Citation Nr: 18141275 Decision Date: 10/10/18 Archive Date: 10/10/18 DOCKET NO. 14-35 350 DATE: October 10, 2018 ORDER New and material evidence has been submitted to reopen a previously denied claim of entitlement to service connection for bilateral elbow tendonitis. REMANDED Entitlement to service connection for bilateral elbow tendonitis is remanded. FINDINGS OF FACT 1. An unappealed November 1992 rating decision denied service connection for bilateral elbow tendonitis. The Veteran submitted a timely notice of disagreement (NOD) to the rating decision, but did not submit a timely substantive appeal to the Board of Veterans’ Appeals (Board) following issuance to her of a statement of the case (SOC). 2. The evidence received since the November 1992 rating decision relates to an unestablished fact necessary to substantiate the claim for service connection for bilateral elbow tendonitis. CONCLUSIONS OF LAW 1. The November 1992 rating decision, which denied service connection for bilateral elbow tendonitis is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156, 20.1103. 20.302 (2018). 2. Evidence submitted after the November 1992 decision relates to an unestablished fact necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1986 to October 1986 and from February 1991 to May 1992. In August 2016. This matter is before the Board on appeal from a July 2013 rating decision of a Department of Veterans Affairs (VA) RO. The Veteran testified at a videoconference hearing before the undersigned Veterans’ Law Judge. A written transcript of the hearing has been prepared and incorporated into the evidence of record. 1. New and Material Evidence to Reopen In general, decisions of the RO that are not appealed in the prescribed time period are considered final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. § 20.1103 (2017). A claimant may reopen a final decision by submitting new and material evidence. 38 C.F.R. § 3.156 (2018). New and material evidence is existing evidence, which has not been previously submitted to agency decision makers and that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156 (2018). 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) (2018). Additionally, evidence supporting a new theory of entitlement can be new and material evidence. Boggs v. Peake, 520 F.3d 1330, 1336-37 (Fed. Cir. 2008). 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 received 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 VA’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Regardless of the RO’s determination as to whether new and material evidence had been received, the Board must address the issue of the receipt of new and material evidence in the first instance because it determines the Board’s jurisdiction to reach the underlying claim and to adjudicate the claim de novo. See Woehlaert v. Nicholson, 21 Vet. App. 456, 460-61 (2007) (citing Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996)). If the Board determines that the evidence submitted is both new and material, it must reopen the case and evaluate the claim in light of all the evidence. Justus v. Principi, 3 Vet. App. 510, 512 (1992). Such evidence is generally presumed to be credible for the purpose of determining whether the case should be reopened; once the case is reopened, the presumption as to the credibility no longer applies. Id. at 513. The Veteran was initially denied service connection for bilateral elbow tendonitis in a November 1992 rating decision. The decision found the evidence provided indicated the condition responsible for arm pain and numbness pre-existed service and was not aggravated therein. The Veteran was notified of the rating decision and timely submitted a NOD, but did not timely submit a substantive appeal following issuance to her of a SOC. As such, the November 1992 rating decision became final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2018). Evidence received since the November 1992 rating decision includes the Veteran’s August 2016 hearing testimony where she stated that her current condition was caused by the military sexual trauma she suffered during her second period of service. In addition, there is a letter from Dr. Jones, received January 2014, noting that after reviewing the Veteran’s medical history, it is at least as likely as not that the present condition was aggravated by service. Additionally, there are lay statements provided by the Veteran’s husband and sister explaining that they remember the Veteran complaining about shoulder, neck, and arm pain since September of 1992. The Board finds that the new evidence relates to an unestablished fact necessary to substantiate the claim of service connection for bilateral elbow tendonitis, namely aggravation of bilateral elbow tendonitis in service, and therefore raises a reasonable possibility of substantiating such claim. See Shade, 24 Vet. App. at 117-18. Thus, the Board finds that the additional evidence is both new and material, and that the claim for entitlement to service connection for bilateral elbow tendonitis is reopened. REASONS FOR REMAND Entitlement to service connection for bilateral elbow tendonitis. VA must afford a veteran an examination and/or obtain an opinion when it is necessary to make a decision on the claim. 38 U.S.C. § 5103A(d) (2012); 38 C.F.R. § 3.159(c)(4) (2018). In disability compensation (service connection) claims, VA must provide a medical examination and medical opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran’s service or with another service-connected disability, but (4) insufficient competent medical evidence on file for VA to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81-82 (2006). To that end, when VA undertakes to either provide an examination or to obtain an opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran contends that she is entitled to service connection for bilateral elbow tendonitis because of military sexual trauma she experienced in 1991and that while she had tendonitis prior to her second period of service, it resolved and she had no problems prior to the trauma. In addition, she claims secondary service connection due to cervical spine and shoulder disorder. The Veteran’s service treatment records (STRs) show that she was diagnosed with bilateral elbow tendonitis in 1988, but subsequently that she was sound and had no elbow issues during her entrance examination in 1990. However, in the STRs, the Veteran has contradictory lay statements claiming that her elbow condition was caused three to four years before she entered her second period of service in 1990. In addition, in 1999 a private physician, Dr. Jones, wrote a letter opining that it is at least as likely as not that the Veteran’s present condition was aggravated by service. Recently, in contrast, the Veteran provided personal testimony explaining that her tendonitis in 1988 was resolved and that her current tendonitis was caused by military sexual trauma she experienced in August 1991. While the Veteran already was provided a general medical VA exam in September 1992 diagnosing her with bilateral elbow tendonitis, the examiner did not opine whether the Veteran’s bilateral elbow tendonitis was aggravated during service or that the military sexual trauma caused the injury. The conflicting evidence triggers VA’s duty to assist, and, thus, this matter must be remanded for a VA examination and an opinion to determine whether or not the Veteran’s bilateral elbow tendonitis is etiologically related to her military service. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matter is REMANDED for the following action: 1. Obtain any outstanding VA or private treatment records (obtaining authorization from the Veteran as required), clearly document any response received, and associate any such records with the claims file. 2. Following completion of the above, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of her bilateral elbow tendonitis. The examiner must opine whether the bilateral elbow tendonitis clearly and unmistakably (undebatable) preexisted the Veteran’s service. If the examiner finds it did clearly and unmistakably preexist service, the examiner must opine whether it was clearly and unmistakably not aggravated by service. If the examiner finds that the disorder either did not clearly and unmistakably preexist service, and/or was not clearly and unmistakably aggravated by service, the examiner must opine whether it is at least as likely as not (50 percent or greater probability) that the bilateral elbow disorder is related to an in-service injury, event, or disease, including the military sexual trauma the Veteran reported to have suffered during her second period of service. BARBARA B. COPELAND Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Imam, Associate Counsel