Citation Nr: 1806201 Decision Date: 01/31/18 Archive Date: 02/07/18 DOCKET NO. 12-09 410 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Whether new and material evidence has been received in order to reopen a claim for service connection for bilateral hand arthritis. 2. Whether new and material evidence has been received in order to reopen a claim for service connection for bilateral knee arthritis. 3. Entitlement to service connection for bilateral hand arthritis. 4. Entitlement to service connection for bilateral knee arthritis. REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD Erin J. Carroll, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1964 to December 1967. These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. Jurisdiction has since been transferred to the RO in Louisville, Kentucky. In March 2017, the Board remanded this matter to afford the Veteran a hearing. In June 2017, the Veteran testified before the undersigned Veterans Law Judge at a videoconference hearing. A transcript of the hearing has been associated with the record. FINDINGS OF FACT 1. A final May 2007 rating decision denied the Veteran's claim for service connection for bilateral hand and knee arthritis because the evidence failed to demonstrate a nexus between the disabilities and military service; although notified of the decision, the Veteran did not express an intent to appeal the decision, and new and material evidence was not added within one year of that decision. 2. Additional evidence associated with the claims file since the May 2007 rating decision is not cumulative or redundant of the evidence of record at the time of the prior denial, it relates to unestablished facts necessary to substantiate his claim for service connection for bilateral hand arthritis, and it raises a reasonable possibility of substantiating the claim. 3. Additional evidence associated with the claims file since the May 2007 rating decision is not cumulative or redundant of the evidence of record at the time of the prior denial, it relates to unestablished facts necessary to substantiate his claim for service connection for bilateral knee arthritis, and it raises a reasonable possibility of substantiating the claim. 4. The evidence is in relative equipoise as to whether the Veteran's bilateral hand arthritis is related to his military service. 5. The evidence is in relative equipoise as to whether the Veteran's bilateral knee arthritis is related to his military service. CONCLUSIONS OF LAW 1. The May 2007 rating decision that denied service connection for bilateral hand and knee arthritis is final. 38 U.S.C. § 7105 (c) (2012); 38 C.F.R. § 3.104, 20.302, 20.1103 (2017). 2. As evidence received since the May 2007 rating decision is new and material, the criteria for reopening the Veteran's claim for service connection for bilateral hand arthritis are met. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2017). 3. As evidence received since the May 2007 rating decision is new and material, the criteria for reopening the Veteran's claim for service connection for bilateral knee arthritis are met. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2017). 4. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for bilateral hand arthritis have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 5. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for bilateral knee arthritis have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. New and Material Evidence Rating actions are final and binding based on the 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 U.S.C. § 5108; 38 C.F.R. § 3.104 (a). The claimant has one year from the 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), (c); 38 C.F.R. § 3.160 (d), 20.200, 20.201, 20.202, 20.302(a) (2017). However, if new and material evidence is presented or secured, VA shall reopen and review the former disposition of the claim. 38 U.S.C. § 5108 (2012). "New and material evidence" is defined as evidence not previously submitted to the agency decision makers which is neither cumulative or redundant, which by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim, and which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). The United States Court of Appeals for Veterans Claims (Court) has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what evidence is new and material, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court further held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion. Id. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Veteran's claims for service connection for bilateral hand and knee arthritis were denied in a May 2007 rating decision. The RO determined that the evidence of record failed to demonstrate that the disabilities were incurred in or caused by service. At the time of the May 2007 rating decision, the evidence of record included service treatment records, post-service treatment records, and lay statements from the Veteran. The Veteran was notified of the decision and his appellate rights in May 2007. However, he did not file a notice of disagreement in response to the rating decision. No further communication regarding his claim was received until July 2009, when VA received his petition to reopen. Therefore, the May 2007 rating decision is final. 