Citation Nr: 21042466 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 16-06 756 DATE: July 13, 2021 ORDER New and material evidence having been introduced, the appeal to reopen claims for service connection for mood swings and posttraumatic stress disorder (PTSD) are granted. Entitlement to service connection for a right shoulder condition is denied. Entitlement to service connection for a right arm condition is denied. Entitlement to service connection for a right hand condition is denied. REMANDED Entitlement to service connection for a joint condition, to include as a component of an undiagnosed illness associated with service in Southwest Asia is remanded. Entitlement to service connection for a digestive condition, to include as a component of an undiagnosed illness associated with service in Southwest Asia is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD is remanded. FINDINGS OF FACT 1. A June 1999 rating decision denied entitlement to service connection for PTSD. The Veteran was apprised of the decision and did not appeal within a year of its issuance 2. Evidence received into the record since the June 1999 rating decision, by itself or in conjunction with previously considered evidence, relates to unestablished facts necessary to substantiate the Veteran's claim for service connection for PTSD. 3. The most probative evidence of record indicates the Veteran's right shoulder, arm, and hand conditions are not chronic, bear no etiological relationship to any aspect of active duty service, and have not been caused or aggravated by any service-connected disability. CONCLUSIONS OF LAW 1. The June 1999 rating decision denying entitlement to service connection for PTSD is final. 38 U.S.C. § 1705 (c); 38 C.F.R. § 20.1103. 2. The evidence received since the June 1999 rating decision is new and material, and the claim of entitlement to PTSD is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for entitlement to service connection for a right shoulder condition have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310. 4. The criteria for entitlement to service connection for a right arm condition have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310. 5. The criteria for entitlement to service connection for a right hand condition have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1986 to September 1989, and from December 1990 to May 1991. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). These matters were previously before the Board in October 2018, at which time they were remanded for development. They have been returned to the Board for appellate review. The Board observes that the Veteran has been service connected for a psychiatric disorder characterized as "other specified trauma and stressor-related disorder with depressive disorder and chronic insomnia," that he has not been service connected for PTSD, and that he continues to aver that he is beset by PTSD with symptoms that are separate and distinct from those caused by the already service connected disability. As such, the question of whether new and material evidence has been introduced to reopen the PTSD claim remains before the Board, and is addressed below. The claimant has not raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).. Service Connection 1. New and material evidence Although a decision is final, a claim will be reopened if new and material evidence is presented. 38 U.S.C. § 5108. 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. New evidence means existing evidence not previously submitted to VA. 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. 38 C.F.R. § 3.156 (a). In determining whether evidence is new and material, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence need not relate specifically to the reason why the claim was last denied; rather it need only relate to any unestablished fact necessary to substantiate the claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Additionally, the phrase "raises a reasonable possibility of substantiating the claim" is meant to create a low threshold that enables, rather than precludes, reopening. Id. at 117. Reopening is required when the newly submitted evidence, combined with VA assistance and considered with the other evidence of record, raises a reasonable possibility of substantiating the claim. Id. at 117. The Veteran's claim for service connection for PTSD was denied in a June 1999 rating decision. The Veteran was informed of the rating decision, but did not appeal or submit new and material evidence within one year; hence, the decision became final. Since that time, the Veteran has advanced additional evidence, including medical treatment records and lay statements in support of his claim that shed additional light on his service and the nature of his condition. The Board finds this evidence "new," because it postdates the aforementioned rating decisions. The Board also finds the new evidence "material," because it bears directly on points at issue on the question of entitlement to service connection in the instant case, and raises at least a reasonable probability of substantiating the underlying claim. Consequently, the claims of service connection for PTSD is reopened 2. Entitlement to service connection for disorders of the right shoulder, right arm, and right hand Service connection may be granted for a disability resulting from disease or injury incurred coincident with or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (nexus) between the present disability and the disease or injury incurred or aggravated during service. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F. 3d 1163, 1167 (Fed. Cir. 2004)). The absence of any one element will result in denial of service connection. Coburn v. Nicholson, 19 Vet. App. 247, 431 (2006). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including other organic diseases of the nervous system (which includes sensorineural hearing loss and tinnitus), are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. §§ 3.303 (b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Secondary service connection may be granted for a disability that is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310 (2018). In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The Veteran avers that he is beset by current disabilities of the right shoulder, right arm, and right hand, and that these conditions are etiologically related to service, specifically as a documented in-service fall, or that in the alternative, the conditions have been caused or aggravated beyond their normal course of progression by a service-connected cervical spine condition. The Veteran is service connected for several conditions associated with the aforementioned in-service fall. However, service treatment records do not reflect complaints related to the right shoulder, arm, or hand in the aftermath of that accident, nor later in service or within a year of separation therefrom. The explore the etiology of the Veteran's claimed conditions, a VA examination was conducted in August 2012, pursuant to which the examiner furnished diagnoses of right shoulder strain and right hand strain, both acute conditions, neither of which, in the examiner's opinion, bore any etiological relationship to service. The examiner explained, "[t]he Veteran denies a right shoulder joint or right arm muscle condition. He has right lateral neck pain and upper trapezius pain." The Board observes the Veteran is service connected for a cervical spine condition. The examiner further explained that the Veteran evinced only a right shoulder strain on examination, which had no relationship to the cervical spine condition. With respect to the right hand, the