Citation Nr: 1322917 Decision Date: 07/18/13 Archive Date: 07/24/13 DOCKET NO. 09-50 562 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for arthritis of the left elbow. 2. Entitlement to service connection for arthritis of the left elbow. 3. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for arthritis of the left wrist. 4. Entitlement to service connection for arthritis of the left wrist. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Smith, Counsel INTRODUCTION The Veteran served on active duty from July 1968 to July 1971. The Veteran's claim comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision of the Department of Veterans Affairs' (VA) Regional Offices (RO) in St. Louis, Missouri. The Board notes that the Veteran has not submitted a waiver of review by the agency of original jurisdiction for additional evidence received by VA since the statement of the case. However, as claims adjudicated below are being granted, the Board finds there is no risk of prejudice to the Veteran from proceeding without the waiver. The Board has considered documentation included in the Virtual VA system in reaching the determinations below. No new records pertinent to this appeal were found therein. The issues of entitlement to service connection for arthritis of the left elbow and arthritis of the left wrist are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. An unappealed May 1995 rating decision denied claims for service connection for disabilities of the left elbow and left wrist; the Veteran was notified of that decision and apprised of his appellate rights but did not appeal. 2. The evidence pertaining to arthritis of the left elbow and left wrist received subsequent to the May 1995 rating decision was not previously submitted, relates to an unestablished fact necessary to substantiate the claims, and is neither cumulative nor redundant. CONCLUSIONS OF LAW 1. The May 1995 rating decision of the RO denying the Veteran's claims for service connection for disabilities of the left elbow and left wrist is final. 38 U.S.C.A. § 7105(b) (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2012). 2. New and material evidence has been submitted to reopen the claims for service connection for arthritis of the left elbow and arthritis of the left wrist. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Notice and Assistance Given the favorable action taken hereinbelow, a detailed discussion of the Veterans Claims Assistance Act of 2000 (VCAA) is not required at this time. Analysis Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As noted, the RO denied the Veteran's claims for service connection for disabilities of the left elbow and left wrist in a rating decision of May1995. The evidence of record at the time consisted of statements from the Veteran, service treatment records, VA treatment records, and VA examination reports. As for the left elbow, the RO held that the Veteran's service treatment records were negative for a chronic problem. Service treatment records showed a fracture to the right navicular, but no evidence of an elbow fracture. Any possible in-service elbow injuries were not shown to be other than acute and transitory. As for the left wrist, the RO held that service treatment records also did not show an injury to the left wrist. An in-service injury was documented as to the right wrist only. The record included the claim, 1995 x-ray evidence of an osteophyte, lay evidence regarding the in-service injury, but no evidence of left wrist pathology. The Veteran was properly notified of the decision, but did not appeal. The decision became final. See 38 U.S.C.A. § 7105 (West 2002 & Supp. 2012); 38 C.F.R. §§ 20.302, 20.1103 (2012). No evidence was received within one year of the rating decision. Under pertinent legal authority, VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of the Veteran. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). The present appeal was initiated in 2008. Regarding applications to reopen filed on or after August 29, 2001, 38 C.F.R. § 3.156(a) defines "new" evidence as evidence not previously submitted to agency decisionmakers and "material" evidence as 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 final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining whether new and material evidence has been received, VA must initially decide whether evidence received since the prior final denial is, in fact, new. As indicated by these regulation, and by judicial case law, "new" evidence is that which was not of record at the time of the last final disallowance (on any basis) of the claim, and is not duplicative or "merely cumulative" of other evidence then of record. This analysis is undertaken by comparing the newly received evidence with the evidence previously of record. After evidence is determined to be new, the next question is whether it is material. The provisions of 38 U.S.C.A. § 5108 require a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. See Evans v. Brown, 9 Vet. App. 273, 282-3 (1996). Here, the last final denial of the claim is the RO's May 1995 rating decision. For purposes of the "new and material" analysis, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). Pertinent evidence added to the claims file since May 1995 includes additional statements from the Veteran, private treatment records, and VA examination reports for other disabilities. Among these records are two statements from private physicians. In a May 