Citation Nr: 1335485 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 12-09 282 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Togus, Maine THE ISSUE Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a bilateral hand disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD D. Havelka, Counsel INTRODUCTION The Veteran served on active duty from July 1988 to July 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Togus, Maine, which denied the reopening of the Veteran's claim for service connection for a bilateral hand disability. The Veteran filed a timely notice of disagreement with this decision in February 2010. The RO did not treat this document as a notice of disagreement, but rather as a new claim, issuing subsequent decisions. Review of the file reveals that the June 2009 rating decision is the rating decision properly appealed and the current claim has been open since the Veteran filed to reopen his claim for service connection in March 2009. FINDINGS OF FACT 1. The claim of entitlement to service connection for a bilateral hand disorder was last denied by an unappealed RO rating decision in January 2002; new and material evidence warranting the reopening of the claim has been received since that rating decision. 2. The Veteran has a current bilateral hand disorder diagnosed as Raynaud's disease and vaso-occlusive disease of the hands. 3. The evidence supports that the Veteran's duties during service included prolonged use of vibrating tools such as grinders, chippers, and needle guns. CONCLUSIONS OF LAW 1. The January 2002 rating decision that denied service connection is final. 38 U.S.C.A. § 7105(c) (West 2002). 2. Evidence received since the January 2002 rating decision that denied service connection for bilateral hand disorder is new and material, and the claim for service connection for is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2013). 3. A bilateral hand disorder, variously diagnosed as Raynaud's disease and vaso-occlusive disease, was incurred in active military service. 38 U.S.C.A. §§ 101(16), 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA is required to meet statutory and regulatory notice and duty to assist provisions. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2013). Given the favorable outcome below, no conceivable prejudice to the Veteran could result from the grant of service connection. See Bernard v. Brown, 4 Vet. App. 384 (1993). Reopening a claim for service connection which has been previously and finally disallowed requires that new and material evidence be presented or secured since the last final disallowance of that claim. If new and material evidence is presented or secured with respect to a claim that has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C.A. § 5108; Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). The fact that the RO may have determined that new and material evidence was presented, and reopened the claim on that basis, is not binding on the Board's determination of the question of whether new and material evidence has been submitted. The Board must address the issue initially itself. Barnett v. Brown, 83 F.3d 1380, 1384 (Fed. Cir. 1996). In this case, the RO denied service connection for a bilateral hand disorder in a January 2002 rating decision and notified the veteran of the decision in that same month. The Veteran did not appeal the RO decision and is final. 38 U.S.C.A. § 7105(c). The March 2012 statement of the case specifically states that new and material evidence had been submitted and the claim was reopened. A large volume of medical evidence obtained since the January 2002 rating decision revealed diagnoses of a bilateral hand disability along with evidence linking the current disability to service. The Board concludes that the evidence received since the January 2002 rating decision is new because it was not before the RO when it denied service connection at that time. This evidence is also material because bears directly and substantially upon the specific matter under consideration. The evidence is so significant that it must be considered in order to fairly decide the merits of the claim; the claim for service connection for a bilateral hand disorder is reopened. Generally, service connection may be granted for disability due to a disease or injury that was incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. In addition, service connection may be granted for any disease diagnosed after separation, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to prevail on the issue of service connection there must be medical evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v. West, 12 Vet. App. 341, 346 (1999). The Veteran served on active duty in the Navy from July 1988 to July 1991. He testified before the Board in July 2012 that during service his duties involved using pneumatic tools such as grinders, chippers, and needle guns to perform maintenance on the hull and decks of a ship. Review of his discharge papers confirms that he served as a boatswain's mate aboard the USS Belknap (GC 26). The Board finds the Veteran's testimony is competent and credible evidence, as it is consistent with the circumstances and duties of his service aboard a ship. The medical evidence of record reveals that the Veteran has a current bilateral hand disability which is diagnosed as Raynaud's disease. Review of the private and VA medical evidence of record reveals documented reports of evaluation for symptoms involving the hands dating from 1997 to the present. This evidence also reveals that the initial diagnosis of the Veteran's hand disability was difficult with a variety different diagnoses being considered prior to the current confirmed diagnosis. A January 2009 VA treatment record indicates that the Veteran reported symptoms of painful and cold intolerant hands dating back to 1991 and that his history was significant for the use of pneumatic power tools during service. An August 2009 VA treatment record notes a diagnosis of Raynaud's disease and reports a work history of using impact equipment and a history of smoking. The specific work history involving impact equipment was not specified. A January 2011 VA rheumatology note indicated that the history of the Veteran's hand symptoms was "trauma-induced/non-connective tissue disease related to vaso-occlusive disease of the hands in the setting of prolonged needle-gun use in service." In February 2012, a VA examiner indicated that the correct diagnosis was vaso-occlusive disease of the hands. The examiner's opinion was that the current disability was not likely related to service. The examiner noted that the earliest post-service medical records were dated in 1997 and referred to post-service work injury with power tools in 1993. The examiner indicated that this, along with the Veteran's continued heavy smoking, was the cause of the Veteran's vascular disorder. The Board acknowledges that the Veteran is, or was a heavy smoker, and that along with other factors contributed to his current vaso-occlusive disease of the hands as indicated in the medical opinion in the 2012 VA examination report. However, this report lays primary cause for the Veteran's current disability on the use of powered vibration tools. To the extent that the opinion relates it to use of such tools post-service in 1993, the examiner did not account for the Veteran's use of such tools during service. VA treatment records specifically have indicated that the Veteran has trauma-induced/non-connective tissue disease related to vaso-occlusive disease of the hands, with powered impact tools indicated as the cause. The evidence establishes that the Veteran used such tools during service. The Board cannot reasonably disassociate the traumatic damage from in-service use of such tools from his current bilateral hand disorder. Resolving all doubt in the Veteran's favor, the Board finds that service connection for a bilateral hand disorder, variously diagnosed as Raynaud's disease and vaso-occlusive disease, is warranted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a bilateral hand disorder, variously diagnosed as Raynaud's disease and vaso-occlusive disease, is granted. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs