin condition The Veteran testified that he has had a skin rash since service. See April 2020 Hearing Transcript. A February 2018 VA examination noted a diagnosis of tinea versicolor and the examiner's opinion that it was less likely than not related to service as STRs were silent for any claimed skin rash or condition. Unfortunately, this examination is inadequate as it did not consider the Veteran's statements that he has had the rashes since service and is rather based primarily on a lack of treatment history in the Veteran's service records. Therefore, the matter must be remanded for a new examination. 4. Left Shoulder The Veteran contends that he has had left shoulder pain since service. See April 2020 Hearing Transcript. A June 2017 VA examination included that examiner's opinion that the left shoulder disability was less likely than not related to service because the shoulder evaluation on separation was normal. The examiner noted a lack of continuity of treatment showed the past medical history of shoulder complaints had resolved itself. In a February 2018 addendum, the examiner noted that the left rotator cuff tear had fully healed and therefore, there was no current disability that could be a result of military service. Unfortunately, these opinions are inadequate for numerous reasons, to include failing to consider the Veteran's that he has had continued problems with his left shoulder since service. Furthermore, the examiners did not address aggravation. Therefore, the claim for a shoulder disability must be remanded. The matters are REMANDED for the following action: 1. Contact the Veteran, and, with the Veteran's assistance identify and obtain copies of any pertinent medical or VA treatment records related to his bilateral knees, skin condition, and left shoulder and add them to the claims file. If VA attempts to obtain any outstanding records which are unavailable, the Veteran should be notified. The Veteran specifically identified treatment at the Tripler Army Medical Center in Honolulu, HI. All related records should be obtained. 2. After completion of the above, forward copies of all pertinent records to an appropriate VA examiner to obtain medical opinions on the nature and likely etiology of the Veteran's bilateral knee, left shoulder and skin disabilities. If the examiner determines that an opinion cannot be provided without an examination, (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) one should be scheduled. After reviewing the record, the examiner is asked to answer the following questions: (a) Identify all currently diagnosed knee, left shoulder and skin conditions. (b) Is it at least as likely as not (50 percent probability) that any currently diagnosed knee disability was incurred in or is otherwise related to service? (c) Is it at least as likely as not (probability of at least 50 percent) that any currently diagnosed skin condition was incurred in or is otherwise related to service? (d) Is it at least as likely as not (probability of at least 50 percent) that any currently diagnosed left shoulder disability loss was incurred in or is otherwise related to service, to include the Veteran's in-service left shoulder rotator cuff tear? The examiner must provide reasons for each opinion given. If the examiner cannot provide an opinion without resort to speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge; the examiner's own expertise, or; whether additional facts are required and note what, if any, additional evidence would permit such an opinion to be made. M.E. Larkin Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Jarman, 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.