Citation Nr: 1624610 Decision Date: 06/20/16 Archive Date: 06/29/16 DOCKET NO. 13-19 483 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Whether new and material evidence has been received to reopen a previously denied claim for service connection for the right wrist, and if so, whether service connection is warranted. REPRESENTATION Appellant represented by: National Association of County Veterans Service Officers WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Shamil Patel, Counsel INTRODUCTION The Veteran had active service in the U.S. Navy from December 1982 to November 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska, which reopened a previously denied claim for service connection for a right wrist disability, but denied the claim on the merits. The Veteran testified before the undersigned Acting Veterans Law Judge at a Travel Board hearing in March 2014. A copy of the hearing transcript is of record. FINDINGS OF FACT 1. The Veteran did not appeal an August 1985 rating decision which denied service connection for a right wrist disability, but evidence received since that rating decision relates to a previously unestablished element of the claim and raises a reasonable possibility of substantiating the claim. 2. Right wrist avascular necrosis preexisted service and was aggravated by service. CONCLUSIONS OF LAW 1. The August 1985 rating decision which denied service connection for a right wrist disability is final, but new and material evidence has been received to reopen the claim. 38 U.S.C.A. §§ 5108, 7105(c) (West 2014); 38 C.F.R. §§ 3.104(a), 3.156, 3.160(d), 20.200, 20.302, 20.1103 (2015). 2. The criteria for service aggravation for right wrist avascular necrosis have been met. 38 U.S.C.A. §§ 1131, 1153, 5103, 5103A, 5107 (West 2014); 38 C.F.R. § 3.303, 3.306 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. New and Material Evidence The Veteran was previously denied service connection for a right wrist condition in an August 1985 rating decision. Generally, a claim that has been denied by an unappealed RO decision or an unappealed Board decision may not thereafter be reopened. 38 U.S.C.A. §§ 7104(b), 7105(c). An exception to this rule exists for cases in which new and material evidence is presented or secured with respect to a claim that has been disallowed, in which case the claim must be reopened and the former disposition reviewed. 38 U.S.C.A. § 5108. Although the RO reopened the Veteran's claim and has adjudicated the issue on the merits in the March 2013 rating decision on appeal, the Board must consider the question of whether new and material evidence has been received because it goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim de novo. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). "New" evidence means evidence not previously submitted to agency decisionmakers, and "material" evidence means 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 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). This is a "low threshold" in which the phrase "raises a reasonable possibility" should be interpreted as "enabling rather than precluding reopening." Shade v. Shinseki, 24 Vet. App. 110, 121 (2010). The credibility of the newly-submitted evidence is presumed, although not blindly accepted as true if patently incredible. Justus v. Principi, 3 Vet. App. 510 (1992). In this case, the Veteran was denied service connection for a right wrist disability in an August 1985 rating decision. He did not appeal this decision, and therefore it is final. 38 C.F.R. §§ 3.104(a), 20.302, 20.1103. At the time of this prior denial, the evidence established that a right wrist disability preexisted service but was not aggravated by service. Since the prior adjudication of the Veteran's claim, new evidence has been received. This includes the Veteran's March 2014 hearing testimony, in which he detailed additional wrist injuries he sustained during service resulting from a fall and a car accident. He also described wrist pain and other symptoms he experienced during service. This evidence is new, as it was not part of the record at the time of the prior final decision. It is also material, as it directly addresses the question of whether the Veteran's preexisting wrist disability was aggravated by service. Therefore, new and material evidence has been received, and the claim is reopened. II. Service Aggravation Generally, service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131. In this case, there is evidence that the Veteran had a right wrist disability which existed prior to service. He underwent an enlistment examination in January 1982, which reflects no relevant abnormalities. However, this examination was almost one year prior to the start of his period of active service in December 1982. Service treatment records from December 1982, approximately 8 days into his period of active duty, show that the Veteran complained of right wrist pain which started from doing pushups. He reported a history of a sprained wrist from October 1982. His x-rays did not reveal a fracture, and he was diagnosed with a sprained wrist. The evidence therefore reflects that a right wrist condition preexisted service, and the Veteran himself acknowledges this. See Hearing Transcript at 3. A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153. A preexisting injury or disease is said to have been aggravated during active service if it underwent a permanent increase in disability beyond the natural progress of the disease or injury. Donnellan v. Shinseki, 24 Vet. App. 167, 171 (2010). The burden of proof lies with the claimant to show that the disability increased in severity during service. Id. at 174. Only then is the presumption of aggravation triggered, shifting the burden to the government; such burden to be met by a showing of clear and unmistakable evidence that the increase was not beyond its natural progression. Id. Additional records from January 1983 reflect a diagnosis of tendonitis. In February 1983, the Veteran underwent x-rays which revealed a moderate loss of height of the lunate bone with slight increased density, highly suggestive of aseptic necrosis of that bone. In August 1984, the Veteran continued to have pain and decreased flexion in the wrist, which he stated had increased since his 1982 injury. Service treatment records from September 1984 include a comment from the treating physician that there was a "major problem here." He noted that the Veteran had injured his wrist a year ago, and again 8 weeks ago. His x-rays now showed avascular necrosis of the lunate with severe collapse, though pain was mild. The physician stated that the Veteran needed a hand surgery consultation, but that there was no urgency in the matter as the collapse had already occurred. Collectively, this evidence reflects an increase in the Veteran's preexisting right wrist disability during service. Whereas x-rays from February 1983 indicated a "moderate loss of height" of the lunate bone, the September 1984 x-rays showed a "severe collapse." The September 1984 physician's comment of a "major problem" also indicates an increase in the severity of the condition as compared to earlier findings, and the Veteran himself reported in August 1984 that his pain level had increased since the October 1982 injury prior to service. As in-service aggravation has been shown, the burden shifts to the government to show, by clear and unmistakable evidence, that such increase was not beyond the natural progression of the condition. Such evidence, however, is not contained in the record. A February 2013 VA examiner concluded that the Veteran's wrist condition was not aggravated by service, based on a finding that the Veteran's in-service symptoms of pain and decreased range of motion did not progress. However, this examination does not address the changes in x-ray findings, the comments of the September 1984 physician, or the Veteran's own report of increased pain levels, and therefore its probative value in assessing whether there was an increase in disability during service is negligible. As a result, the presumption of aggravation of the Veteran's preexisting right wrist disability has not been rebutted, and service aggravation has been established. III. The Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) outlines procedural assistance VA must provide claimants in certain cases. If the VCAA is applicable, the Board must ensure that the required notice and assistance provisions of the law have been properly applied. In this case, however, the Board is granting in full the benefit sought on appeal. Therefore, the Board need not discuss whether there has been compliance with the VCAA because any noncompliance ultimately amounted to no more than harmless error. 38 C.F.R. § 20.1102 (2015). See also Shinseki v. Sanders, 129 S. Ct. 1696 (2009). ORDER The previously denied claim for service connection for a right wrist disability is reopened, and service connection for avascular necrosis of the right wrist is granted. ____________________________________________ B. C. MORTON Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs