Citation Nr: 18151834 Decision Date: 11/20/18 Archive Date: 11/20/18 DOCKET NO. 16-38 489 DATE: November 20, 2018 ORDER The petition to reopen the previously denied claim of entitlement to service connection for arthritis of the right hand (also claimed as secondary to the service-connected disability of osteoarthritis, right thumb) is granted. The petition to reopen the previously denied claim of entitlement to service connection for arthritis of the left thumb (also claimed as secondary to the service-connected disability of osteoarthritis, right thumb) is granted. The petition to reopen the previously denied claim for entitlement to service connection for arthritis of the left foot (also claimed as secondary to the service-connected disability of osteoarthritis, right thumb) is granted. REMANDED Entitlement to service connection for arthritis of the right hand is remanded. Entitlement to service connection for arthritis of the left thumb is remanded. Entitlement to service connection for arthritis of the left foot is remanded. FINDINGS OF FACT 1. An unappealed June 2008 rating decision denied service connection for a right hand disability; new and material evidence was not received prior to expiration of the appeal period; subsequently received evidence relates to an unestablished fact to substantiate a claim for service connection for arthritis of the right hand. 2. An unappealed June 2008 rating decision denied service connection for a left thumb disability; new and material evidence was not received prior to expiration of the appeal period; subsequently received evidence relates to an unestablished fact to substantiate a claim for service connection for arthritis of the left thumb. 3. An unappealed June 2008 rating decision denied service connection for a left foot disability; new and material evidence was not received prior to expiration of the appeal period; subsequently received evidence relates to an unestablished fact to substantiate a claim for service connection for arthritis of the left foot. CONCLUSIONS OF LAW 1. The June 2008 rating decision denying the claim for service connection for arthritis of the right hand is final; and evidence received since the June 2008 rating decision is new and material to reopen service connection for arthritis of the right hand. 38 U.S.C. §§ 5103, 5103A, 5108, 7105(c); 38 C.F.R. §§ 3.102, 3.156(a), 20.1103. 2. The June 2008 rating decision denying the claim for service connection for arthritis of the left thumb is final; and evidence received since the June 2008 rating decision is new and material to reopen service connection for arthritis of the left thumb. 38 U.S.C. §§ 5103, 5103A, 5108, 7105(c); 38 C.F.R. §§ 3.102, 3.156(a), 20.1103. 3. The June 2008 rating decision denying the claim for service connection for arthritis of the left foot is final; and evidence received since the June 2008 rating decision is new and material to reopen service connection for arthritis of the left foot. 38 U.S.C. §§ 5103, 5103A, 5108, 7105(c); 38 C.F.R. §§ 3.102, 3.156(a), 20.1103. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the Army from September 1980 to September 1992, October 2002 to September 2003, November 2003 to May 2004, May 2004 to December 2006, November 2008 to November 2011, and November 2011 to October 2012. This matter comes to the Board of Veterans Appeals (Board) from a March 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. New and Material Evidence A claim that has been denied in an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. § 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 is defined as existing evidence not previously submitted to agency decision makers. Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which “does not require new and material evidence as to each previously unproven element of a claim.” Shade v. Shinseki, 24 Vet. App. 110 (2010). In establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Regardless of whether the RO found that new and material evidence had been submitted to reopen a claim for service connection, it is well established that the Board must determine on its own whether new and material evidence has been submitted to reopen a claim. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). 1. Whether new and material evidence has been submitted to reopen the previously denied claim of entitlement to service connection for a right hand disability. 2. Whether new and material evidence has been submitted to reopen the previously denied claim of entitlement to service connection for a left thumb disability. 3. Whether new and material evidence has been submitted to reopen the previously denied claim of entitlement to service connection for a left foot disability. Issues 1-3. Veteran contends that his arthritis of the right hand, left thumb, and left foot are secondary to his service-connected condition of right thumb osteoarthritis, or in the alternative, the disabilities were incurred in or are directly connected to his active service. In February 2008, the Veteran filed an initial claim for service connection for arthritis of the right hand, left thumb, and left foot as secondary to the service-connected disability of right thumb osteoarthritis. The claim was denied in a June 2008 rating decision. The RO found that there was no evidence linking the claimed disabilities with the service-connected disability. The Veteran did not file a timely notice of disagreement with the June 2008 rating decision, and no evidence was received within one year of the RO decision, nor were new, relevant service records received at any time thereafter. 38 C.F.R. §§ 3.156(b), (c). Consequently, the June 2008 rating decision became final. See 38 U.S.C. § 7105(c) (2006); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2007). Subsequently, in August 2014, the Veteran filed an application to reopen his claim for service connection for arthritis of the right hand, left thumb, and left foot as secondary to the service-connected disability of right thumb osteoarthritis. In a March 2015 rating decision, the RO denied reopening of the claim. The RO found that the medical evidence submitted in connection with the claim did not constitute new and material evidence because it does not relate to an unestablished fact necessary to substantiate the claim and it did not raise a reasonable possibility of substantiating the claim. Further, the RO found that there was no evidence that the claimed disabilities were incurred in or caused by service or within any applicable presumptive period. Based on the procedural history outlined above, the issue for consideration with respect to the Veteran’s claim is whether new and material evidence has been received to reopen the claim of entitlement to service connection for arthritis of the right hand, left thumb, and left foot. As previously stated, in February 2008, the Veteran submitted claims seeking service connection for arthritis of the right hand, left thumb, and left foot. His claims were denied in a June 2008 rating decision, and the Veteran neither appealed the rating decision, nor submitted new and material evidence pertaining to these issues within a year of that rating decision; hence, the June 2008 rating decision became final. At the time of the June 2008 rating decision, the evidence of record did not show that arthritis of the right hand, left thumb, and left foot was related to the Veteran’s service-connected condition of right thumb osteoarthritis. Further, the evidence of record did not show that the claimed disabilities were incurred during the Veteran’s active service. The evidence included the Veteran service treatment records, a May 2008 VA examination report, and statements of the Veteran. Finally, the RO noted in the June 2008 rating decision that the Veteran’s claimed disabilities were “by history only,” indicating that the current disability element of service connection had not be satisfied. In August 2014, VA received the Veteran’s petition to reopen the previously denied claims for arthritis of the right hand, left thumb, and left foot. The medical evidence dated after June 2008 consists of additional lay statements, medical records, recent active service treatment records from November 2008 to October 2012, and a medical article from an orthopedic practice. After having carefully reviewed the recent evidentiary submissions, the Board concludes that the subsequently received evidence is new and material. The Board notes that service treatment records were received after the June 2008 rating decision. Under 38 C.F.R. § 3.156(c), at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will “reconsider” the claim, notwithstanding paragraph (a) of the same section (which defines new and material evidence). See 38 C.F.R. § 3.156(c)(1). If VA thereafter makes an award based in whole or in part on these newly associated service department records, the assigned effective date will be “the date entitlement arose or the date VA received the previously decided claim, whichever is later.” 38 C.F.R. § 3.156(c)(3), Nevertheless, the relevant official department records received after the June 2008 rating decision are associated with the Veteran’s active service period dated after June 2008, making them nonexistent prior to the June 2008 rating decision. Therefore, 38 C.F.R. § 3.156(c) does not apply. In sum, the recent submitted evidence is new because it was not of record at the time of the June 2008 rating decision. The evidence is also material because it shows in-service injuries and post-service symptomology that tend to support the existence of current right hand, left thumb, and left foot disabilities, as well as a nexus between the Veteran’s service and his claimed arthritis of the right hand, left thumb, and left foot. The evidence received is presumed credible (only for the purpose of reopening the claims), is neither cumulative nor redundant of the evidence of record, and raises a reasonable possibility of substantiating the Veteran’s claims. As such, the Veteran’s arthritis claims for the right hand, left thumb, and left foot must be reopened. Accordingly, the petitions to reopen the previously denied claims for service connection for arthritis of the right hand, left thumb, and left foot disabilities are granted. REASONS FOR REMAND 1. Entitlement to service connection for arthritis of the right hand is remanded. 2. Entitlement to service connection for arthritis of the left thumb is remanded. 3. Entitlement to service connection for arthritis of the left foot is remanded. VA must afford a veteran a medical examination and/or obtain a medical opinion when it is necessary to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). 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 the VA to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81-82 (2006). As stated above, the Veteran is currently service-connected for right thumb osteoarthritis. A June 2012 radiologic exam indicated that the Veteran may have osteoarthritis of the right hand, however, more recent x-ray reports discuss only arthritis affecting the right thumb. See June 2012 Radiologic Examination Report. In this regard, the Board notes that the Veteran is already service-connected for right thumb osteoarthritis, rated as 0 percent disabling effective January 01, 2007. Because there is a question as to whether the Veteran has an additional disability affecting the areas of his hand, separate and apart from his right thumb, a remand is required to determine the nature and etiology of any such right hand condition. As to his left thumb and left foot, there is recent medical evidence in the Veteran’s VA treatment record reflecting a diagnostic impression of arthritis affecting those joints, however, arthritis must be confirmed by x-rays. See 38 C.F.R. § 4.71a, Diagnostic Code 5003. Although x-rays were taken, in December 2017, the results of those x-rays are not of record. See December 2017 Primary Care Letter and January 2018 Test Result Notification Letter. Nevertheless, because there is an indication of a current disability affecting the Veteran’s left thumb and left foot, as well as in-service complaints of pain, the Board finds that the low threshold of McLendon is satisfied and a VA exam is warranted. As such, in view of the record and the Veteran’s statements, the Board believes that VA’s duty to obtain a VA medical opinion is triggered in this case. The matter is REMANDED for the following action: 1. Obtain all relevant VA and private treatment records not currently associated with the claims file, to include the December 2017 x-ray report for the left thumb and left foot, and any other VA medical record that has been created since the Veteran’s records were last obtained in August 2018. 2. Thereafter, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of the Veteran’s arthritis of the right hand, left thumb, and left foot. The examiner must acknowledge review of the pertinent evidence of record, including the Veteran’s reports of symptom manifestation. All necessary examinations, tests, and studies should be conducted. The examiner should address the following: a. Identify/diagnose any disability of the right hand, left thumb, and left foot that presently exists or that has existed during the appeal period. b. Whether it is at least as likely as not (50 percent probability or greater) that any right hand disability had its onset in service or within a year of service discharge or is otherwise etiologically related to active service, to include as being secondary to the Veteran’s service-connected condition of right thumb osteoarthritis. c. Whether it is at least as likely as not (50 percent probability or greater) that any left thumb disability had its onset in service or within a year of service discharge or is otherwise etiologically related to active service, to include as being secondary to the Veteran’s service-connected condition of right thumb osteoarthritis. d. Whether it is at least as likely as not (50 percent probability or greater) that any left foot disability had its onset in service or within a year of service discharge or is otherwise etiologically related to active service, to include as being secondary to the Veteran’s service-connected condition of right thumb osteoarthritis. 3. Ensure that the VA medical opinion obtained includes a complete rationale for the conclusions reached. The medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 4. Readjudicate. C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Griffey, Law Clerk