Citation Nr: 1801790 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 06-22 657 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for status post, injury right hand. 2. Entitlement to service connection for status post, injury right hand. 3. Entitlement to an initial compensable evaluation for service-connected status post removal of ingrown toenail, right foot. 4. Entitlement to an initial compensable evaluation for service-connected residuals of laceration to the right thumb. 5. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD P.S. McLeod, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1977 to February 1978, and from February 1981 to April 1983. These matters come before the Board of Veterans' Appeals (Board) on appeal from May 2005 and July 2015 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. These matters, excluding entitlement to a TDIU, were previously before the Board in March 2011 and were remanded for further development. The issue of entitlement to an initial compensable evaluation for status post removal of ingrown toenail, left foot was also remanded at that time. However, development subsequent to the Board's remand included a December 2011 rating decision that severed service connection for status post removal of ingrown toenail, left foot effective February 01, 2012. This decision was not appealed in a timely manner and the issue is thus not before the Board. The issues of the reopened claim of entitlement to service connection for status post, right hand injury, entitlement to compensable ratings for service-connected status post removal of ingrown toenail, right foot and for service-connected residuals of laceration to the right thumb, and entitlement to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. A May 1986 decision denied the Veteran's service connection claim for status post, injury right hand. The Veteran did not perfect an appeal of that decision or submit new and material evidence within one year of being notified; the decision became final. 2. Evidence received since the May 1986 rating decision is new and raises a reasonable possibility of substantiating the claims of entitlement to service connection for status post, injury right hand. CONCLUSIONS OF LAW 1. The May 1986 decision, which denied the Veteran's claim of entitlement to service connection for status post, injury right hand is final. 38 U.S.C. § 7105 (West 2014), 38 C.F.R. § 3.160(d) (2017). 2. New and material evidence has been received to reopen the claim of entitlement to service connection for status post, injury right hand. 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Unappealed rating decisions are final with the exception that a claim may be reopened by submission of new and material evidence. When a Veteran seeks to reopen a claim based on new evidence, VA must first determine whether the additional evidence is "new" and "material." Second, if VA determines that new and material evidence has been added to the record, the claim is reopened and VA must evaluate the merits of the Veteran's claim in light of all the evidence, both new and old. Manio v. Derwinski, 1 Vet. App. 140 (1991). If the Board finds that no such evidence has been offered, that is where the analysis must end. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). New evidence means existing 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 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). 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. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. In determining whether evidence is new and material, the credibility of the new evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). In a May 1986 rating decision the RO denied the Veteran's service connection claim for status post, injury right hand. The Veteran was noted to have a right hand injury that preexisted service and a VA physician opined that it had not been permanently aggravated by the Veteran's service. Since the May 1986 rating decision the Veteran has testified on the record before a Veterans Law Judge in November 2010 regarding this issue. Specifically the Veteran testified that while he was in-service he was sent to Walter Reed National Military Medical Center in Washington, DC where a physician told him that his preexisting right hand injury had been aggravated. The physician apparently attributed the aggravation specifically to the Veteran's PT duties. Review of the record reveals that these records have not yet been associated with the Veteran's claims file. The Board finds this evidence "new" in that it had not been previously associated with the Veteran's claims file. Moreover, the evidence is "material" because it relates to an unestablished fact necessary to substantiate the claim, namely that the Veteran's preexisting right hand injury may have been aggravated by his service. Thus, the Veteran's claim will be reopened. As will be discussed below, further development is required on the reopened claim of service connection for a back disability. ORDER New and material evidence having been received; the claim for service connection for status post, injury right hand is reopened. To that extent, alone, the appeal is allowed. REMAND I. Service Connection Additional development is necessary prior to further disposition of the Veteran's service connection claim for status post, injury right hand. The Veteran contends that he received treatment at Walter Reed where a physician stated that his preexisting right hand injury was aggravated by service. Review of the Veteran's claims file indicates that these records have not been obtained. The Board is aware that typically, in-service hospital records are archived separate and apart from service treatment records. To date, there has been no attempt to determine whether the reported in-patient records of hospitalization exist. Therefore, upon remand, action should be taken to request and associate with the file any service hospital records from Walter Reed concerning the Veteran. Should the records request result in the AOJ obtaining evidence relevant to the Veteran's service connection claim, the Veteran should be afforded a VA examination to address whether there is clear and unmistakable evidence that any preexisting right hand disability was not aggravated by service. II. Higher Evaluation Additional development is necessary prior to further disposition of the Veteran's increased rating claims for service-connected status post removal of ingrown toenail, right foot and service-connected residuals of laceration to the right thumb. A. Ingrown toenail right foot. Pursuant to the Board's prior remand the Veteran was afforded a VA examination in February 2015. The VA examiner described the pertinent physical findings of the Veteran's right toe as manifesting as "remote avulsed bilateral first toe nails that have partially grown back" and further provided that there was "no infection, tenderness, or disfiguration noted." Regarding functional impact the VA examiner indicated that there was no impact on the Veteran's ability to work. Under his remarks the VA examiner repeated his aforementioned conclusions. In his testimony at the November 2010 hearing the Veteran indicated that he experienced throbbing pain in his toes that would "shoot back up [his] legs." The Veteran is competent to state the pain he experiences. As the February 2015 VA examination and opinion did not address the Veteran's reported symptoms of pain in his toes the Board finds the examination and opinion to be inadequate for rating purposes and an addendum opinion is required. On remand any addendum opinion offered must address the Veteran's reported pain symptoms and determine whether it is a manifestation of his service-connected status post removal of ingrown toenail, right foot. B. Residuals of laceration to the right thumb. Review of the Veteran's claims file indicates that the Veteran has had two examinations regarding his service-connected residuals of laceration to the right thumb. The first was conducted in April 2006 and the second was conducted in April 2010. The Veteran's service-connected residuals of laceration to the right thumb have not been examined since April 2010. In the Veteran's November 2010hearing testimony he described his right thumb symptoms as getting worse, specifically endorsing decreased range of motion. The VA examinations of record are conflicting regarding limitations of range of motion of the Veteran's right thumb. Specifically the April 2006 examination found pain on active range of motion in both the interphalangeal and metacarpal joints. Further physical examination found that there was a gap between thumb pad and tips of the fingers on the right hand on attempted opposition of thumb and fingers, less than one inch, and that there was abnormal hand strength and dexterity in the right hand manifested by moderate effects on grasping, pushing, pulling writing, and touching, and mild effects on twisting and probing. The April 2010 examination findings are directly contradictory. As the VA examinations of record contain contradictory findings, and the Veteran has not been examined since April 2010, the Board finds that a new VA examination is required to determine the current nature and severity of the Veteran's service-connected residuals of laceration to the right thumb. III. TDIU The Veteran filed a specific claim for TDIU that was denied in a July 2015 rating decision because he failed to submit a completed VA Form 21-8940, Application for TDIU. Deferred rating actions in the claims folder subsequent to that rating decision note the Veteran's request for reconsideration of the rating decision, but the RO noted that the TDIU claim was part of the pending appeal. The TDIU claim is inextricably intertwined with the claims on appeal; thus, adjudication of the TDIU issue will be deferred until the above-noted issues are adjudicated. See Harris v. Derwinski, 1 Vet. App. at 183 (1990). On remand, the Veteran should be asked to submit a completed VA Form 21-8940. Accordingly, the case is REMANDED for the following action: 1. Take all appropriate action to obtain records of any inpatient hospitalization during service, to include from Walter Reed. 2. Provide the Veteran with a VA Form 21-8940, Application for TDIU and request that he submit the completed form, with all appropriate information. Thereafter, take all appropriate action on the TDIU claim. 3. If any hospitalization records from Walter Reed are obtained pertaining to the right hand, schedule the Veteran for a VA examination. Copies of all pertinent records should be forwarded to the examiner for review. All indicated testing should be carried out and the results recited in the examination report. After reviewing the record, the examiner should answer the following: Does the evidence of record clearly and unmistakably (i.e., it is undebatable) show that the Veteran's preexisting right hand injury was not aggravated by service or that any increase in disability was due to the natural progression of the disease? Please identify any such evidence with specificity. The VA examiner is informed that the "clear and unmistakable" evidence standard requires that the "no aggravation" result be "undebatable." This means that the evidence cannot be misinterpreted or misunderstood. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation and note what, if any, additional evidence would permit such an opinion to be made. 3. After completion of the foregoing, contact the VA examiner who examined the Veteran in February 2015 in connection with his claim for an increased rating for service-connected status post removal of ingrown toenail, right foot and request an addendum opinion (with examination only if deemed necessary by the provider). The claims file should be made available to and reviewed by the examiner and, if examination is deemed necessary, all appropriate tests should be conducted. The examiner should discuss the Veteran's lay statements regarding pain in his toes and determine whether the pain is a symptom of the Veteran's service-connected status post removal of ingrown toenail, right foot. The examiner must explain the rationale for all opinions in detail, citing to supporting clinical data and/or medical literature, as appropriate. If an opinion cannot be provided, the examiner should indicate why 4. Schedule the Veteran for the appropriate VA examination to determine the nature, extent, and severity of the Veteran's service-connected residuals of laceration to the right thumb. Copies of all pertinent records from the Veteran's eFolders should be made available to the examiner. All indicated tests should be performed. The examiner is requested to delineate all symptomatology associated with, and the current severity of, the residuals of laceration to the right thumb. The examiner should consider, and discuss as necessary, the extent of the initial injury in identifying all current manifestations, to include whether any loss of motion or strength is related to that initial injury. The appropriate DBQ should be filled out for this purpose, if possible. 5. Then, readjudicate the Veteran's claim. If any benefit sought on appeal remains denied, the appellant and his representative should be provided a supplemental statement of the case and afforded an opportunity to respond. The case should be returned to the Board for 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). 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. §§ 5109B, 7112 (West 2014). ______________________________________________ M.E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs