Citation Nr: 18140750 Decision Date: 10/05/18 Archive Date: 10/05/18 DOCKET NO. 15-21 777 DATE: October 5, 2018 ORDER The previously denied claims for service connection for disabilities of the hands and right knee are reopened; to this limited extent, the appeal is granted. REMANDED Entitlement to service connection for disabilities of the elbows, hands, right knee, and ankles (claimed as “arthritis upper and lower”) is remanded. FINDINGS OF FACT 1. By a decision entered in November 2006, the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa, in pertinent part, denied service connection for disabilities of the right hand and right knee; the Veteran was advised of the RO’s decision, and of his appellate rights. 2. The Veteran did not initiate an appeal of the RO’s November 2006 decision during the one-year period following the mailing of notice of that decision; additional evidence (service treatment records) was received during that time, but the evidence contained nothing pertinent to his right hand or right knee disabilities. 3. By a decision entered in November 2007, the RO in Des Moines denied service for disability of the left hand; the Veteran was advised of the RO’s decision, and of his appellate rights. 4. The Veteran did not initiate an appeal of the RO’s November 2007 decision during the one-year period following the mailing of notice of that decision; nor was any new and material evidence received within a year. 5. New evidence received since the time of the RO’s November 2006 and November 2007 decisions, when considered with the evidence previously of record, relates to unestablished facts necessary to substantiate the Veteran’s claims for service connection for disabilities of the hands and right knee and raises a reasonable possibility of substantiating the claims. CONCLUSIONS OF LAW 1. The RO’s November 2006 denial of service connection for disabilities of the right hand and right knee is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103. 2. The RO’s November 2007 denial of service connection for disability of the left hand is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.200, 20.201, 20.302, 20.1103. 3. New and material evidence has been received to reopen the Veteran’s claims for service connection for disabilities of the hands and right knee. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Navy from April 1991 to May 1996 and from July 1999 to July 2004. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a May 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The RO, in pertinent part, denied service connection for “arthritis upper and lower” and a right knee disability. In August 2018, the Veteran was notified of the time and place of a Board hearing he requested in connection with the present appeal. See 38 C.F.R. § 20.704(b). He failed to report, however, and no motion for rescheduling has been received. Accordingly, the Board will process his appeal as though the request for hearing has been withdrawn. 38 C.F.R. § 20.704(d). As discussed in further detail below, the RO has previously denied service connection for disabilities of the hands and right knee in unappealed rating decisions entered in November 2006 and November 2007. The matter currently before the Board emanates, in part, from January and December 2012 claims from the Veteran wherein he indicated that he was seeking compensation for, among other things, disabilities of the hands and right knee. Accordingly, as an initial jurisdictional matter, the Board must determine whether new and material evidence has been received to reopen those claims. See 38 U.S.C. § 7104(b); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Whether new and material evidence has been received to reopen claims for service connection for disabilities of the hands and right knee. Under applicable law, service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). In the present case, the evidence reflects that the RO in Des Moines, Iowa denied the Veteran’s claims for service connection for disabilities of the hands and right knee by a decision entered in November 2006. Following review of the claims file as it then existed, the RO concluded that the Veteran did not have current disabilities of the hands or right knee. The Veteran was advised of the RO’s decision, and of his appellate rights, by letter dated later that same month. Additional service treatment records were subsequently received in September 2007. However, those records were pertinent only to the left hand. In a November 2007 rating decision, the RO reconsidered and denied the Veteran’s claim for service connection for a left hand disability, still finding no evidence of a current disability. See 38 C.F.R. § 3.156(c) (indicating that a previously denied claim is to be reconsidered on the basis of newly received service records if the records are relevant). The Veteran was advised of the RO’s decision, and of his appellate rights, by letter dated later that same month. No other evidence was received during the one-year periods following mailing of notice of the RO’s November 2006 and November 2007 decisions. See 38 C.F.R. § 3.156(b). Nor did the Veteran initiate an appeal of either decision within that time frame. As a result, the RO’s decisions became final. 38 U.S.C. § 7105; 38 C.F.R. § 20.200, 20.201, 20.302, 20.1103. Accordingly, the claims may be considered on the merits only if new and material evidence has been received since the time of the prior adjudications. 38 U.S.C. § 5108; Jackson, supra. Evidence is considered “new” if it was not previously submitted to agency decision makers. “Material” evidence is existing 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 prior final denial of the claim sought to be reopened. 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the “credibility of the evidence is to be presumed.” Justus v. Principi, 3 Vet. App. 510, 513 (1992). Here, the evidence received since the time of the RO’s November 2006 and November 2007 decisions includes the report of a November 2012 VA examination which reflects that the Veteran has tenosynovitis of both hands. The evidence also includes a report from the Alabama Bone and Joint Clinic which reflects a clinical impression of degenerative joint disease (DJD) of the right knee. The Board concludes that this evidence is new, in that it was not before the RO when the Veteran’s claims were previously denied. It is also material in that it relates to unestablished facts necessary to substantiate the claims (i.e., that he has current disabilities of the hands and right knee), and, presuming its credibility for new and material evidence purposes, raises a reasonable possibility of substantiating the claims. See, e.g., Shade v. Shinseki, 24 Vet. App. 110 (2010). It is therefore new and material. The claims for service connection for disabilities of the hands and right knee are reopened. REASONS FOR REMAND Entitlement to service connection for disabilities of the elbows, hands, right knee, and ankles (claimed as “arthritis upper and lower”) is remanded. It appears from the Veteran’s submissions that he is seeking to establish service connection for disabilities of the elbows, hands, right knee, and ankles. The record reflects that the Veteran is receiving ongoing treatment from a private rheumatologist. It also reflects that he recently underwent hand surgery at St. Vincent’s. Because such records, if obtained, could bear on the outcome of the Veteran’s appeal, efforts must be made to procure them. See, e.g., 38 C.F.R. § 3.159(e)(2) (if VA becomes aware of the existence of relevant records before deciding a claim, VA will, among other things, request that the claimant provide a release for the records). The Veteran maintains, in part, that his right knee disability is “residual to” his service-connected left knee disability. Thus far, no medical opinion has been procured as to that matter. Neither has a medical opinion been obtained as to the likelihood that the current disabilities of his elbows and/or ankles are related to service or a service-connected disability. Notably, the Veteran’s service records reflect, among other things, that he injured his right elbow during service in June 1992, while arm wrestling; that he reported right ankle pain with heavy physical training in June 1995, status post fracture, with some deformity being noted on examination; that a second-degree right ankle sprain with avulsion fracture was noted during service in March 1996; that he was treated for a right knee contusion in October 2000; that he was treated with a wrap for a left elbow contusion in November 2000; that he was noted to be walking with a limp due to a right knee contusion that same month; and that he was again assessed with a right ankle sprain in September 2001. The record shows that the Veteran has been diagnosed with rheumatoid arthritis, and he has advanced argument to the effect that VA has not given adequate consideration to the relationship between his current difficulties and injuries occurring on active duty. An examination is warranted. McLendon v. Nicholson, 20 Vet. App. 79 (2006). This matter is REMANDED for the following action: 1. Ask the Veteran to provide releases for updated records of treatment from his private rheumatologist and relevant records of treatment from St. Vincent’s, and to identify, and provide appropriate releases for, any other care providers who may possess new or additional evidence pertinent to the issues on appeal. If he provides the necessary releases, assist him in obtaining the records identified, following the procedures set forth in 38 C.F.R. § 3.159. Any new or additional (i.e., non-duplicative) evidence received should be associated with the record. If any of the records sought are not available, the record should be annotated to reflect that fact, and the Veteran and his representative should be notified. 2. Obtain copies of records pertaining to any relevant VA treatment the Veteran has received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained should be associated with the record. 3. After the foregoing development has been completed to the extent possible, arrange to have the Veteran scheduled for an examination of his elbows, right knee, and ankles. The examiner should review the record. All indicated tests should be conducted and the results reported. After examining the Veteran and reviewing the record, together with the results of any testing deemed necessary, the examiner should identify any disabilities of the elbows, right knee, and ankles that the Veteran has had at any time since January 2012 (when he filed his claim for service connection), to include any such disabilities associated with rheumatoid arthritis. Then, with respect to each such disability, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that the disability had its onset in, or is otherwise attributable to, the Veteran’s period of active service. In so doing, the examiner should discuss the medical significance, if any, of the fact that the Veteran injured his right elbow during service in June 1992, while arm wrestling; that he reported right ankle pain with heavy physical training in June 1995, status post fracture, with some deformity being noted on examination; that a second-degree right ankle sprain with avulsion fracture was noted during service in March 1996; that he was treated for a right knee contusion in October 2000; that he was treated with a wrap for a left elbow contusion in November 2000; that he was noted to be walking with a limp due to a right knee contusion that same month; and that he was again assessed with a right ankle sprain in September 2001. If it is the examiner’s opinion that it is unlikely that any identified disability of the elbows, right knee, and/or ankles had its onset in, or is otherwise attributable to, service, the examiner should offer a further opinion as to whether it is at least as likely as not that such disability has been (a) caused or (b) aggravated by the Veteran’s service-connected disabilities. With respect to the right knee and ankles, the examiner should specifically address the likelihood that disabilities of those joints, if any, have been caused or aggravated by his service-connected left knee and/or low back disabilities, and/or associated radiculopathy, to include as a result of altered gait mechanics. A complete medical rationale for all opinions expressed must be provided. 4. After completing the above, and any other development as may be indicated by any response received as a result of the actions taken in the preceding paragraphs, the Veteran’s claims should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. DAVID A. BRENNINGMEYER Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Boyea, Law Clerk