Citation Nr: 1605098 Decision Date: 02/10/16 Archive Date: 02/18/16 DOCKET NO. 14-20 169A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for a right elbow disability. REPRESENTATION Veteran represented by: Colin E. Kemmerly, Attorney at Law ATTORNEY FOR THE BOARD Heather J. Harter, Counsel INTRODUCTION The Veteran served on active duty from September 1974 to March 1975 and from January 1976 to August 1977. This appeal comes to the Board of Veterans' Appeals (Board) from a September 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama (hereinafter, "AOJ"), which denied service connection for post-operative residuals of the right elbow for removal of loose bodies, degenerative osteoarthritis and minimal limitation of motion. The Veteran's physical claims file and his file on the VBMS paperless claims processing system have been reviewed. Accordingly, future consideration of this Veteran's case should take into account the existence of both the physical and electronic records. The issue of entitlement to service connection for a right elbow disability is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. FINDINGS OF FACT 1. The AOJ denied the Veteran's claim of entitlement to service connection for a right elbow disability in a December 1978 rating decision and the Veteran was notified of this decision in January 1979. The Veteran filed a timely notice of disagreement with that decision in February 1979, and the AOJ issued a statement of the case in February 1979; however, the Veteran did not pursue a substantive appeal to the Board. 2. New and material evidence regarding service connection for the Veteran's right elbow disability has been submitted since the December 1978 rating decision. CONCLUSION OF LAW The December 1978 rating decision denying service connection for the Veteran's right elbow disability is final; new and material evidence has been submitted, and the Veteran's claim is reopened. 38 U.S.C.A. §§5108, 7105 (West 2014); 38 C.F.R. §§ 3.104(a), 3.156, 20.302, 20.1103 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran is seeking service connection for a right elbow disability. The AOJ originally denied the claim in a rating decision dated December 1978, on the basis that the disability had pre-existed service. Although the Veteran filed a notice of disagreement with that rating decision in January 1979 and the AOJ issued a statement of the case in February 1979, no timely substantive appeal was filed and the December 1978 rating decision became final. 38 U.S.C.A. §§ 5108, 7105 (West 2014); 38 C.F.R. §§ 3.104(a), 3.156, 20.302, 20.1103 (2015). Generally, a claim that has been denied in an unappealed AOJ decision may not thereafter be reopened unless new and material evidence is presented with respect to the denied claim. 38 U.S.C.A. §§ 5108, 7104(b), 7105(c) (West 2014). New evidence is defined as evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with the previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence cannot be cumulative or 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). The Court of Appeals for Veterans Claims has interpreted the language of section 3.156(a) as establishing a low threshold for what is considered new and material evidence. Shade v. Shinseki, 24 Vet. App. 110 (2010). For purposes of establishing 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 rating decision in December 1978, the Veteran has submitted medical records demonstrating that he continues to have pain and numbness in his right elbow. For example, a radiological report from the South Baldwin Regional Medical Center dated in July 2014, indicates that the Veteran has a history of numbness and weakness in his elbow and further notes that foreign bodies within the medial aspect of the forearm soft tissues consistent with small pieces of shrapnel were discovered in radiological images. Similarly, a VA primary care note dated August 12, 2014, indicates that the Veteran has pain in the right elbow with numbness from the elbow to the thumb and that x-rays indicate degenerative joint disease and metal fragments. See Mobile Alabama Outpatient Clinic Primary Care Note dated on August 12, 2014. These records were not before the VA in 1978 when the original rating decision was issued, and this new information is material to the Veteran's claim for service connection as it goes to the issue of continuity of symptoms. Moreover, records available to the adjudicators at the time of the original 1978 decision did not mention or discuss small pieces of metal or shrapnel. Given the low threshold established for new and material evidence under Shade, the Veteran's claim for entitlement to service connection for a right elbow disability is reopened. ORDER New and material evidence having been received, the claim for entitlement to service connection for a right elbow disability is reopened. REMAND The AOJ did not reopen and reconsider the Veteran's claim for service connection for his right elbow disability on the merits and therefore remand is appropriate. VA has generally required the AOJ to consider a reopened claim on the merits in the first instance. Hickson v. Shinseki, 23 Vet. App. 394, 399-400 (2010). This is because the AOJ "generally does not assess the credibility of the evidence or determine the need for a medical examination or opinion when reopening is denied." Id. at 403 (internal citations omitted). Thus, if the Board initially reopens a claim when the AOJ "has not considered the need for a medical examination or opinion, or assessed the credibility of the evidence, the Board would be considering law that the [AOJ] had not already considered, possibly implicating § 20.903(b)." Id. In addition, the "[AOJ] should, in the first instance, consider that new evidence and decide the matter so as to preserve for that claimant the one review on appeal as provided by [38 U.S.C.A. § 7104 (West 2002)]." Id. at 399. "The Board, however, may proceed to decide the merits of the claim if the Board first secures a waiver from a claimant or the Board determines that the claimant would not be prejudiced by proceeding to a decision on the merits." Id. at 399-400. On remand, additional development should be undertaken to ensure that all of the relevant information to decide the claim is before the adjudicator. Also, upon remand, the RO is required to perform a de novo review of the evidence of record, including any newly-obtained evidence. In this regard, the Board observes that the December 1978 AOJ decision found that the Veteran's right elbow disability had pre-existed service and that the disability had not been aggravated during the two months of service which had passed between his entrance onto his second period of service and the March 1976 surgery to his right elbow. In making this finding, the RO acknowledged that no report of the Veteran's medical examination which was, or should have been accomplished at the point of his induction onto his second period of service, was available to adjudicators. The RO did not acknowledge the Veteran's report of having been involved in a March 1976 accident where a generator fell on his left elbow. The report of the March 1976 surgery is of record, and does not support the Veteran's history of having a generator fall on his elbow. Nevertheless, these aspects of the claim must be considered and discussed during the required de novo review. Accordingly, the case is REMANDED for the following actions: 1. Obtain the Veteran's service treatment records for his first tour of active duty ending on March 8, 1975. 2. Obtain and associate with the claims file all VA medical records from March 1975 to January 1976 and from August 1977 to present that are not already of record, to include a copy of a general medical examination conducted upon induction in January 1976, or a document showing waiver of such a medical examination. Archived paper records must be searched, if available. All efforts to obtain these records should be fully documented, and a negative response must be provided if records are not available. 3. Ask the Veteran to identify any private medical records related to his right elbow that are not already of record. To the extent records are identified, obtain releases from the Veteran to obtain those records and associate them with the claims file. 4. After the available records are obtained, schedule the Veteran for a medical examination to evaluate the nature and severity of his right elbow disability, including complaints of numbness and weakness. The examiner should be provided with the Veteran's claims file, and a complete rationale should be provided for any opinion expressed. All tests and studies deemed helpful by the examiner should be performed. The examiner should address whether the currently-shown disability, or any component of the current disability was incurred or aggravated by service and consider the Veteran's lay statements regarding an in-service injury involving a generator falling on his elbow. The examiner should specifically correlate the Veteran's current elbow condition with the condition of his elbow following the March 1976 surgery, to include a complete description of the surgical scars on his elbow and a correlation of the scars with the March 1976 operation report. If an opinion cannot be provided without resort to speculation, the examiner should so state and comment on whether any additional medical information could help render an opinion. 5. After completing the above actions and any additional development deemed necessary, readjudicate the claim. If the benefits sought are not granted, the Veteran and his attorney should be furnished with a supplemental statement of the case and afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matter 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 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 2014). ______________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs