Citation Nr: 18156488 Decision Date: 12/11/18 Archive Date: 12/10/18 DOCKET NO. 16-38 737 DATE: December 11, 2018 ORDERS 1. The application to reopen the claim for entitlement to service connection for right wrist condition is granted. 2. Entitlement to service connection for right wrist arthritis is granted. FINDINGS OF FACT 1. In a March 2009 rating decision, the Regional Office (RO) denied the Veteran’s claim for entitlement to service connection for right wrist condition. The Veteran neither appealed this decision nor submitted new and material evidence within the one year appeal period. 2. Evidence received since the March 2009 decision relates to an unestablished fact necessary to substantiate the claim for entitlement to service connection for right wrist condition and raises a reasonable possibility of substantiating the claim. 3. The evidence is at least evenly balanced as to whether the right wrist arthritis is related to service. CONCLUSIONS OF LAW 1. The March 2009 decision that denied the claim for entitlement to service connection for right wrist condition is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. § 3.156 (2017). 2. Evidence received since the March 2009 decision is new and material and the criteria for reopening of the claim for entitlement to service connection for right wrist condition have therefore been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 3. The Veteran currently has a disability manifested by right wrist arthritis and the evidence demonstrated it is related to his military service. 38 U.S.C. §§ 1101, 1110, 5107 (b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1968 to September 1972. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In the January 2015 rating decision, the RO denied reopening of a claim for entitlement to service connection for a right wrist condition. Subsequently, in a July 2016 statement of the case, the R reopened the claim for service connection for a right hand/wrist condition and denied it on the merits. Regardless of the RO’s precise disposition of the matter, however, the Board has a jurisdictional responsibility to consider whether it was proper for a claim to be reopened. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). In October 2018, the Veteran testified during a Board video-conference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is not of record, but one is not necessary for a decision on the claims. The application to reopen entitlement to service connection for right wrist condition is granted. Generally, a claim that has been denied in a final unappealed rating decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c). An 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, VA will reopen the claim and review it on the merits. The implementing regulation also provides that new and material evidence received prior to the expiration of the appeal period will be considered as having been filed in connection with the claim that was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). New evidence is defined as existing evidence not previously submitted to agency decisionmakers. 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). In deciding whether new and material evidence has been submitted the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). 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). In March 2009, the RO denied the Veteran’s claim for entitlement to service connection for right wrist condition. The Veteran was notified of this denial in a notification letter later that month but did not appeal, and did not submit new and material evidence within the one-year appeal period. Therefore, this denial became final. See 38 U.S.C. § 7105(c); 38 C.F.R. § 3.156. The RO denied the claim, noting a post service wrist injury many years after service, and finding that the Veteran’s current right wrist disability neither occurred in nor was caused by service. Since the March 2009 denial, the Veteran has submitted a July 2015 statement that explained why there was no in-service treatment record of his wrist and provided more details about the August 1972 fall. In August 2016, the Veteran submitted another statement in which he detailed the effect of the August 1972 fall on his body and lifestyle. In a September 2016 private medical opinion, a private physician opined that the Veteran’s present disability is related to his in-service fall. This private opinion is new evidence that relates to the basis for the prior denial and raises a reasonable possibility of substantiating the claim. Therefore, reopening of the claim for entitlement to service connection for right wrist condition is warranted. Entitlement to service connection for right wrist arthritis is granted. Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Veteran generally asserts that his current right wrist disability is due to service. Here, an October 2014 private medical treatment record shows that the Veteran has been diagnosed with arthritis of the right wrist. The Veteran has thus met the current disability requirement. In addition, service treatment records from August 1972 describe how the Veteran fell off a cliff from approximately twenty to thirty feet above the ground while in service and how this led to lacerations on both palms of his hands. In an August 2016 statement, the Veteran explained that no evidence was recorded of his right wrist trauma in August 1972 because of the concern that his palm lacerations be treated as well as the injury sustained to his foot. This statement implies that in comparison to a wrist injury, there were more immediate and visible health concerns for the doctors to treat at the time. Nevertheless, there is evidence of in-service treatment of the Veteran’s fall and in conjunction with the Veteran’s July 2015 statement that he reached out with arms to soften the fall’s effects as he was falling, the in-service injury to his wrist is credible. Therefore, the Veteran has met the in-service injury requirement. Accordingly, the dispositive issue in this matter is whether the Veteran’s current right wrist arthritis is related to his in-service right wrist injury. In the September 2016 private medical opinion, the private physician opined that the Veteran’s current wrist arthritis is “certainly that type” that would be “compatible” with the Veteran’s August 1972 fall. Despite the fact that the physician did not use definite or entirely definite language when addressing etiology, the doctor’s opinion is evidence in support of the claim. See Hogan v. Peake, 544 F.3d 1295, 1297-98 (Fed. Cir. 2008) (even if flawed because stated uncertainly, an opinion from a licensed counselor regarding the etiology of a claimant’s psychological disorder must be considered as “evidence” of whether the disorder was incurred in service). Although the physician did not provide an extensive rationale, reading the opinion as a whole and in context of the evidence of record, this positive nexus opinion is entitled to some probative weight. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (the fact that the rationale provided by an examiner “did not explicitly lay out the examiner’s journey from the facts to a conclusion,” did not render the examination inadequate); Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). The only medical opinion to the contrary is the negative VA June 2016 opinion. There, the examiner opined, inter alia, that service treatment records were without additional follow up or treatment for the bilateral palm lacerations. The June 2016 VA opinion does not take account of the Veteran’s competent, credible lay statements and is, thus, inadequate. See Buchanan v. Nicholson, 451 F.3d 1331, 1336, n. 1 (Fed. Cir. 2006) (noting that VA’s examiner’s opinion, which relied on the absence of contemporaneous medical evidence, “failed to consider whether the lay statements presented sufficient evidence of the etiology of [the veteran’s] disability such that his claim for service connection could be proven without contemporaneous medical evidence”). The June 2016 VA examiner did not consider the Veteran’s statements affirmatively indicating he experienced symptoms of pain and limited motion of the right hand and right wrist since service. For example, in a July 2015 statement, the Veteran wrote, “since the incident I have been dealing with pain in my right hand and wrist.” The Veteran has stated that he suffered an in-service fall and continues to experience pain from that incident. After considering the internal consistency, facial plausibility, and consistency with other evidence of record, the Board finds the Veteran’s lay testimony to be competent and credible. See Caluza v. Brown, 7 Vet. App. 198, 511 (1995). Further, the September 2016 private medical opinion is of greater probative weight than the June 2016 VA examination, as the latter is inadequate. (Continued on the next page)   For the foregoing reasons, the evidence is at least evenly balanced as to whether the Veteran’s right wrist arthritis is related to his military service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for right wrist arthritis is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Lopez, Law Clerk