2009 statement from a family practitioner, the Veteran's account of his in-service injury was documented. He reported that while in Vietnam, he fell hard onto a outstretched arms with his elbows fixed. On examination, the examiner noted significant tenderness to palpation over the olecranon processes bilaterally, and decreased forearm extension in the right upper extremity. The examiner noted that the fall resulted in a forceful blow to both olecranon processes. The examiner concluded, "these findings make it a possibility that his injuries in Vietnam have resulted in his chronic elbow pathology." In a September 2010 report from a treating physician at the Bone & Joint Center, the Veteran's account of his in-service injury was again documented. He reported that he sustained bilateral wrist injuries while in Vietnam approximately 40 years prior. He contended he was treated with casts, and has suffered chronic pain throughout the elbows and wrists ever since. The physician diagnosed the Veteran with bilateral elbow osteoarthritis, and arthritis of the scaphotrapeziotrapezoid joint and basal joints of both wrists. The physician concluded, "his radiographic findings tend to explain the origin of his symptoms." The Board finds that the evidence is new and material and is not duplicative or cumulative of evidence previously of record. At the time of the prior denial there was no evidence of a nexus to service. This evidence cures one of the prior evidentiary defects. We also note that at the time of the prior decision there was no objective evidence of left wrist pathology. Based upon the prior evidence, objective evidence of pathology is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010) (holding that the language of 38 C.F.R. § 3.156(a) creates a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening.") For these reasons, Board finds this evidence raises a reasonable possibility of substantiating the Veteran's claims. Accordingly, the criteria for reopening the claim of service connection for arthritis of the left elbow and arthritis of the left wrist are met. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. ORDER The application to reopen a claim for service connection for arthritis of the left elbow is granted. The application to reopen a claim for service connection for arthritis of the left wrist is granted. REMAND The Board finds that further development is necessary before the claims remaining on appeal can be properly adjudicated. Initially, the Board notes that there appear to be outstanding VA treatment records pertinent to the claims. In various correspondence dated from October 2008, November 2008, December 2008, and February 2009, the Veteran stated that he receives treatment at the VA Medical Center in Fayetteville, and the VA Outpatient Clinic in Mount Vernon. At present, the claims file contains no VA treatment records dated subsequent to 1995. Records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). In addition, the Board finds that further development is needed on the issue of the in-service incurrence of the Veteran's disabilities. The Veteran in this case contends his injuries were sustained during combat. He contends he was with the 178th Assault Helicopter Company in Chu Lai, Republic of Vietnam, in 1970. He was working on the flight line trying to repair helicopters for the next day's missions, when they came under attack. The Veteran contends he dove for cover, and in doing so, landed hard on his elbows and hit is wrists on the ground. He states the flight line floor was comprised of interlocking corrugated steel matting. He contends he fractured his wrists in the incident. In his VA Form 9, he states he remembers getting in trouble with the Red Cross fellow because his parents had made some inquiries as he hadn't been able to write to them because of his wrists. His commanding officer let him use his phone at the MARS station to call home and let his parents know he was ok. He argues it is not his fault that his injuries were not accurately documented in his records in Vietnam. He contends he currently suffers from decreased motion in his wrists, a weak grip, and sharp nerve-like pain in the elbows. For combat Veterans, 38 U.S.C.A. § 1154(b) (West 2002 & Supp. 2012) provides that "[t]he Secretary shall accept as sufficient proof of service-connection . . . satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions and hardships of such service . . . Service-connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary." See also 38 C.F.R. § 3.304(d) (2012). However, the United States Court of Appeals for Veterans Claims (the Court) has further held that 38 U.S.C.A. § 1154(b) can be used only to provide a factual basis upon which a determination could be made that a particular disease or injury occurred in service, not to link the in-service injury etiologically to the current disorder. See Libertine v. Brown, 9 Vet. App. 521, 522-23 (1996). Section 1154(b) does not establish service connection for a combat Veteran; it aids him by relaxing the adjudicative evidentiary requirements for determining what happened in service. A Veteran must still generally establish his claim by competent medical evidence tending to show a current disability and a nexus between that disability and those service events. See Gregory v. Brown, 8 Vet. App. 563, 567 (1996). In Kessel v. West, 13 Vet. App. 9 (1999), the Court affirmed that the 38 U.S.C.A. § 1154(b) presumption only relates to the question of service incurrence, it does not relate to questions of whether the Veteran has a current disability or whether there was a nexus between the in-service event and the current disability. The Veteran's DD214 Form does not indicate combat status. His service treatment records show injuries to the right arm as the result of a fall, but do not document injuries to the left elbow or wrist or indicate that the injury was sustained in combat. Records from June 1969 show the Veteran fell on his right arm, injuring his right elbow and right wrist. Both were tender, and he was sent for an x-ray. The x-ray slip noted the Veteran had fallen from a wrecker with his arm under his body, onto PSP (perforated steel planking .) His navicular bone of the right wrist was fractured, and his right elbow was negative. A subsequent June 1969 record noted the Veteran had fallen on an outstretched arm, and had pain and limited motion in the elbow and wrist of his right arm. The Veteran's upper extremities were normal on separation. While the RO has awarded service connection for a right elbow disorder and right navicular fracture, combat status and the contended injuries have not been conceded. On remand, the RO should obtain the Veteran's personnel file in an effort to corroborate details of the Veteran's account, or any combat status. The Board also finds that VA medical opinions are necessary to adjudicate the claims on appeal. In compensation claims, VA's duty to assist includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c)(4) (2012). As noted above, the Veteran has been diagnosed with arthritis of the elbows, and arthritis of the scaphotrapeziotrapezoid joint of the wrists, documented, for example, in an October 2010 private medical report. The Veteran is competent to describe in-service problems with his left elbow and left wrist. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465, 470 (1994); Washington v. Nicholson, 19 Vet. App. 362 (2005). Moreover, service treatment records corroborate the fact that a fall did occur in service. Additionally, the file contains the private medical opinions from May 2009 and September 2010, which loosely connect the Veteran's present disabilities with service. A more definitive opinion, based upon a review of the claims file, should be sought prior to appellate adjudication. Accordingly, the case is REMANDED for the following action: 1. Obtain all pertinent VA treatment records from the Fayetteville VA Medical Center, and the Outpatient Clinic in Mount Vernon. The RO must follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards to requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. If no records can be obtained, VA's efforts and any resolution determined must be documented for the record, and compliance with the requirements of 38 C.F.R. § 3.159(e)(i)-(iv) (2012) must be achieved. 2. Request the Veteran's personnel records from the National Personnel Records Center, and associate all such records with the Veteran's claim folder. All records and/or responses received should be associated with the claims file. If no records can be obtained, VA's efforts and any resolution determined must be documented for the record, and compliance with the requirements of 38 C.F.R. § 3.159(e)(i)-(iv) (2012) must be achieved. 3. The Veteran should be afforded a VA orthopedic examination to address the nature and likely etiology of his arthritis of the left elbow, and arthritis of the left wrist. The examiner is to be provided access to the claims folder and Virtual VA as needed. Any and all indicated studies deemed necessary by the examiner should be accomplished. The examiner is requested to review all pertinent records associated with the claims file and offer comments and an opinion addressing whether it is at least as likely as not (50 percent probability or greater) that the Veteran suffers from any left elbow disorder or left wrist disorder due to an injury or other event or incident of his period of active service. The Veteran contends that he injured his left elbow and left wrist when he fell hard to the ground in service onto interlocking corrugated steel matting on the flight line during an attack. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. All opinions should be supported by a clear rationale, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 4. The Veteran should be notified that it is his responsibility to report for the examination and to cooperate in the development of the claims. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). 5. After the development requested has been completed, the RO should review the examination report to ensure that it is in complete compliance with the directives of this REMAND. If the report is deficient in any manner, the RO must implement corrective procedures at once. 6. After the completion of any action deemed appropriate in addition to that requested above, the appellant's claims should be readjudicated. All applicable laws and regulations, and all evidence received since the October 2009 statement of the case, to include in the electronic claims file, should be considered. If any benefit sought remains denied, the appellant should be provided a supplemental statement of the case and given the opportunity to respond. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals 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. 2012). ______________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs