Citation Nr: 1646015 Decision Date: 12/08/16 Archive Date: 12/21/16 DOCKET NO. 14-08 939 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for right ankle arthritis. 2. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for left ankle arthritis. 3. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for right knee arthritis. 4. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for left knee arthritis. 5. Entitlement to service connection for right ankle arthritis. 6. Entitlement to service connection for left ankle arthritis. 7. Entitlement to service connection for right knee arthritis. 8. Entitlement to service connection for left knee arthritis. 9. Entitlement to service connection right hand arthritis. 10. Entitlement to service connection for left hand arthritis. 11. Entitlement to a rating in excess of 10 percent for a right wrist condition. 12. Entitlement to a rating in excess of 10 percent for a left wrist condition. 13. Entitlement to a rating in excess of 10 percent for a right foot condition. 14. Entitlement to a rating in excess of 10 percent for a left foot condition. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD C. Ryan, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1954 to January 1958. This appeal arose to the Board of Veterans' Appeals (Board) from a September 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). The issues of entitlement to ratings in excess of 10 percent for right and left feet and wrists conditions are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. In a July 2007 rating decision, the RO denied entitlement to service connection for a right ankle condition, and the Veteran did not appeal this decision. 2. Evidence received since the July 2007 rating decision relates to the basis for the prior denial. 3. In a July 2007 rating decision, the RO denied entitlement to service connection for a left ankle condition, and the Veteran did not appeal this decision. 4. Evidence received since the July 2007 rating decision relates to the basis for the prior denial. 5. In a July 2007 rating decision, the RO denied entitlement to service connection for a right knee condition, and the Veteran did not appeal this decision. 6. Evidence received since the July 2007 rating decision relates to the basis for the prior denial. 7. In a July 2007 rating decision, the RO denied entitlement to service connection for a right knee condition, and the Veteran did not appeal this decision. 8. Evidence received since the July 2007 rating decision relates to the basis for the prior denial. 9. Resolving all doubt in the Veteran's favor, the currently demonstrated right ankle arthritis was caused by an in-service incident. 10. Resolving all doubt in the Veteran's favor, the currently demonstrated left ankle arthritis was caused by an in-service incident. 11. Resolving all doubt in the Veteran's favor, the currently demonstrated right knee arthritis was caused by an in-service incident. 12. Resolving all doubt in the Veteran's favor, the currently demonstrated left knee arthritis was caused by an in-service incident. 13. Resolving all doubt in the Veteran's favor, the currently demonstrated right hand arthritis was caused by an in-service incident. 14. Resolving all doubt in the Veteran's favor, the currently demonstrated left hand arthritis was caused by an in-service incident. CONCLUSIONS OF LAW 1. The July 2007 rating decision that denied entitlement to service connection for a right ankle condition is final. 38 U.S.C.A. § 7105(c) (West 2014); 38 C.F.R. § 20.1103 (2014). 2. Evidence received since the July 2007 rating decision with regard to a right ankle condition is new and material. Thus, this new evidence warrants reopening the claim of entitlement to service connection for a right ankle condition. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2015). 3. The July 2007 rating decision that denied entitlement to service connection for a left ankle condition is final. 38 U.S.C.A. § 7105(c) (West 2014); 38 C.F.R. § 20.1103 (2015). 4. Evidence received since the July 2007 rating decision with regard to the left ankle injury is new and material. Thus, this new evidence warrants reopening the claim of entitlement to service connection for a left ankle condition. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2015). 5. The July 2007 rating decision that denied entitlement to service connection for a right knee condition is final. 38 U.S.C.A. § 7105(c) (West 2014); 38 C.F.R. § 20.1103 (2015). 6. Evidence received since the July 2007 rating decision with regard to a right knee condition is new and material. Thus, this new evidence warrants reopening the claim of entitlement to service connection for a right knee condition. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2015). 7. The July 2007 rating decision that denied entitlement to service connection for a left knee condition is final. 38 U.S.C.A. § 7105(c) (West 2014); 38 C.F.R. § 20.1103 (2015). 8. Evidence received since the July 2007 rating decision with regard to a left knee condition is new and material. Thus, this new evidence warrants reopening the claim of entitlement to service connection for a right ankle condition. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2015). 9. The criteria for the establishment of service connection for right ankle arthritis are met. 38 U.S.C.A. §§ 1101, 1110, 1134(a), 5107 (West 2014); 38 C.F.R. § 3.303 (2015). 10. The criteria for the establishment of service connection for left ankle arthritis are met. 38 U.S.C.A. §§ 1101, 1110, 1134(a), 5107 (West 2014); 38 C.F.R. § 3.303 (2015). 11. The criteria for the establishment of service connection for right knee arthritis are met. 38 U.S.C.A. §§ 1101, 1110, 1134(a), 5107 (West 2014); 38 C.F.R. § 3.303 (2015). 12. The criteria for the establishment of service connection for left knee arthritis are met. 38 U.S.C.A. §§ 1101, 1110, 1134(a), 5107 (West 2014); 38 C.F.R. § 3.303 (2015). 13. The criteria for the establishment of service connection for right hand arthritis are met. 38 U.S.C.A. §§ 1101, 1110, 1134(a), 5107 (West 2014); 38 C.F.R. § 3.303 (2015). 14. The criteria for the establishment of service connection for left hand arthritis are met. 38 U.S.C.A. §§ 1101, 1110, 1134(a), 5107 (West 2014); 38 C.F.R. § 3.303 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION Reopening Generally, a claim that has been denied in a final unappealed decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c). 38 U.S.C.A. § 5108 presents an exception to this rule, providing that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. To comply with the directive of 38 C.F.R. § 3.156(b) that new and material evidence be treated as having been filed in connection with the pending claim, VA must evaluate submissions received during the relevant period and determine whether they contain new evidence relevant to a pending claim, regardless of whether the relevant submission might otherwise support a new claim. Bond v. Shinseki, 659 F.3d 1362, 1369 (Fed. Cir. 2011). New and material evidence is evidence not previously submitted to agency decision makers 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 previously of record and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In deciding whether new and material evidence has been submitted, the Board looks to the evidence submitted since the last final denial of the claim. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low". See Shade v. Shinseki, 24 Vet. Ap. 110, 117 (2010). In July 2007, the Veteran's claims for entitlement to service connection for right and left ankle conditions and right and left knee conditions were denied by the Chicago, Illinois RO, as there was no evidence of a connection between the Veteran's in-service occurrences and his current conditions. Those decisions are final. See 38 U.S.C.A. § 7105(c); 38 C.F.R. § 20.1103. As this is a threshold jurisdictional question for the Board, the Board must decide the matter on appeal, regardless of how the RO ruled on the question of reopening. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (reopening after a prior unappealed RO denial). The evidence received since the July 2007 rating decision includes evidence that is new and material to the claims. See 38 C.F.R. § 3.156. This new evidence clearly addresses the reasons for the previous denial, that is, lack of nexus to service. The credibility of this evidence is presumed for purposes of reopening the claim. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Accordingly, the claims are reopened and will be considered on the merits. Service Connection The Veteran alleges he is entitled to service connection for left and right ankle, knee, and hand conditions. For the following reasons, the Board finds service connection warranted for all six conditions. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). In addition, for Veterans who have served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for certain chronic diseases, including organic diseases of the nervous system, if the disability is manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic as per 38 C.F.R. § 3.309(a)). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). A review of the evidence reveals that the Veteran suffered from severe migratory arthralgia/arthritis and malaise in his knees, ankles, and hands in October 1957 while in service. The Veteran's in-service physicians diagnosed the Veteran with bilateral rheumatoid arthritis in the knees, hands, and ankles. Not long after falling ill, the Veteran was medically discharged due to his condition. In February 2014, the Veteran underwent Compensation and Pension (C&P) examinations for his claimed conditions in which he was diagnosed with arthritis in his right and left ankles, hands, and knees. The Veteran explained that for all of the claimed conditions, he had continued to suffer from the same pain and symptoms from the day of his discharge until the day of the examination. At the August 2016 hearing, the Veteran testified that he continued to suffer from the same pain and symptoms in all the same areas after leaving service and up until the current day. Applying the law to the facts of the case, the Board finds that the Veteran is entitled to service connection for chronic arthritis of the right and left ankles, knees, and hands. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." The Veteran was diagnosed with the chronic disease of arthritis of the knees, hands, and ankles in service, and he credibly testified that he continued to suffer from the exact same symptoms and pains from the day of his discharge until current day. Although there is negative evidence in the file against the claim (a February 2014 VA opinion), the Board finds that after considering all procurable evidence, the evidence for and against the claim is in relative equipoise. Therefore, the benefit-of-the-doubt doctrine is for application; the Veteran's current disabilities had their onset in service, and service connection is warranted. ORDER Service connection for right ankle arthritis is granted. Service connection for left ankle arthritis is granted. Service connection for right knee arthritis is granted. Service connection for left knee arthritis is granted. Service connection for right hand arthritis is granted. Service connection for left hand arthritis is granted. REMAND In March 2016, the Veteran's representative requested new examinations for his feet and wrist conditions. Thus, the Board finds new examinations are warranted in order to determine the current severity of the Veteran's feet and wrist conditions. See Caluza v. Brown, 7 Vet. App. 498, 505-506 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991); VAOPGCPREC 11-95 (interpreting that a new examination is appropriate when there is an assertion of an increase in severity since the last examination). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Schedule the Veteran for an examination to assess the nature and severity of his right and left foot conditions. The examiner is asked to test the range of motion in active motion, passive emotion, weight-bearing and nonweight-bearing for both joints. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. 2. Schedule the Veteran for an examination to assess the nature and severity of his right and left wrist conditions. The examiner is asked to test the range of motion in active motion, passive emotion, weight-bearing and nonweight-bearing for both joints. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. 3. After conducting any other necessary development, readjudicate the claim. If any of the benefits sought on appeal remain denied, the Veteran and his representative should be furnished with a Supplemental Statement of the Case and be given an opportunity to respond thereto. 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 2014). ______________________________________________ BRADLEY W. HENNINGS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs