Citation Nr: 23027356 Decision Date: 05/09/23 Archive Date: 05/09/23 DOCKET NO. 19-22 593 DATE: May 9, 2023 ORDER New and material evidence has been submitted to reopen the claim for service connection for a left arm disability; to that extent the appeal is granted. New and material evidence has been submitted to reopen the claim for service connection for a right knee disability; to that extent the appeal is granted. REMANDED Entitlement to service connection for a left arm disability is remanded. Entitlement to service connection for a right knee disability is remanded. Entitlement to a rating in excess of 50 percent, prior to September 4, 2020, for posttraumatic stress disorder (PTSD) is remanded. FINDINGS OF FACT 1. Evidence has been received since the final January 2017 rating decision, which is new, and not cumulative, and raises a reasonable possibility of substantiating the claim for service connection for left arm disability. 2. Evidence has been received since the final January 2017 rating decision, which is new, and not cumulative, and raises a reasonable possibility of substantiating the claim for service connection for a right knee disability. CONCLUSIONS OF LAW 1. Evidence received since the final January 2017 rating decision is new and material as to the request to reopen the claim for service connection for a left arm disability; thus, the claim is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 2. Evidence received since the final January 2017 rating decision is new and material as to the request to reopen the claim for service connection for a right knee disability; thus, the claim is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from September 1977 to September 1980. He had subsequent service in the Army National Guard from September 1980 to April 1981, and in the Army Reserve from April 1981 to February 1993. During his Reserve service, the Veteran was ordered to active duty in support of Operation Desert Shield/Storm from November 1990 to May 1991 and he served in Southwest Asia from December 1990 to April 1991. In a February 2021 rating decision, the Agency of Original Jurisdiction (AOJ) granted a 100 percent rating for PTSD, effective from September 4, 2020. The Board notes that while the Veteran was previously represented by a private attorney, however, the attorney withdrew representation in a letter received in June 2021. The attorney provided a copy of the letter to the Veteran, and the Veteran has not objected to the attorney's withdrawal of representation. As the private attorney withdrew and the Veteran has not appointed a new attorney, agent, or representative, he is currently unrepresented. The Veteran requested and was scheduled for a virtual tele-hearing, but, in July 2022, he withdrew the hearing request. New and Material Evidence To reopen a claim following a final decision, the Veteran must submit new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. New evidence means existing evidence not previously submitted to agency decisionmakers. 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. Id. 1. Whether new and material evidence has been submitted to reopen the claim for service connection for a left arm disability. By January 2017 rating decision, the AOJ denied service connection for rheumatoid arthritis and tendonitis left arm, based on findings that this condition neither occurred in nor was caused by service. The Veteran was notified of this rating decision but did not appeal or submit new and material evidence within one year, and thus, it became final. It is the last final disallowance of the claim. The evidence of record at the time of the January 2017 rating decision included service treatment records (STRs), service personnel records, VA treatment records, private treatment records, and VA examinations, none of which showed the Veteran had a left arm disability, to include rheumatoid arthritis and tendonitis, that was incurred in or caused by service. Evidence submitted after the January 2017 rating decision includes VA treatment records, private treatment records, VA examinations, statements from fellow servicemembers, and statements from the Veteran. In a February 2018 statement, A.C., who served with the Veteran from November 1990 to May 1991, reported seeing the Veteran fall from the engine deck to the ground and injure his shoulder, but he refused medical help. In March 2018, the Veteran submitted a copy of a photograph that he reported was of him in service wearing a sling on his left arm. A March 2018 VA examination revealed a diagnosis of left shoulder arthritis. The Veteran reported he fell in service in 1977 and dislocated his left shoulder, and since then has had intermittent left shoulder pain. The examiner stated that the Veteran's left shoulder degenerative arthritis was a disease with a clear and specific etiology and opined it was less likely as not that the disability pattern or diagnosed disease was related to a specific exposure the Veteran experienced during his Southwest Asia service. In the September 2018 Notice of Disagreement, the Veteran stated that he submitted a photo of his left arm in a sling from when he was attending AIT (advanced individual training) for helicopter maintenance at Fort Eustis. The Veteran reported that VA claimed they could not locate the records. The Board concludes that new and material evidence has been submitted to reopen the claim, to specifically include the lay statements and the VA examination cited above, which are new and address whether the Veteran has a current left arm disability that may be related to service. Thus, this claim is reopened. 2. Whether new and material evidence has been submitted to reopen the claim for service connection for a right knee disability. By January 2017 rating decision, the AOJ denied service connection for right knee condition, (also claimed as knee deterioration with muscle and joint pain and rheumatoid arthritis), based on findings that his right knee condition was neither occurred in nor was caused by service. The Veteran was notified of this rating decision but did not appeal or submit new and material evidence within one year, and thus, it became final. It is the last final disallowance of the claim. The evidence of record at the time of the January 2017 rating decision included service treatment records (STRs), service personnel records, VA treatment records, private treatment records, and VA examinations, which showed the Veteran had a current right knee disability of arthritis. A November 2016 VA examination revealed a diagnosis of right knee arthritis. The examiner opined that the Veteran's right knee arthritis was less likely than not incurred in or caused by the claimed in-service injury, event or illness, stating for rationale that a service separation report in 1991 noted a history positive for trick or locked knee and history of hurt right knee. The examiner noted there was no mention of how the Veteran injured his right knee and no further evidence of a right knee condition until 2014 when private records showed he reported right knee pain after prolonged standing and walking, and in 2016, severe right knee degenerative joint disease was noted. Evidence submitted after the January 2017 rating decision includes VA treatment records, private treatment records, VA examinations, statements from fellow servicemembers, and statements from the Veteran. In a January 2018 statement, N.C., who served with the Veteran in Operation Desert Shield/Storm, reported working with the Veteran on helicopters and witnessed him fall from the top and hit the ground hard and injure his knee. In a February 2018 statement, another fellow servicemember, A.C., reported seeing the Veteran fall from the engine deck to the ground and injure his knee. A March 2018 VA examination diagnosed total right knee replacement, which the examiner stated was a disease with a clear and specific etiology. The examiner opined it was less likely as not that the disability pattern or diagnosed disease was related to a specific exposure during the Veteran's Southwest Asia service and stated that medical literature did not support an association between right total knee replacement and Gulf War illness or specific exposures during the Gulf War. In the September 2018 Notice of Disagreement, the Veteran stated that he submitted two letters of the incident in service showing that his knee condition was caused by a fall off a helicopter and worsened to the point of a knee replacement. The Board concludes that new and material evidence has been submitted to reopen the claim, to specifically include the lay statements and the VA examination cited above, which are new and address whether the Veteran has a current right knee disability that may be related to service. Thus, this claim is reopened. REASONS FOR REMAND 1. Entitlement to service connection for a left arm disability is remanded. The Veteran contends his current left arm disability is related to an injury during active service. It appears that the Veteran has reported two separate in-service left arm injuries - one during his first period of service in 1977, and the other during his second period of active service from November 1990 to May 1991. At a February 1995 VA examination, the Veteran reported that approximately 6 months after his return from the Persian Gulf in 1991, he developed pain in various joints, including his elbows and shoulders. In February 1995, x-rays revealed a normal left elbow and normal left shoulder. In a February 2018 statement, A.C. a fellow servicemember, who served with the Veteran from November 1990 to May 1991, reported seeing the Veteran fall from the engine deck to the ground and injuring his shoulder. In March 2018, the Veteran submitted a copy of a photograph that reportedly showed him with a sling on his left arm. A March 2018 VA examination revealed a diagnosis of left shoulder arthritis. The Veteran reported he fell in service in 1977 and dislocated his left shoulder, and that since then he had intermittent left shoulder pain. The examiner rendered an opinion as to whether the Veteran's left shoulder arthritis was related to his service in Southwest Asia during the Gulf War. The examiner did not, however, address whether the Veteran's current left elbow disability and/or left shoulder disability may be related to his active service. The examiner also did not address the significance, if any, of the Veteran's competent report of having left shoulder pain since his first period of active service. Once VA undertakes the effort to provide an examination when developing a service connection claim, it must provide an adequate one. Barr v. Nicholson, 21 Vet. App. 303 (2007). Accordingly, a VA addendum opinion is warranted. 2. Entitlement to service connection for a right knee disability is remanded. The Veteran contends his current right knee disability is related to an injury during active service. In the September 2018 Notice of Disagreement, the Veteran stated he submitted letters showing that his knee condition was caused by a fall off a helicopter in service and that it had worsened to the point of a knee replacement. Service treatment records show that, in an April 1991 Report of Medical History at separation, the Veteran responded "yes" to having swollen or painful joints and a trick or locked knee. At a July 1994 VA examination, the Veteran reported joint pain in the knees. The examiner noted that no specific diagnosis could be made at the present time since all physical findings were within normal limits, but one must consider "Gulf Syndrome," which was to be reconsidered after x-rays and laboratory reports were reviewed. An x-ray of the right knee was negative. At a February 1995 VA examination, the Veteran reported that six months after he returned from the Persian Gulf in 1991, he developed pain in various joints, including the knees. On examination, he reported weakness and soreness in his joints. The diagnoses included possible Persian Gulf Syndrome and right knee arthralgia. An x-ray of the right knee was negative. A January 2016 private record noted a diagnosis of severe right knee degenerative joint disease. A November 2016 VA examiner opined that the Veteran's right knee arthritis was less likely than not incurred in or caused by the claimed in-service injury, event or illness, stating for rationale, that the 1991 separation report noted a history positive for trick or locked knee and history of hurt right knee, but there was no mention of how he injured his right knee and no further evidence of a right knee condition until a 2014 record showed he reported right knee pain after prolonged standing and walking, and, in 2016, severe right knee degenerative joint disease was noted. In January 2018 and March 2018, fellow servicemembers, A.C. and N.C., reported that they witnessed the Veteran fall off a helicopter and injure his knee. Neither servicemember, however, specified which knee was injured. A March 2018 VA examiner diagnosed total right knee replacement, 2017, and stated this was a disease with a clear and specific etiology. The examiner opined it was less likely as not that the disability pattern or diagnosed disease was related to a specific exposure during the Veteran's Southwest Asia service and stated that medical literature did not support an association between right total knee replacement and Gulf War illness or specific exposures during the Gulf War. A July 2020 treatment record from Ginter Wellness, LLC shows diagnoses of severe right knee osteoarthritis and RSD (reflex sympathetic dystrophy). Although the VA examiners in 2016 and 2018 have rendered negative opinions regarding whether the Veteran's right knee arthritis and total right knee replacement are related to service, the examiners did not address whether the Veteran's right knee disabilities may be related to an injury during his active service. The examiner also did not address the significance, if any, of the Veteran's competent report of having right knee pain service his second period of active service. Once VA undertakes the effort to provide an examination when developing a service connection claim, it must provide an adequate one. Barr v. Nicholson, supra. Accordingly, a VA addendum opinion is warranted. A March 2021 VA treatment record noted that the Veteran was seeing an outside (non-VA) orthopedic doctor for his right knee condition. While the Veteran has submitted treatment records from some private providers, on remand, the Veteran should be provided an opportunity to identify any other private providers who have treated him for his right knee condition, left arm, and PTSD. 3. Entitlement to a rating in excess of 50 percent, prior to September 4, 2020, for PTSD is remanded. The record reflects that the Veteran receives disability benefits from the Social Security Administration (SSA). In that regard, at the April 2018 VA PTSD examination, the Veteran reported he "collected SSDI." The evidence considered by the SSA in granting the claim is not of record. VA's duty to assist the Veteran includes an obligation to obtain the records from the SSA. Masors v. Derwinski, 2 Vet. App. 181 (1992). The matters are REMANDED for the following action: 1. Obtain the Veteran's SSA records, including all medical records considered in determining his entitlement and associate them with the file. 2. Obtain all VA treatment records not of record, including those pertaining to treatment after May 2021. 3. Ask the Veteran to complete a VA Form 21-4142 for each private healthcare provider who has treated him for any left arm, right knee, and psychiatric disabilities, to include PTSD. Make two requests for the authorized records from all identified healthcare providers unless it is clear after the first request that a second request would be futile. 4. Forward the claims file to the March 2018 VA examiner for an addendum opinion regarding the nature and probable etiology of the Veteran's current left arm disabilities. The examiner should review the claims folder and identify all left arm disabilities found during the appeal period. The examiner should then provide an opinion as to as to whether it is at least as likely as not (at least an approximate balance of positive and negative evidence) that any identified left arm disability had an onset in, or is otherwise related to, a period of active service. The examiner should address the medical significance, if any, of the Veteran's report of having left shoulder symptoms since his first period of active service, from which he separated in September 1980. The examiner must explain the rationale for any opinions given, and, if unable to provide any requested opinion without resorting to speculation, the examiner should so state and should provide an explanation as to the reason(s) therefor. If deemed necessary by the examiner, a physical examination of the Veteran should be conducted. If the original VA examiner (from 2018) is not available, please forward this request to another qualified examiner. 5. Forward the claims file to the March 2018 VA examiner for an addendum opinion regarding the nature and probable etiology of the Veteran's current right knee disabilities. The examiner should review the claims folder and identify all right knee disabilities found during the appeal period. The examiner should then provide an opinion as to as to whether it is at least as likely as not (at least an approximate balance of positive and negative evidence) that any identified right knee disability had an onset in, or is otherwise related to, a period of active service. The examiner should specifically address the medical significance, if any, of the Veteran's report of having right knee symptoms since his second period of active service, from which he separated in May 1991. The examiner must explain the rationale for any opinions given, and, if unable to provide any requested opinion without resorting to speculation, the examiner should so state and should provide an explanation as to the reason(s) therefor. If deemed necessary by the examiner, a physical examination of the Veteran should be conducted. If the original VA examiner (from 2018) is not available, please forward this request to another qualified examiner. Leetra J. Harris Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Casula, Denise 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.