examiner specified that there was only localized joint pain present, which was neither related to service, nor to the cervical spine. A second VA examination, conducted in March 2019, contained similar findings. The March 2019 VA examiner diagnosed the Veteran with an acute hand strain and an acute shoulder strain, adding that although the Veteran complained of an achy right elbow, there was no evidence of current treatment, and no objective basis for a diagnosis related to the elbow or arm. With respect to etiology, the examiner indicated that because there was no evidence of shoulder, arm, or hand disability in service, there was no etiological relationship between the current acute conditions and service. Regarding the right upper extremity symptoms of which the Veteran complained, the examiner indicated they were consistent with radiculopathy of the right upper extremity secondary to cervical disc disease. The Board notes that the Veteran is service-connected for radiculopathy of the right upper extremity secondary to a cervical spine condition, and the record is bare of any diagnosis of a separate and distinct disorder of the musculature of the right arm. The Board finds these VA examiners' assessments, taken together, to be the most probative evidence of record on the question of etiology in this case. The assessments were furnished after review of the then-extant medical file, with consideration afforded the Veteran's lay statements, and they are in general accord with the balance of the evidence of record. While the Board has considered with sympathy the Veteran's lay statements, it cannot afford probative weight to his assertions with respect to the etiology of his shoulder, arm, and hand conditions in this case. While he is competent to report his experiences and symptoms since service, the Veteran is not competent to provide diagnoses and nexus opinions regarding the nature and etiology of these conditions. Jandreau v. Nicholson, 492 F. 3d 1372 (2007); Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006). The Veteran's reports of his symptoms are relevant, competent, and credible; however, the question of the presence, nature, and etiologies of the claimed conditions is limited to the purview of someone with medical knowledge and training, such as the VA medical examiners in this case. In sum, the evidence does not show that it is at least as likely as not that any chronic condition or the right shoulder, arm, or hand are present, or that any acute conditions are related to active service. Nor does the evidence show that any such conditions have been caused or aggravated beyond their normal course of progression by any service-connected condition, including a cervical spine condition. The probative value of the Veteran's assertions is outweighed by the probative value of the thorough and reasoned opinion of the VA medical experts. As the preponderance of the evidence is against the claims, service connection for disabilities of the right shoulder, arm, and hand must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for a joint condition, to include as a component of an undiagnosed illness associated with service in Southwest Asia is remanded. 2. Entitlement to service connection for PTSD is remanded. The Veteran's claims based on symptomatology putatively associated with an undiagnosed illness related to service in Southwest Asia must be remanded for an adequate VA medical examination and opinion. The VA examiner with whom the Veteran met in March 2019 confirmed the presence of digestive symptoms including diarrhea and abdominal cramping, but indicated that "[f]ormal diagnosis is not warranted for VA rating purposes due to a lack of objective evidence confirming chronicity of condition," and that the Veteran's "statements regarding diarrhea condition...is Veteran report only." With respect to joint pain, the examiner confirmed complaints of joint pain, including of the elbow and knees, but noted the Veteran was not in receipt of treatment and that no diagnosis was warranted. First, the Board notes that the Veteran has qualifying service in Southwest Asia for purposes of 38 C.F.R. § 3.317. Second, he has credibly described symptoms commonly present in undiagnosed illness associated with service in the Southwest Asia theater of operations, including digestive distress and widespread joint pain. Third, by the VA examiner's own acknowledgment, those symptoms are not accounted for by active diagnoses. On remand, a new VA examination must be conducted, and an expert medical opinion obtained as to whether the Veteran is beset by an undiagnosed illness associate with Southwest Asia service of which digestive and joint symptoms are components. As for the PTSD claim, having reopened the claim, the Board finds that the Veteran has a current diagnosis of PTSD, confirmed by VA treatment records and findings on VA examination in April 2020, and furnished in contemplation of already-conceded in-service stressors. A remand of the PTSD claim is necessary in order to obtain an expert medical opinion as to whether the Veteran's PTSD is manifested by symptoms not attributable to the acquired psychiatric disorder for which he is already service connected, namely "other specified trauma and stressor-related disorder with depressive disorder and chronic insomnia." See, e.g., Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009). If, in the view of a qualified VA medical examiner, the Veteran's PTSD confers symptoms separate and distinct from those associated with the already service connected condition, the RO should readjudicate the Veteran's PTSD claim. The matters are REMANDED for the following action: 1. After obtaining the necessary authorization, update the file with any VA or private treatment records relevant to the Veteran's claims. If any requested records are unavailable, the Veteran should be notified to that effect. 2. Then, forward the claims file to a qualified VA examiner for a medical opinion exploring the etiology of the Veteran's claimed digestive and joint symptoms. The entire claims file should be made available to and be reviewed by the examiner in conjunction with this request. Please identify by medical diagnosis any disorder or disorders associated with the digestive system and/or the joints. For each diagnosis, the examiner should state whether it is at least as likely as not (e.g. at least a 50 percent probability or greater) that the condition began in service or is otherwise related to service. Should no firm medical diagnosis be appropriate, the examiner is directed to discuss whether the symptoms of which the Veteran complains constitute components of a multisymptom undiagnosed illness associated with service in Southwest Asia during the Persian Gulf War. 3. Forward the claims file to a qualified VA examiner for a medical opinion as to whether the Veteran's diagnosed PTSD confers symptoms that are separate and distinct from those conferred by his service connected other specified trauma and stressor-related disorder with depressive disorder and chronic insomnia. If so, those symptoms should be identified and an explanation for their separate provided. If the symptoms cannot be delineated, that should also be stated. The entire claims file should be made available to and be reviewed by the examiner in conjunction with this request. 4. Review the opinions to ensure that they are in complete compliance with the directives of this remand. 5. If the benefit sought on appeal is not granted, the Veteran and his representative must be furnished a supplemental statement of the case. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Z. Sahraie, 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.