38 U.S.C. § 7105 (c); 38 C.F.R. § 3.104, 20.302, 20.1103. Evidence added to the record since the May 2007 rating decision includes the Veteran's testimony from the June 2017 Board hearing; additional VA treatment records; a December 2013 VA examination report; and several other medical opinions. Notably, an April 2011 VA treatment opinion rendered as well as medical opinions issued by a VA physician in October 2012; by Dr. T. Adamson in March 2014; by a VA physician's assistant in April 2015; and by Dr. B. Robinson. in May 2017 all indicate that the Veteran's bilateral hand and knee arthritis are related to injuries he incurred during his military service. The Board finds that such evidence is new because it was not before the RO at the time of the May 2007 rating decision. Furthermore, this evidence is material because when considered with the previous evidence of record it relates to an unestablished fact necessary to substantiate the Veteran's claims of entitlement to service connection; namely a possible relationship to his military service. Thus, the Board finds that the evidence submitted is both new and material, and the claims are reopened. II. Service Connection A. Applicable Law Service connection may be granted for a disability resulting from disease or injury incurred coincident with or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection generally requires evidence satisfying three criteria: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship ("nexus") between the present disability and the disease or injury incurred or aggravated during service. See Walker v. Shinseki, 708 F.3d 1331, 1333 (Fed. Cir. 2013); Hickson v. West, 12 Vet .App. 247, 253 (1999). In deciding whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). B. Facts and Analysis The December 2013 VA examination report noted a diagnosis of inflammatory arthritis of the hands and knees. Additionally, multiple VA treatment records have documented rheumatoid arthritis and severe degenerative joint disease of the bilateral hands and knees. Thus, the first element of direct service connection is met. At the June 2017 hearing, the Veteran testified that he injured his hands and knees in service when he fell 27 feet during a nighttime operation while aboard the USS Constellation in June 1966. Specifically, he stated that the exhaust of a nearby jet blew him off of the deck of the ship onto his hands and knees. He further reported that he believed his bilateral hand arthritis developed as a result of frequent boxing during service. The Board notes that a USS Constellation deck log, dated June 28, 1966, does document the Veteran's fall as he reported it at the June 2017 hearing. Additionally, a newspaper article submitted by the Veteran further supports his reports of boxing during his military service. The Board finds his testimony to be competent and credible, as the available documentation corroborates his reports of the June 1966 in-service injury and his participation in boxing while in the military. Therefore, the second element of service connection is met. Here, there is both probative medical evidence for and against the contention that the Veteran's bilateral hand and knee arthritis are etiologically related to his military service. In December 2013, the Veteran underwent a VA examination for his bilateral hand and knee arthritis. The examiner opined that the conditions were less likely than not related to military service, instead attributing the arthritic changes to possible calcium pyrophosphate deposition disease. She based her opinion on several x-rays demonstrating chondrocalinosis typical of such a condition, which she explained is a likely a genetic factor that is not caused by an injury. As the opinion was based on a review of the Veteran's history, an in-person examination, and is supported by a complete rationale, the Board places great probative weight on the December 2013 opinion. However, the Board notes that the Veteran has submitted several medical opinions in support of his claim. An April 2011 VA treatment record documented the provider's opinion that the Veteran's severe degenerative joint disease of both his hands and knees was directly and causally related to his in-service injuries. As he based this conclusion upon a review of the service treatment records and the Veteran's report of the June 1966 in-service injury, the Board places some probative weight this opinion. In March 2014, Dr. T. Adamson opined that the Veteran's bilateral hand and knee osteoarthritis was more likely than not caused by the in-service fall in June 1966. As he based this opinion on a thorough review of the Veteran's medical history, and supported his conclusion with a substantial amount of medical literature linking osteoarthritis and trauma from prior injuries, the Board places great probative weight on this opinion. Most recently, in a May 2017 opinion, Dr. Robinson opined that the Veteran's bilateral hand arthritis was more than likely related to his in-service trauma and boxing. He based this conclusion on a review of the Veteran's medical records, as well as his reports of boxing during service. The Board affords this opinion some probative weight. Although the December 2013 VA examiner attributed the Veteran's bilateral hand and knee arthritis to calcium pyrophosphate deposition disease, the Board nevertheless finds that the multiple positive medical opinions put the evidence at least in relative equipoise that the Veteran's in-service boxing, June 1966 fall, and his currently-diagnosed bilateral hand and knee arthritis are connected. Therefore, service connection for bilateral hand arthritis and bilateral knee arthritis is granted. ORDER New and material evidence having been received, the claim of entitlement to service connection for bilateral hand arthritis is reopened. New and material evidence having been received, the claim of entitlement to service connection for bilateral knee arthritis is reopened. Entitlement to service connection for bilateral hand arthritis is granted. Entitlement to service connection for bilateral knee arthritis is granted. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs