Citation Nr: 18140756 Decision Date: 10/05/18 Archive Date: 10/05/18 DOCKET NO. 18-41 722 DATE: October 5, 2018 ORDER The application to reopen a claim of entitlement to service connection for right thumb arthritis is granted. Entitlement to service connection for right thumb arthritis is denied. FINDINGS OF FACT 1. The evidence obtained since a November 2012 final rating decision includes a diagnosis of right thumb arthritis and raises a reasonable possibility of substantiating the claim of entitlement to service connection for right thumb arthritis. 2. The service treatment records contain no right thumb complaints, the Veteran was not shown to have right thumb arthritis until more than 50 years after discharge from service and there is no probative evidence linking the Veteran’s current right thumb arthritis to service. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claim of entitlement to service connection for right thumb arthritis. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2017). 2. The criteria for entitlement to service connection for right thumb arthritis have not been met. 38 U.S.C. § 1131 (2012); 38 C.F.R. § 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1961 to November 1963. Although the RO considered the Veteran’s claim on a de novo basis, the Board is required to first consider whether new and material evidence had been presented before the merits of the claim can be considered. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Accordingly, and given the Board’s favorable disposition of the petition to reopen the claim, the Board has characterized the appeals as encompassing the issues set forth on the title page. Service Connection [Insert Text] 1. Whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for right thumb arthritis. The Veteran seeks service connection for right thumb arthritis. The RO denied service connection for a right thumb disorder in November 2012. The Veteran did not appeal the decision. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. § 20.1103 (2017). Additionally, new and material evidence had not been received prior to the expiration of the appeal period following this rating decision. 38 C.F.R. § 3.156(b). Therefore, the November 2012 rating decision is now final, and the Veteran’s claim for service connection may only be reopened if new and material evidence is received. “New” evidence means existing evidence not previously submitted to agency decision makers. “Material” evidence means 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, and must raise a reasonable possibility of substantiating the claim. See Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). When evaluating the materiality of newly-submitted evidence, the Board should not focus solely on whether the evidence remedies the principal reason for denial in the last prior decision, but rather should consider whether such evidence, in its entirety, could at least trigger the duty to assist by providing a medical opinion. See Shade, 24 Vet. App. at 117. Moreover, when determining whether a claim should be reopened, the credibility of any newly submitted evidence is to be presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The November 2012 rating decision denied the Veteran’s claim on the basis that there was no evidence of a right thumb injury during service. The evidence of record at that time was silent to any right thumb complaints or diagnoses either during or after service. The Veteran submitted his application to reopen his right thumb claim in March 2016. The newly received evidence includes a February 2016 VA x-ray report that revealed severe degenerative changes of the right thumb. As this new medical evidence indicates a current right thumb disability, which was not shown at the time of the November 2012 final rating decision, the evidence is supportive of the Veteran’s claim and it is material to his claim. As new and material evidence has been received, the claim for service connection for a right thumb disorder is reopened.] 2. Entitlement to service connection for right thumb arthritis. The Veteran first submitted a claim for service connection for a right thumb disorder in April 2012. At that time, he reported that he had a “Garand Thumb,” indicating that he had injured his thumb while using an M1 rifle. The Veteran’s current claim for service connection for a right thumb arthritis was received in March 2016. The Veteran asserted that he had right thumb arthritis due to injuring his thumb while loading an M1 rifle. On his January 2017 notice of disagreement the Veteran reported that, at the time his sergeant gave him Band-Aids. On his August 2016 VA Form 9, the Veteran reported that his thumb was injured multiple times during basic training. He said that he went into the Company “office” and was seen about his thumb. He noted that, as a Private, he had no control over whether or not the information was added to his file. He asserted that he was being penalized for someone who failed to do their duty. The service treatment records (STRs) reveal no right thumb complaints or treatment. On his September 1963 report of medical history in preparation for separation from service, the Veteran indicated that he had never had painful or swollen joints. A February 2016 VA x-ray report notes that the Veteran has severe degenerative changes of the right thumb, with first MCP subluxation, that could be due to recent or old injury, or secondary to degenerative changes. The question for the Board is whether the Veteran has right thumb arthritis that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has current diagnoses of right thumb arthritis, the preponderance of the evidence weighs against finding that the Veteran’s current right thumb arthritis began during service or is otherwise related to service. 38 U.S.C. 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. 3.303(a), (d). There is no competent evidence documenting the presence of arthritis of the right thumb within a year of discharge from service. Consequently, the Veteran is not entitled to service connection for arthritis of the thumb on a presumptive basis for a chronic disease that is noted within a year of discharge from service. 38 C.F.R. 3.307, 3.309(a). The Board finds that the Veteran’s reports of hurting his right thumb during service to be credible. However, the fact remains that any such injuries were not deemed serious enough to result in medical treatment. While the Veteran asserts that his current right thumb arthritis is related to in-service injuries, he is not competent to provide a nexus opinion in this case. The issue is medically complex, as it requires medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). (CONTINUED ON NEXT PAGE)   The Veteran was discharged from service in 1963 and there are no complaints or records of medical treatment for a right thumb disability prior to the Veteran’s April 2012 claim for right thumb disability. VA treatment records dated from September 2009 to April 2012 contain no right thumb complaints. The Board further notes that the VA medical records show that the Veteran has arthritis of both thumbs and none of the medical evidence relates the Veteran’s right thumb arthritis to service. As noted above, there is no documentation of a right thumb injury during service and the Veteran reported just prior to separation from service that he did not have any painful joints. Furthermore, there is no record of the Veteran reporting any right thumb problems for more than 48 years after discharge from service. Based on the above, the Board finds that the preponderance of the evidence is against his claim and service connection for right thumb arthritis is not warranted. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. E. Jones, Counsel