Citation Nr: 1342004 Decision Date: 12/19/13 Archive Date: 12/31/13 DOCKET NO. 11-01 423 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to service connection for residuals, soft tissue injury of right hand (claimed as broken right hand). 2. Whether new and material evidence has been received to reopen a claim for service connection for lower back strain, and if so, whether service connection is warranted. 3. Whether new and material evidence has been received to reopen a claim for service connection for a heart murmur. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Jason A. Lyons, Counsel INTRODUCTION The Veteran served on active duty from September 1989 to September 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. A Travel Board hearing was held before the undersigned Veterans Law Judge in April 2012, a transcript of which is of record. The reopened claim for service connection for a low back condition and the petition to reopen service connection for a heart murmur 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. The evidence is approximately evenly balanced on the question of whether the Veteran's right hand neurological disorder is causally related to service. 2. In July 1997, the RO denied the Veteran's original claim of entitlement to service connection for a low back condition. The Veteran did not appeal. 3. Additional evidence has since been obtained which relates to an unestablished fact necessary to substantiate this previously denied claim of entitlement to service connection for a low back condition. CONCLUSIONS OF LAW 1. The criteria are met to establish service connection for residuals, soft tissue injury of the right hand. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107(b) (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2013). 2. The July 1997 RO rating decision denying service connection for a low back condition is a final and binding determination. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.104(a), 20.200, 20.302 (2013). 3. There is new and material evidence since that decision to reopen the claim of entitlement to service connection for a low back condition. 38 U.S.C.A. § 5108 (West 2002 & Supp. 2013); 38 C.F.R. § 3.156(a) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) provides that VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). As the Board is granting the benefit sought of service connection for a right hand disorder, the question of VCAA compliance is effectively moot. Regarding service connection for a lower back disorder, which the Board presently reopens and then remands, a determination on VCAA compliance is reserved for the eventual decision. I. Service Connection for Right Hand Disorder The Veteran contends that he developed an ongoing right hand disorder after a soft tissue injury playing recreational sports in service, then diagnosed as a sprain. Service treatment records document the underlying injury in April 1993. Given moreover, that there is competent medical evidence etiologically linking present day disability to in-service injury, the Board concludes that the criteria for service connection are met. To this effect, on a February 2010 VA Compensation and Pension examination, the diagnosis was median/ulnar neuropathy post hyperextension right hand. The examiner opined that the diagnosed disorder was at least as likely as not due to in-service injury, as "hyperextension of [the] right hand with incident stretching or trauma to [the] median and ulnar nerve is apt to result in neuropathy." The foregoing clearly substantiates a causal nexus between a right hand neurological disorder and service. The Board is well aware that subsequent VA examination of May 2010 resulted in a contrary opinion on medical nexus, ascribing the recent neurological condition of the right hand to post-service intercurrent injuries. This notwithstanding, VA's doctrine of resolving reasonable doubt in the claimant's favor on a material issue, including here, where the evidence is evenly balanced on the subject of causation, warrants a favorable disposition. See 38 U.S.C.A. § 5107(b). Hence, service connection for a right hand disorder is granted. II. Petition to Reopen Service Connection for Lower Back Disorder A July 1997 RO rating decision denied the Veteran's original claim, finding that there was no diagnosable post-service back disability. The Veteran did not file a timely Notice of Disagreement (NOD) with that decision, to initiate an appeal of it, and hence it became final and binding based on the evidence then of record. See U.S.C.A. § 7105; 38 C.F.R. §§ 3.104(a), 20.200, 20.302. In addition, no new and material evidence was received within one year of the decision. See 38 C.F.R. § 3.156(b). When a petition to reopen the claim is later presented under section 5108, VA must first determine whether the evidence presented or secured since the last final disallowance of the claim is new and material. 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. 38 C.F.R. § 3.156(a). For the purpose of determining whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Since the original denial of service connection, a February 2005 VA outpatient treatment report associated with the record provides an assessment of "low back strain/spasm." This finding unequivocally meets the criterion of evidence of a current disability, and hence, indicates a sufficient basis upon which to reopen this previously denied claim. Therefore, upon presentation of new and material evidence, service connection for a lower back condition is reopened. ORDER Service connection for residuals, soft tissue injury of right hand is granted. New and material evidence having been received, the claim for service connection for lower back strain is reopened. REMAND The Board remands the reopened claim for service connection for a lower back condition for de novo consideration on the merits. While on remand, a VA Compensation and Pension examination is warranted to determine whether any present residual low back disorder has a causal relationship to military service. Moreover, identified VA treatment records should be obtained. The Veteran has also indicated a period of reserve duty; all corresponding records should be obtained. Efforts should also be undertaken to ensure that the Veteran's complete records from the Beth Israel Hospital have been obtained. These additional development actions likewise have significance for the pending petition to reopen service connection for a heart murmur. See generally, 38 C.F.R. § 3.159(c) (duty to obtain pertinent treatment records applies to petition to reopen previously denied claim). Accordingly, these claims are REMANDED for the following action: 1. Obtain a complete copy of the Veteran's treatment records from the: (1) Bedford, Massachusetts, VA Medical Center (VAMC), dated since November 2009; (2) Los Angeles VAMC, dated from August 1996 to February 1999; (3) Boston VA Healthcare System, dated since February 2005; and (4) Lowell, Massachusetts Outpatient Clinic, and associate a copy of these records with the claims folder (and/or the electronic "Virtual VA" folder). 2. Make arrangements to obtain the Veteran's complete treatment records associated with his Naval Reserve service, dated since August 1996. 3. Make arrangements to obtain the Veteran's complete treatment records from the Beth Israel Hospital, dated since 1997 4. Thereafter, schedule the Veteran for a VA orthopedic examination with regard to his claimed lower back disability. The claims folder must be provided to and reviewed by the examiner in conjunction with the examination. All indicated tests and studies should be performed, and all findings should be set forth in detail. The VA examiner should identify all current disorders of the lumbar spine. Following this, the examiner must indicate whether any diagnosed back disability at least as likely as not (50 percent or greater probability) had its clinical onset during active service or is related to any in-service disease, event, or injury, taking into due consideration the Veteran's repeated in-service episodes of low back strain and related symptomatology and duties that involved heavy lifting. The examiner should include in the examination report the rationale for any opinion expressed. However, if the examiner cannot respond to the inquiry without resort to speculation, he or she should so state, and further explain why it is not feasible to provide a medical opinion. 5. Next, review the claims file to ensure that the foregoing requested development has been completed. In particular, review the VA examination report to ensure that it is responsive to and in compliance with the directives of this remand, and if not, implement corrective procedures. See Stegall v. West, 11 Vet. App. 268 (1998). 6. Finally, readjudicate the Veteran's reopened claim for service connection for a lower back condition, and petition to reopen service connection for a heart murmur. If any claim is not granted in full, provide the Veteran and his representative with a Supplemental Statement of the Case (SSOC), and after they have had an adequate opportunity to respond, return this case to the Board for further appellate review. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the Veteran until further notice. However, the Board takes this opportunity to advise the Veteran that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claims. His cooperation in VA's efforts to develop his claims, including reporting for any scheduled VA examination, is both critical and appreciated. The Veteran is also advised that failure to report for any scheduled examination may result in the denial of a claim. 38 C.F.R. § 3.655. These claims 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. 2013). ______________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs