Citation Nr: 18160641
Decision Date: 12/27/18	Archive Date: 12/27/18

DOCKET NO. 17-00 640
DATE:	December 27, 2018
ORDER
As new and material evidence sufficient to reopen the previously denied claim for a left shoulder connection has been received, the application to reopen is granted.
REMANDED
Entitlement to service connection for a left shoulder condition is remanded.
Entitlement to service connection for a joint condition is remanded.
Entitlement to service connection for a stomach condition is remanded.
Entitlement to service connection for a migraine condition is remanded.
Entitlement to service connection for a left lower extremity condition is remanded.
Entitlement to service connection for a right lower extremity condition is remanded.
Entitlement to service connection for bilateral knee condition is remanded.
Entitlement to service connection for a lower back condition is remanded.

FINDINGS OF FACT
1. In a rating decision dated in June 1994, the RO denied the Veteran’s claim for service connection for a left shoulder condition; the Veteran did not appeal this decision or submit new evidence within one year of the denial.
2. Evidence received since the June 1994 RO decision is neither cumulative nor redundant of evidence already of record and raises a reasonable possibility of substantiating the claim of entitlement to service connection for a left shoulder condition.
CONCLUSIONS OF LAW
1. The June 1994 rating decision denying service connection for a left shoulder condition is final.  38 U.S.C. § 7105 (2014); 38 C.F.R. §§ 3.104(a), 20.1103 (2018).
2. New and material evidence sufficient to reopen the Veteran’s claim of entitlement to service connection for a left shoulder condition has been submitted; the claim is reopened.  38 U.S.C. § 5108 (2014); 38 C.F.R. § 3.156(a) (2018).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty from February 1992 to February 1994 with service in Southwest Asia.
1. New and material evidence to reopen the previously denied claim for a left shoulder connection
The Veteran’s claim for service connection for a left shoulder condition was denied in a June 1994 rating decision.  The RO determined that the evidence did not show that the Veteran had a current left shoulder condition as the Veteran failed to report for his examination.  The Veteran did not appeal this decision or submit new evidence within one year of the denial.  The June 1994 decision thereby became final. 
Since that final decision, the Veteran has submitted new and material evidence.  In the May 2013 lay statement, the Veteran’s wife stated that the Veteran was experiencing shoulder pain that needed to be treated with over the counter pain medication.  Her lay statements are presumed credible under Justus v. Principi, 3 Vet. App. 510 (1992).  This evidence relates to a previously unestablished element (current condition) and raises a reasonable possibility of substantiating the claim.  Shade v. Shinseki, 24 Vet. App. 110, 118 (2010); see also Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998) (noting that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant’s injury or disability).
REASONS FOR REMAND
Upon review of the record, the Board finds that the claims must be remanded.  The Board sincerely regrets the additional delay caused by this remand, but wishes to assure the Veteran that it is necessary for a full and fair adjudication of his claims.
1. Entitlement to service connection for a left shoulder condition is remanded.
Evidence of record indicates that the Veteran failed to report for VA examinations in September 2013 and October 2013.  The September 2013 examination report reflects that two attempts to call the Veteran were made in August 2018 and a letter was sent that same month.  A review of the Veteran’s file does not indicate that such events took place.   Furthermore, there is no indication that the Veteran was provided the requisite notice for the examinations.  Because an examination would be of significant assistance to the Board, the Board finds that a remand is required to afford the Veteran another opportunity to appear for the appropriate examination to assist in his claim. 
2. Entitlement to service connection for a joint condition is remanded.
3. Entitlement to service connection for a stomach condition is remanded.
4. Entitlement to service connection for a migraine condition is remanded.
5. Entitlement to service connection for a left lower extremity condition is remanded.
6. Entitlement to service connection for a right lower extremity condition is remanded.
The Board finds that remand is needed in order to obtain new examinations and etiology opinions.  The July 2013 examiner noted that the Veteran did not have any current conditions; however, the examiner also elected to choose a section that found that the Veteran’s disability pattern was “a disease with a clear and specific etiology and diagnosis.”  It remains unclear if the Veteran did or did not have any disabilities when the examination took place.  This internal inconsistency underscores the need for new examinations and etiology opinions.  
Accordingly, the Board finds a remand is warranted for further evidentiary development.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes to provide a medical examination or opinion, it must ensure that the examination or opinion is adequate); see also Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board’s duty to return an inadequate examination report “if further evidence or clarification of the evidence... is essential for a proper appellate decision”).
7. Entitlement to service connection for bilateral knee condition is remanded.
8. Entitlement to service connection for a lower back condition is remanded.
The Board notes that the Veteran has not been afforded VA examinations with respect to his current claims for service connection for a bilateral knee condition and lower back condition.  VA’s duty to assist includes providing a medical examination when it is necessary to make a decision on a claim.  38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159.  Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or symptoms of disability, (2) establishes that the Veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability.  38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006).  Here, the Veteran’s October 2013 VA treatment records indicate that he is being treated for bilateral knee degenerative joint disease and September 2014 NOD indicates that he has lower back pain that affects his professional life and which he manages with pain medication; has asserted that these conditions began in service; and has provided lay evidence that these conditions have continued since service; however, there is insufficient evidence of record to decide the claims.  Consequently, remand for examinations and etiology opinions is warranted.  See id.; Locklear v. Nicholson, 20 Vet. App. 410 (2006).
The matters are REMANDED for the following action:
1. Assist the Veteran in associating with the claims folder updated treatment records.
2. After any additional records are associated with the claims file, schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran’s left shoulder condition.
The claims file should be made available to the examiner for review in connection with the examination.  Based on review of the record and examination of the Veteran, the examiner should respond to the following: 
a)	Is it at least as likely as not (probability of 50 percent or more) that the current left shoulder condition had its onset in or is related to service?
The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinions, including, but not limited to the Veteran’s lay statements of carrying heavy tie down chains and service in Southwest Asia.
The examiner must provide the rationale for all proffered opinions.  If the examiner is unable to provide any required opinion, he or she should explain why.  If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so.  If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed.
3. Schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran’s joints condition.
The claims file should be made available to the examiner for review in connection with the examination.  Based on review of the record and examination of the Veteran, the examiner should respond to the following: 
a)	Is it at least as likely as not (probability of 50 percent or more) that the current joints condition had its onset in or is related to service?
The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinions, including, but not limited to the Veteran’s lay statements of his condition being due to his service in Southwest Asia.
The examiner must provide the rationale for all proffered opinions.  If the examiner is unable to provide any required opinion, he or she should explain why.  If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so.  If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed.
4. Schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran’s stomach condition.
The claims file should be made available to the examiner for review in connection with the examination.  Based on review of the record and examination of the Veteran, the examiner should respond to the following: 
a)	Is it at least as likely as not (probability of 50 percent or more) that the current stomach condition had its onset in or is related to service?
The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinions, including, but not limited to the Veteran’s lay statements of his condition being due to his service in Southwest Asia.
The examiner must provide the rationale for all proffered opinions.  If the examiner is unable to provide any required opinion, he or she should explain why.  If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so.  If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed.
5. Schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran’s migraine condition.
The claims file should be made available to the examiner for review in connection with the examination.  Based on review of the record and examination of the Veteran, the examiner should respond to the following: 
a)	Is it at least as likely as not (probability of 50 percent or more) that the current migraine condition had its onset in or is related to service?
The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinions, including, but not limited to the Veteran’s lay statements of his condition being due to his service in Southwest Asia.
The examiner must provide the rationale for all proffered opinions.  If the examiner is unable to provide any required opinion, he or she should explain why.  If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so.  If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed.
6. Schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran’s right and left lower extremity condition.
The claims file should be made available to the examiner for review in connection with the examination.  Based on review of the record and examination of the Veteran, the examiner should respond to the following: 
a)	Is it at least as likely as not (probability of 50 percent or more) that the current right lower extremity condition had its onset in or is related to service?
b)	Is it at least as likely as not (probability of 50 percent or more) that the current left lower extremity condition had its onset in or is related to service?
The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinions, including, but not limited to the Veteran’s lay statements his condition being due to falling off an aircraft and due to his service in Southwest Asia.
The examiner must provide the rationale for all proffered opinions.  If the examiner is unable to provide any required opinion, he or she should explain why.  If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so.  If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed.
7. Schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran’s bilateral knee condition.
The claims file should be made available to the examiner for review in connection with the examination.  Based on review of the record and examination of the Veteran, the examiner should respond to the following: 
a)	Is it at least as likely as not (probability of 50 percent or more) that the current bilateral knee condition had its onset in or is related to service?
The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinions, including, but not limited to the Veteran’s lay statements of his condition being due to his service in Southwest Asia.
The examiner must provide the rationale for all proffered opinions.  If the examiner is unable to provide any required opinion, he or she should explain why.  If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so.  If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed.
8. Schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran’s lower back condition.
The claims file should be made available to the examiner for review in connection with the examination.  Based on review of the record and examination of the Veteran, the examiner should respond to the following: 
a)	Is it at least as likely as not (probability of 50 percent or more) that the current lower back condition had its onset in or is related to service?
The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinions, including, but not limited to the Veteran’s lay statements of his condition being due to falling off and plane and his condition being due to his service in Southwest Asia.
The examiner must provide the rationale for all proffered opinions.  If the examiner is unable to provide any required opinion, he or she should explain why.  If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so.  If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed.
9. Schedule the Veteran for a VA Gulf War/undiagnosed illness examination, with an appropriate examiner.  The examiner must review the claims file in conjunction with the examination.  All tests and studies deemed necessary by the examiner should be performed.
a)	The examiner is requested to state whether the Veteran’s complaints of stomach issues, migraines, joint pain, back pain, shoulder pain, bilateral lower extremity pain, and bilateral knee pain are attributable to a known clinical diagnosis or to a disease process other than a known clinical diagnosis.  If the examiner cannot identify a known disease or disability which causes these symptoms, the examiner should so state.  The examiner should clarify whether the symptoms in question are chronic in nature (e.g., present for 6 months or more).  The examiner should also indicate whether the Veteran’s symptoms and complaints represent a medically unexplainable chronic multi-symptom illness defined by a cluster of signs or symptoms.
b)	If the Veteran’s complaints are attributable to a known clinical diagnosis, the examiner should render an opinion as to whether such disability is at least as likely as not (e.g., a 50 percent or greater probability) etiologically related to active military service or events therein, to specifically include the reports of stomach issues, migraines, joint pain, back pain, shoulder pain, bilateral lower extremity pain, and bilateral knee pain therein.
The examiner is also advised that the Veteran is competent to report symptoms and treatment, and that his reports must be taken into account, along with the other evidence of record, in formulating the requested opinion.
The examiner should set forth all examination findings, along with the complete rationale for any conclusions reached.
10. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claims.
11. In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address.  It must also be indicated whether any notice that was sent was returned as undeliverable.

 
 A. S. CARACCIOLO
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	R. Gandhi, Associate Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

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