Citation Nr: 18152249 Decision Date: 11/21/18 Archive Date: 11/21/18 DOCKET NO. 18-28 114 DATE: November 21, 2018 ORDER As new and material evidence has been received sufficient to reopen the previously denied claims of service connection for left hand arthritis, right hand arthritis, a lower back condition, and a chin injury, the application to reopen these claims is granted. Service connection for residuals of a right great toe fracture is denied. REMANDED The reopened claim of service connection for a left hand condition (claimed as bilateral hand condition) is remanded. The reopened claim of service connection for a right hand condition (claimed as bilateral hand condition) is remanded. The reopened claim of service connection for a low back condition (claimed as lumbar spine condition) is remanded. Service connection for a left knee condition is remanded. Service connection for breathing problems is remanded. Service connection for chest pain is remanded. The reopened claim of service connection for a chin injury is remanded. FINDINGS OF FACT 1. In a September 2013 rating decision, the agency of original jurisdiction (AOJ) denied entitlement to service connection for left hand arthritis, right hand arthritis, a lower back condition, and a chin injury; and, the Veteran did not appeal that determination. 2. Presuming its credibility, the evidence associated with the record since September 2013 relates to an unestablished fact necessary to substantiate the claim, is neither cumulative nor redundant of evidence already of record, and raises a reasonable possibility of substantiating the claims of left hand arthritis, right hand arthritis, a lower back condition, and a chin injury. 3. The Veteran was previously granted service connection for residuals of a left great toe fracture in a September 2013 rating decision. There is no evidence that the Veteran fractured his right great toe, or any toe other than the left great toe, while in service. CONCLUSIONS OF LAW 1. The September 2013 rating decision denying service connection for left hand arthritis, right hand arthritis, a lower back condition, and a chin injury is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 20.302, 20.1103. 2. New and material evidence has been received sufficient to reopen the previously denied claims of service connection for left hand arthritis, right hand arthritis, a lower back condition, and a chin injury. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for service connection for residuals of a right great toe fracture have not been met. 38 U.S.C. § 1110; 38 C.F.R. 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the United States Marine Corps from September 2009 to July 2013. The AOJ issued a rating decision in September 2013, which denied service connection for left hand arthritis, right hand arthritis, a left knee condition, and a chin injury. That decision became final after the Veteran did not file a notice of disagreement within one year. The matters come before the Board on appeal from an August 2017 rating decision. The Veteran filed a notice of disagreement in September 2017. The AOJ issued a statement of the case March 2018. The Veteran appealed to the Board in May 2015. The appeal was certified to the Board in June 2018. Reopened Claims—New and Material Evidence In a September 2013 rating decision, the AOJ denied the Veteran’s claim of service connection for left hand arthritis, right hand arthritis, a lower back condition, and a chin injury. The basis for the denials was that there was no evidence that the Veteran currently suffered from any of those disabilities, due at least in part to his failure to report to VA examinations scheduled in conjunction with his claims. A finally adjudicated claim is an application which has been allowed or disallowed by the AOJ, the action having become final by the expiration of one year after the date of notice of an award or disallowance, or by denial on appellate review, whichever is the earlier. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017). The September 2013 rating decision is final. 38 C.F.R. § 20.1103 (2017). Prior unappealed decisions are final. However, a claim will be reopened and the former disposition reviewed if new and material evidence is presented or secured with respect to the claim which has been disallowed. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a). When “new and material evidence” is presented or secured with respect to a previously and finally disallowed claim, VA must reopen the claim. Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). 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. 38 C.F.R. § 3.156(a). The provisions of 38 C.F.R. § 3.156(a) create a low threshold for finding new and material evidence, and view the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening.” Shade v. Shinseki, 24 Vet. App. 110, 121 (2010). Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273 (1996). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Evidence received since the September 2013 denial includes the Veteran’s May 2017 statement indicating he was unaware of the previously scheduled examinations, and July 2017 VA examination reports. This evidence is new as it was not previously of record. This evidence is also material because it raises a reasonable possibility that the Veteran has the currently claimed disabilities of the hands, back, and chin, which was the basis for the prior denial. Accordingly, the claims are reopened. The reopened claims are addressed in the REMAND which follows. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1131; 38 C.F.R. 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. 3.303. 1. Service connection for residuals of right great toe fracture is denied. The Veteran asserts that he suffers from the residuals of a right great toe fracture. By way of history, a September 2013 rating decision granted service connection for the residuals of a left great toe fracture. The Veteran underwent a VA examination in July 2017 wherein the examiner found that his right toe was objectively normal, and that there was no evidence that his right great toe was currently broken or had been broken while in service. The Veteran reported at this time that he had broken his left great toe playing soccer while he was in service. This is consistent with the exit examination the Veteran received in April 2013, wherein the Veteran reported having broken his left toe. This is also consistent with the RO’s finding that the Veteran’s left toe fracture is service-connected. The Board notes that there are in-service treatment records that indicate that the Veteran had broken his right great toe, however all available evidence indicates that those records misidentified the toe that was broken. Service treatment records are consistent in reporting that the Veteran only broke one toe while in service, and that the toe was broken in June 2010 while playing soccer. The Veteran reported upon exit from the military that it was the left great toe that he broke. Notably, the Veteran did not report having broken his right great toe at either time. The record does not otherwise indicate that the Veteran broke more than one great toe during his service. Compensating a veteran twice for the same injury is expressly prohibited under the law. 38 C.F.R. § 4.14. The Veteran’s residuals of a left great toe fracture have already been service connected, and thus service connection for the residuals of another broken toe is not warranted given that all available evidence demonstrates that the Veteran only broke one toe while in service. The preponderance of the evidence is against a finding that the Veteran has residuals of an in-service broken right great toe. Accordingly, service connection is not warranted. REASONS FOR REMAND 2. The claims of service connection for a left hand condition, right hand condition, and a chin disability are remanded. The Veteran asserts that he has arthritis in his left and right hands, and also that he has a chin disability. In disability compensation claims, the Secretary must provide a VA medical examination 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 Secretary to make a decision on the claim. 38 U.S.C. § 5103A; McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Because the Veteran has not been afforded a VA examination in conjunction with these reopened claims, a remand is in order so that a VA examination can be given to determine what if any, left hand disability, right hand disability, and chin disability currently exist, and if so, whether any are related to service. 3. The claims of service connection for a low back condition and a left knee condition are remanded. The Veteran appeared for a VA examination for his lower back in July 2017. The examiner reviewed the Veteran’s claims file, examined the Veteran in person, and found that his lower back was objectively normal. The Veteran told the examiner that he originally hurt his back while in the Marine Corps in 2009 and that he never sought treatment. The Veteran stated that his lower back hurts near both hips and in the middle of his back. The Veteran stated that he gets flare-ups, especially after he goes to the gym or works on his car, and that he uses Icy Hot patches when he gets those flare-ups. While his back was deemed to be objectively normal, the examiner was not able to determine, without speculating, what limitations on range of motion or pain upon use would be present when the Veteran is experiencing a flare-up, reasoning that the Veteran did not have objective evidence of a lower back disability. Similarly, the Veteran went for a VA examination for his left knee in July 2017. The examiner reviewed the Veteran’s claims file, examined the Veteran in person, and found that his left knee was objectively normal. The Veteran told the examiner that he originally hurt his left knee while in the Marine Corps in 2009 and that he never sought treatment. The Veteran stated that he gets flare-ups, especially after he goes to the gym. While his left knee was deemed to be objectively normal, the examiner was not able to determine, without speculating, what limitations on range of motion or pain upon use would be present when the Veteran is experiencing a flare-up, reasoning that the Veteran did not currently suffer from a left knee disability. An additional VA examination for the Veteran’s low back and left knee is necessary to decide these claims. The Veteran competently reported back and knee pain, and the examiner did not attempt to determine the cause of such pain or whether the pain caused any functional impact, to include during flare-ups. 4. Service connection for breathing problems is remanded. The Veteran has asserted that he has breathing problems which are related to his military service. The Veteran’s service treatment records do indicate that the Veteran suffered from chronic upper respiratory infections (URIs) while he was in service. Because the Veteran has not been given a VA examination for this condition, a remand for an examination to determine whether or not the Veteran currently suffers from breathing problems related to service is necessary to decide the claim. 38 U.S.C. § 5103A; McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). 5. Service connection for chest pain is remanded. The Veteran has asserted that he has chest pains which are related to his military service. The Veteran underwent a medical examination before being discharged from the Marine Corps, at which he reported that he suffered from a sharp pain in his chest about once a month. Because the Veteran has not been given a VA examination for this condition, a remand for an examination to determine whether or not the Veteran currently suffers from a disability manifested by chest pain is appropriate. 38 U.S.C. § 5103A; McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA joints examination to ascertain whether the Veteran has a current left hand disability, right hand disability, low back disability, and/or left knee disability that is at least as likely as not causally related to an injury or disease he incurred during his military service. If the examination is not conducted during a flare-up, the examiner should still address whether a current diagnosis exists to account for the Veteran’s reports of pain. 2. Schedule the Veteran for a VA respiratory examination to determine the current nature and likely etiology of any current respiratory disorder. For all diagnosed conditions, the examiner is asked to opine as to whether it is at least as likely as not causally related to an injury or disease he incurred during his military service. 3. Schedule the Veteran for a VA cardiology examination to determine whether the Veteran has a current cardiac disability manifested by chest pains that is at least as likely as not causally related to an injury or disease he incurred during his military service. 4. Schedule the Veteran for a VA examination to determine any current residuals of an in-service chin injury, to include assessment of any associated scarring. Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P. Macchiaroli, Law Clerk