Citation Nr: 1808780 Decision Date: 02/13/18 Archive Date: 02/23/18 DOCKET NO. 13-20 987 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a left hand disability, to include as secondary to a left shoulder disability; and if so, whether the reopened claim should be granted. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Spigelman, Associate Counsel INTRODUCTION The Veteran had active service in the United States Marine Corps (USMC) from April 1978 to September 1986. This case comes before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. Jurisdiction over the case was subsequently transferred to the VA RO in Waco, Texas. In connection with this appeal, the Veteran testified at a hearing before the undersigned Veterans Law Judge at the RO in August 2017. A transcript of that hearing has been associated with the claims file. FINDINGS OF FACT 1. An unappealed February 2008 rating decision denied entitlement to service connection for numbness in the left hand. 2. The evidence associated with the claims file subsequent to the February 2008 rating decision includes evidence that 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 claim of entitlement to service connection for a left hand disability. 3. A left hand disability is etiologically related to a left shoulder Bristow surgical procedure in active service. CONCLUSIONS OF LAW 1. New and material evidence has been received sufficient to reopen a claim of entitlement to service connection for a left hand disability. 38 U.S.C. §§ 5108, 7104, 7105 (2012); 38 C.F.R. § 3.156 (2017). 2. A left hand disability was incurred in active service. 38 U.S.C. §§ 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Claim to Reopen A February 2008 rating decision denied the Veteran's claim of entitlement to service connection for numbness in the left hand based on a finding that there was no link to service and it was not related to a service-connected disability. The Veteran did not file a timely appeal with that decision. The pertinent evidence that has been received since the February 2008 rating decision includes medical evidence indicating that the Veteran's current left hand numbness is the result of left shoulder surgery performed during the Veteran's active service. The Board finds that the additional evidence is new and material. In this regard, the medical evidence has not previously been considered by VA and it raises a reasonable possibility of substantiating the claim of entitlement to service connection for a left hand disability. Accordingly, reopening of the claim of entitlement to service connection for a left hand disability is warranted. Entitlement to Service Connection for a Left Hand Disability The Veteran has asserted that he has a left hand disability as a result of his active service. Specifically, the Veteran reported that he has experienced left hand numbness ever since he underwent left shoulder surgery during active service. Service treatment records (STRs) show that the Veteran underwent a left shoulder Bristow surgical procedure in August 1981 as a result of recurrent dislocations of his left shoulder. The Veteran was seen several times following his surgical procedure for left shoulder and arm complaints, to include symptoms of left arm weakness. A review of the Veteran's post-service medical treatment records establishes that the Veteran received treatment from the VA Medical Center for various disabilities, including his left hand disability. A review of the medical treatment notes reveals that the Veteran was diagnosed in February 2008 with numbness in the fourth and fifth digit of his left hand, likely from ulnar nerve entrapment. In August 2012, the Veteran was afforded a VA examination. At that time, the examiner diagnosed the Veteran with carpal tunnel syndrome and ulnar neuropathy and opined that the Veteran's left hand numbness was less likely related to his service-connected shoulder disability. The examiner further opined that the Veteran's left hand numbness was as likely as not related to his non-service connected diabetes mellitus. The Board finds the August 2012 VA examination and medical opinion to be inadequate for adjudication purposes. In this regard, the Board notes that the examiner did not address whether the Veteran's left hand disability was etiologically related to his active service. As the opinion is inadequate, it cannot serve as the basis of a denial of entitlement to service connection. Also of record is a November 2017 statement from Dr. J.L., the Veteran's primary care physician. Dr. J.L. reported that he had been treating the Veteran for several years and had reviewed the Veteran's service records at his request. Dr. J.L. opined that the Veteran's current diagnosis of left ulnar nerve neuropathy was clearly related to the surgical procedure the Veteran had during active service. In this regard, Dr. J.L. noted that a review of the Veteran's STRs showed that he first injured his left shoulder in 1979 while in active service, for which he subsequently underwent surgical repair. Dr. J.L. noted that the Veteran reported numbness in the left arm and had following surgery, but was told it would improve over time. In response to the August 2012 VA examiner's opinion that the Veteran's left hand nerve impairment was the result of his nonservice-connected diabetes mellitus, Dr. J.L. noted that it was unlikely that the Veteran would have developed such a localized nerve injury a mere nine months following his diagnosis of diabetes mellitus. The Board finds that the November 2017 opinion provided by the Veteran's private treatment provider is adequate. In this regard, Dr. J.L. reviewed the pertinent evidence and discussed such evidence, considered the contentions of the Veteran, and provided a supporting rationale for the conclusions reached. Barr v. Nicholson, 21 Vet. App. 303 (2007); Stefl v. Nicholson, 21 Vet. App. 120 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). As a result, the Board finds the opinion provided by Dr. J.L. to be the most probative evidence of record. Therefore, the Board finds that the preponderance of the evidence is for the claim and entitlement to service connection for a left hand disability is warranted. 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER New and material evidence has been received and reopening of the claim of entitlement to service connection for a left hand disability is granted. Entitlement to service connection for a left hand disability is granted. ______________________________________________ Kristin Haddock Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs