Citation Nr: 1802253 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 14-25 191 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for residuals of left wrist surgery. 2. Entitlement to service connection for residuals of left wrist surgery. 3. Entitlement to a compensable disability rating for bilateral hearing loss. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Heather J. Harter, Counsel INTRODUCTION The Veteran served on active duty from October 1974 to December 1976. This matter comes before the Board of Veterans' Appeals (Board) from an August 2013 RO decision. In February 2017, the Veteran presented sworn testimony in support of his appeal during a hearing before the undersigned Veterans Law Judge. Shortly after the hearing, the Veteran and his representative submitted additional documentary evidence along with a waiver of initial RO review. The issues of entitlement to service connection for residuals of left wrist surgery and entitlement to a compensable disability rating for bilateral hearing loss are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The evidence added to the record with regards to the Veteran's left wrist disability since November 1979 is not cumulative or redundant, and raises a reasonable possibility of substantiating the claim. CONCLUSION OF LAW New and material evidence to reopen the claim for service connection for bilateral shoulder disorder has been received, and the claim is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. §§ 3.156 (a), 3.159 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION According to the Veteran's service record, when he was examined prior to entrance into service, he had recently lacerated his left forearm; however, there was no major vessel or nerve damage and the wound was healing well. Several months later, in February 1975, the Veteran underwent surgery for a ganglion cyst on his left wrist. Other than a complaint of pain in the area in March 1975, the Veteran's service treatment records are negative for complaints or residuals following the surgery. He relates that he is now having pain in the wrist and occasional loss of grip in his left hand, and he believes these current symptoms are related to the inservice surgery. Following the Veteran's discharge from service, he filed a claim for service connection for residuals of the left wrist surgery. In November 1979, the RO denied the claim, finding that the Veteran had had a pre-existing injury of his left forearm, and that the ganglion cyst surgery in service was remedial only, with no residual disability. The Veteran did not appeal this decision and it thus became final one year after he was notified of the decision. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. In October 2012, the Veteran again applied for service-connected compensation for "residuals of an injury to his left wrist." The RO denied the claim in August 2013 finding that the Veteran had not submitted new and material evidence sufficient to reopen the previously-denied claim. Available VA treatment records show pain in the Veteran's left wrist as an ongoing problem. During the February 2017 hearing testimony he testified that prior to service he had severed a tendon in a glass door (other records show he was working in a glass factory prior to service), that he had injured his wrist during Advanced Individual Training, and that the ganglion cyst popped up the same day as the injury. RO decisions are final and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a). The claimant has one year from notification of an RO decision to initiate an appeal by filing a notice of disagreement with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C. § 7105(b) and (c); 38 C.F.R. §§ 3.160(d), 20.200, 20.201, 20.202, 20.302(a). If new and material evidence is received during an applicable appellate period following a RO decision (one year for a rating decision and 60 days for a statement of the case), the new and material evidence will be considered as having been filed in connection with the claim that was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). Thus, under § 3.156(b), "VA must evaluate submissions received during the relevant [appeal] period and determine whether they contain new evidence relevant to a pending claim, whether or not the relevant submission might otherwise support a new claim." Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011). Generally, a claim which has been denied in an unappealed Board decision or an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence means evidence not previously submitted. Material evidence means existing evidence that by itself or when considered with previous evidence 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 last final decision, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). "[N]ew and material evidence" under 38 C.F.R. § 3.156(b) has the same meaning as "new and material evidence" as defined in 38 C.F.R. § 3.156(a). See Young v. Shinseki, 22 Vet. App. 461, 468 (2011). In Shade v. Shinseki, 24 Vet. App 110 (2010), the Court interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." Additionally, for the purpose 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). Service connection is established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during periods of active service. 38 U.S.C. § 1110. In general, service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). New evidence received since the 1979 denial includes the recent VA treatment records and the Veteran's hearing testimony. Especially his testimony leads us to suspect that the ganglion cyst which was surgically removed in service was unrelated to the glass lacerations he sustained prior to service. As the RO in 1979 assumed the injuries were the same, this new view of the evidence alone raises a reasonable possibility of substantiating the claim. The new evidence was not previously considered by agency decision-makers and is neither redundant nor cumulative, when considered in conjunction with the previous evidence of record. Furthermore, it relates to an unestablished fact necessary to substantiate the claim. Therefore, the Veteran's claim for entitlement to service connection for residuals of surgery to the left wrist is reopened. Shade. Having reopened the claim, however, we are unable to render a decision without further information. This deficit is addressed in the remand which follows. ORDER New and material evidence having been submitted, the appeal for entitlement to service connection for residuals of left wrist surgery is reopened; to this extent only, the appeal is granted. REMAND Prior to reviewing the Veteran's claim for service connection for residuals of left wrist surgery in service, several pieces of evidentiary development must be accomplished. The report of the actual surgery in service is not of record. Clinical hospital records are stored separately from outpatient treatment records, and it does not appear that the records of the Veteran's surgery were ever requested. VA medical records are deemed to be constructively of record in proceedings before the Board and should be obtained prior to further review of the claims file. Bell v. Derwinski, 2 Vet. App. 611 (1992). Currently his VA electronic claims file contains VA treatment records from 2013 and 2014. The file does not currently contain any evidence regarding his left wrist, however. Because the painful left wrist is listed as a problem on his VA problem list, it would have been medically evaluated at least once by VA. Additionally, as the Veteran continues to receive VA medical care, his records should be updated for the file. After these records are obtained, the Veteran should be provided with a VA examination so that the extent of his current left wrist impairment can be ascertained, and if possible, correlated with the service records to identify a nexus to the inservice cyst surgery. Further evidentiary development needs to be accomplished with regard to the appeal for a compensable disability rating for the Veteran's bilateral hearing loss, as well. The Veteran's VA treatment records are required for this purpose as well. The Veteran submitted some audiologic records from The Hearing Center, dated in July and August 2013, which contain word recognition testing results. The exact test which was used to obtain these results is not identified, however. Therefore, upon remand, the Hearing Center should be contacted to determine which test was used. Lastly, the Veteran should be provided with another VA examination to determine his current bilateral hearing acuity. Accordingly, the case is REMANDED for the following action: 1. The RO should request complete documentation of the Veteran's ganglion cyst surgery at Fort Leonard Wood in February 1975 through official channels. 2. The RO should obtain all records of VA medical treatment afforded to the Veteran at the Huntington VA Medical Center and all related clinics prior to 2013 and subsequent to 2014 for inclusion in the file. 3. After obtaining all records requested above, the Veteran should be provided with a VA examination to identify all current impairment involving his left wrist and to determine whether any current impairment is related to the inservice surgery. All tests and studies deemed helpful by the examiner should be performed in conjunction with the examination. The claims folder must be made available to the examiner for review. The examiner is requested to carefully review the service treatment records and determine whether any current symptomatology, to include scar residuals, is related to the ganglion cyst surgery. In so doing, the examiner is requested to ascertain, as nearly as possible, the residuals of the pre-service glass injury, versus the inservice cyst surgery. The complete rationale for all opinions expressed should be fully explained. 4. The RO should contact the Hearing Center to ascertain which word recognition test was used to test the Veteran's word recognition in July and August 2013. 5. The Veteran should be afforded a VA audiologic examination to identify the extent of his current bilateral hearing impairment. All appropriate tests and studies should be accomplished. 6. After the development requested above has been completed, the RO should again review the record. If either benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. 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 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 (2012). ______________________________________________ T. MAINELLI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs