Citation Nr: 1139906 Decision Date: 10/27/11 Archive Date: 11/07/11 DOCKET NO. 09-45 569 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for a right elbow disorder. 2. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for a left elbow disorder. 3. Entitlement to service connection for a right elbow disorder. 4. Entitlement to service connection for a left elbow disorder. 5. Entitlement to an effective date prior to November 29, 2007, for the grant of service connection for posttraumatic stress disorder. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. Grabia, Counsel INTRODUCTION The Veteran served on active duty from April 1985 to September 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal of rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran testified at a May 2011 Board hearing before the undersigned Acting Veterans Law Judge, sitting at the RO; a transcript of that hearing is associated with the claims file. Additional evidence was presented at the hearing which was accompanied by a waiver and is also on file. The reopened issues of entitlement to service connection for a right elbow disorder and entitlement to service connection for a left elbow disorder are REMANDED to the RO via the Appeals Management Center in Washington, D.C. VA will notify the Veteran if further action on his part is required. FINDINGS OF FACT 1. At his May 2011 Board hearing, prior to promulgation of a decision in the appeal, the Veteran withdrew his appeal with respect to the issue of entitlement to an earlier effective date for the award of service connection for posttraumatic stress disorder (PTSD). 2. An unappealed February 2006 rating decision denied entitlement to service connection for a right elbow disorder and a left elbow disorder. 3. Evidence received since the February 2006 rating decision includes lay and medical evidence that tends to relate the Veteran's right and left elbow disorders to service; relates to the unestablished facts necessary to substantiate the claims of service connection for such disabilities; and raises a reasonable possibility of substantiating the claims. CONCLUSIONS OF LAW 1. The criteria for withdrawal of a substantive appeal by the Veteran as to the issue of entitlement to an earlier effective date for the award of service connection for PTSD have been met. 38 U.S.C.A. § 7105(b) (2), (d) (5) (West 2002 & Supp. 2010); 38 C.F.R. §§ 20.202, 20.204 (2011). 2. New and material evidence having been received, the claim of service connection for a right elbow disorder is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002 & Supp. 2010); 38 C.F.R. § 3.156 (2011). 3. New and material evidence having been received, the claim of service connection for a left elbow disorder is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002 & Supp. 2010); 38 C.F.R. § 3.156 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Withdrawal of Issue on Appeal Pursuant to 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. §§ 20.202, 20.204(b) (2011). Except for appeals withdrawn on the record at a hearing, appeal withdrawals must be in writing. 38 C.F.R. § 20.204(c) (2011) (as amended by 68 Fed. Reg. 13,235 (Apr. 18, 2003)). On the record at the Veteran's May 2011 Board hearing, prior to the promulgation of a decision in the appeal, the Veteran indicated that he wished to withdraw his appeal as to the issue of entitlement to an earlier effective date for the award of service connection for PTSD. The Board finds that the criteria have been met for withdrawal of the Veteran's appeal as to the issue of entitlement to an earlier effective date for the award of service connection for PTSD. Accordingly, there remain no allegations of errors of fact or law for appellate consideration, the Board does not have jurisdiction to review the appeal, and it is dismissed. New and Material Evidence Claims The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify the veteran of information and evidence necessary to substantiate the claim and redefined its duty to assist her in obtaining such evidence. 38 U.S.C.A. §§ 5102, 5103, 5103A, and 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156, 3.159, 3.326 (2011). Given the favorable disposition of the action here, which is not prejudicial to the veteran, the Board need not assess VA's compliance with the VCAA in the context of the issue of whether new and material evidence has been submitted to reopen the claims. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992). Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C.A. § 7105. However, a claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 U.S.C.A. § 5108. 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. See 38 C.F.R. § 3.156(a). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); Justus v. Principi, 3 Vet. App. 510 (1992). The United States Court of Appeals for Veterans Claims (Court) recently determined that the requirement of new and material evidence raising a reasonable possibility of substantiating the claim is a low threshold. Specifically, the Court interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." See Shade v. Shinseki, 24 Vet. App. 110 (2010). A February 2006 rating decision denied the Veteran's claims for service connection for a right elbow disorder and service connection for a left elbow disorder on the basis that neither currently diagnosed condition was related to his military service. The Veteran did not perfect an appeal, and the decision is final. 38 U.S.C.A. § 7105. Pertinent evidence received since the February 2006 rating decision includes the Veteran's lay hearing testimony to the effect that he has had chronic left and right elbow pain for twenty years during service. He did not report it but dealt with it by taking Tylenol or "Icy Hot," and moved on. He testified that subsequent to service he was given his initial VA examination. The examiner did not really examine him and diagnosed him with tendinitis. He continued to treat it himself with over the counter medications when his elbows hurt. Subsequently he was given an x-ray through the VAMC which revealed that, "the tip of the elbow was broken off." The examiner asked him what he thought the cause of the bone fracture was. The Veteran told the examiner he did not do any physical activities since service and his jobs were all clerical. The Veteran testified that the only thing he could think of that could have caused the elbow fracture was an incident in Iraq when dismounting from his vehicle, "I slammed my elbow into the back of the Humvee as I was exiting the vehicle." He further added that going into the prone position probably aggravated it even more. However he could have injured his elbows anytime during his twenty years of service. He further testified that the examiner during his initial VA examination never took x-rays of his elbows. The first time he received x-rays of the elbows was after he insisted on it with his VA provider. Additional evidence of record submitted since the last final rating decision includes an April 2008 VA outpatient treatment record noting sensitivity of the left elbow when touched at the left olecranon. April 2008 x-rays revealed a left olecranon fracture believed to be a remote trauma. A November 2008 VA x-ray revealed calcification of the left elbow. The evidence is presumed credible for the purposes of reopening and the lay evidence is competent, as the Veteran can relate symptoms (or reports thereof) capable of lay observation (i.e., pain on use of the elbows, and with heavy lifting, weightlifting, etc.). See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007). The Board finds that the evidence is new, as it was not previously of record and, in light of the holding in Shade above, material as it tends to suggest that the Veteran's right and left elbow disabilities are related to his military service. The new evidence pertains to the unestablished facts necessary to substantiate the claims of service connection for left and right elbow disabilities, and raises a reasonable possibility of substantiating the claims. On this basis, the claims are reopened. ORDER The appeal as to the issue of entitlement to an earlier effective date for the award of service connection for PTSD is dismissed. New and material evidence having been submitted, the issue of entitlement to service connection for a right elbow disability is reopened, and to that extent only, the appeal is granted. New and material evidence having been submitted, the issue of entitlement to service connection for a left elbow disability is reopened, and to that extent only, the appeal is granted. REMAND Governing VA regulation provides that an examination or opinion is necessary if the evidence of record contains competent evidence that the claimant has a current disability, or persistent or recurrent symptoms of disability, establishes that the Veteran suffered an event, injury or disease in service, and indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service, but does not contain sufficient medical evidence for the Secretary to make a decision on the claim. See 38 C.F.R. § 3.159(c) (4). Evidence establishing a nexus must only reach a "low threshold;" for an examination to be required, the evidence must only indicate that there "may" be a nexus between the current disability or symptoms and the Veteran's service. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The Veteran testified and offered supporting lay evidence that he has had chronic left and right elbow symptomatology since service. Specifically, he reported bilateral elbow injuries from an incident in Iraq after slamming his elbow into the back of the Humvee on exiting the vehicle, and argued that he may have also injured or aggravated his elbows during his over 20 years of service by repeatedly getting into the prone position. His service treatment records confirm these assertions to some degree, reflecting reports of bilateral elbow pain as well as a history of a left elbow fracture prior to service which may have suffered aggravation in service. VA outpatient treatment records show evidence of a left elbow fracture and pathology suggestive of a remote traumatic left elbow injury. The Board finds that the evidence of record suggests that the Veteran's left and right elbow disabilities may be associated with his active service, the "low threshold" standard as to when an examination to secure a nexus opinion is required is met, and development for such an examination is necessary. 38 C.F.R. § 3.159(c) (4); McLendon, 20 Vet. App. at 83. Accordingly, the reopened issues of entitlement to service connection for a right elbow disorder and entitlement to service connection for a left elbow disorder are REMANDED for the following actions: 1. Obtain copies of all VA outpatient treatment records concerning the Veteran's right and left elbow symptoms, dated from February 2006 to the present. 2. Schedule the Veteran for a VA joints examination to determine the nature and likely etiology of any current right and left elbow disabilities. The Veteran's claims file and a copy of this remand must be reviewed by the examiner in conjunction with the examination. After review of the record and examination of the Veteran, the examiner should diagnose any right and/or left elbow disabilities found, and opine whether any disability found is at least as likely as not (50 percent or greater probability) related to his military service, to include the reported bilateral elbow injury therein. The examiner should specifically consider the Veteran's accounts of a left and right elbow injury in service. The examiner must also include a discussion regarding the left elbow injury described at the time of the Veteran's entrance into active service. If the examiner determines that the Veteran's left elbow condition manifested during service is the same as the condition identified at the time of his service entrance, the examiner should opine as to whether the pre-existing left elbow condition was aggravated during service beyond its natural progression. A complete rationale must be provided for any opinion expressed, citing to current clinical findings, radiologic tests, and/or other claims file documents, as appropriate. 3. Notify the Veteran that he must report for the examination scheduled, and cooperate in the development of the claim. Failure to report for a VA examination without good cause may result in denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2011). If the Veteran does not report for a scheduled examination, associate a copy of the examination notice letter with the claims file, indicating whether any notice that was sent was returned as undeliverable. 4. Readjudicate the claims. If any benefit sought on appeal remains denied, issue an appropriate Supplemental Statement of the Case and give the Veteran and his representative the opportunity to respond. Then, return the case to the Board. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. All claims remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). _________________________________________________ J. MACIEROWSKI Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs