Citation Nr: 18103167 Decision Date: 05/17/18 Archive Date: 05/17/18 DOCKET NO. 15-46 580 DATE: May 17, 2018 ISSUES DECIDED: 2 ISSUES REMANDED: 0 ORDER New and material evidence has been received to reopen a previously denied claim of service connection for residuals of a left little finger disability, and the application to reopen is granted. Entitlement to service connection for residuals of a left little finger disability is granted. FINDINGS OF FACT 1. In an unappealed January 1999 rating decision, the RO denied the Veteran’s original claim for service connection for residuals of a left little finger disability. 2. Evidence received since the January 1999 final rating decision raises a reasonable possibility of substantiating the claim of service connection for residuals of a left little finger disability. 3. Resolving all doubt in the Veteran’s favor, he had an in-service injury to his left little finger, and he experienced continuous pain and tingling related to his current diagnosis of post traumatic mild degenerative joint disease since separation from active duty service. CONCLUSIONS OF LAW 1. The January 1999 rating decision denying service connection for residuals of a left little finger disability is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 3.105(a), 20.302, 20.1103 (2017). 2. The additional evidence received since the January 1999 rating decision is new and material, and the claim of service connection for residuals of a left little finger disability is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 3. The criteria for entitlement to service connection for residuals of a left little finger disability are met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(b), 3.307, 3.309(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1955 to August 1958. In July 2017, the Board remanded the case in order to afford the Veteran a Board hearing per his request. In December 2017, the Veteran testified in a videoconference hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is of record and has been reviewed. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). 1. New and Material Evidence The Board is required to determine whether new and material evidence has been received before it can reopen a claim and readjudicate service connection or other issues on the merits. Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). If the Board finds that no such evidence has been offered, that is where the analysis must end, and what the RO may have determined in this regard is irrelevant. Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. A claim on which there is a final decision may be reopened if new and material evidence is received. 38 U.S.C. § 5108. “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. 38 C.F.R. § 3.156(a). 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 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 submitted 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 the VA Secretary’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Reopening a claim for service connection which has been previously and finally disallowed requires that new and material evidence be presented or secured since the last final disallowance of the claim. 38 U.S.C. § 5108; Evans v. Brown, 9 Vet. App. 273, 285 (1996); see also Graves v. Brown, 8 Vet. App. 522, 524 (1996). The evidence submitted to reopen a claim is presumed to be true for the purpose of determining whether new and material evidence has been received unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). Duran v. Brown, 7 Vet. App. 216, 220 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). By way of procedural background, in January 1999, the RO denied the Veteran’s original claim for service connection for residuals of a left little finger disability. The RO determined that the Veteran did not submit evidence that was “well grounded.” The Veteran did not appeal this rating decision, nor was new and material evidence received prior to the expiration of the appeal period. 38 C.F.R. § 3.156(b). Therefore, the January 1999 decision became final one year after it was mailed to him. See 38 U.S.C. § 7105(c); 38 C.F.R. § 3.104(a). Thereafter, in July 2011, the Veteran sought to reopen his residuals of left little finger claim, and by a June 2013 rating decision, the RO declined to reopen the claim, determining that new and material evidence has not been received. The Veteran timely appealed the June 2013 decision, and this appeal ensued. The evidence of record at the time of the final January 1999 rating decision included the Veteran’s claim, a February 1998 VA examination, and a memorandum of unavailability of the Veteran’s service treatment records. Here, evidence received subsequent to the January 1999 final decision, includes additional lay assertions made by the Veteran, buddy statements, and his December 2017 hearing testimony that he had continuous symptoms since service, which he is competent to report. This evidence is new and material, as it establishes a possible nexus to the current diagnosis of post traumatic mild degenerative joint disease of the left little finger. As such, service connection claim for residuals of a left little finger must be reopened. 2. Entitlement to service connection for residuals of a left little finger disability Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d, 78 F.3d 604 (Fed. Cir. 1996). The Veteran is currently diagnosed with arthritis of the left little finger. Arthritis is listed as a “chronic disease” under 38 C.F.R. § 3.309(a); therefore, the presumptive service connection provisions under 38 C.F.R. § 3.303(b) for service connection based on “chronic” symptoms in service and “continuous” symptoms since service are applicable. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For the showing of chronic diseases in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). In addition, the law provides that, where a veteran served ninety days or more of active service, and certain chronic diseases, such as arthritis, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Analysis The Veteran asserts that he injured his left little finger during active duty. The finger was put in a splint multiple times during service, but did not heal properly leading to his finger being crooked ever since. He further states that the injury resulted in continuous symptoms such as pain and tingling since separation from service. The Veteran has a current diagnosis of left little finger mild degenerative joint disease, post traumatic. See February 1998 VA examination report. As applicable here, in cases where the STRs are unavailable, the Board has a heightened duty to assist the Veteran in the development of his claim. Cuevas v. Principi, 3 Vet. App. 542 (1992). His DD-214 establishes that his military specialty occupation was in food services, and the Veteran credibly testified that he was a butcher in-service. In February 1998, the Veteran underwent a VA examination for hand, thumb, and finger, to determine the nature and etiology of any current disabilities. The Veteran reported that he was a butcher in-service and injured his left hand little finger when he was stationed in Japan in 1957. He did not remember how it got injured, but had a memory that there was a fracture, and it was put in a splint at that time. When the splint was taken off, his finger looked crooked, so it was put back in a splint a few times, which did not resolve the problem. The examiner noted that the Veteran did not report any pain, but the finger was crooked, and he was unable to straighten it out. He was offered to have an operation on the tendon, but he declined. Upon examination, it was noted that the left hand thumb movements were normal, and all other fingers could reach midpalmar crease; however, the little finger was in a crooked position with 75 degrees flexion deformity at the proximal interphalangeal joint, a 15 degree flexion deformity at the distal interphalangeal joint, and a 20 degree deformity at the metacarpophalangeal joint. X-rays of the left hand revealed flexion contracture proximal interphalangeal (PIP), hyperextension contracture at distal interphalangeal joints (DIPs), mild degenerative joint disease, post traumatic. The examiner did not provide a medical nexus opinion regarding these findings. In a statement in support of claim dated in August 2011, the Veteran indicated that he broke his left hand in-service in July or August 1957. He stated that the injury never healed and he had a lot of ligament and nerve damage. He further indicated that over the years, he had doctors examine it, and the diagnosis was nerve and ligament damage. Lastly, he noted that his STRs were destroyed in a fire in 1973, but provided names of two service members and their addresses, indicating that they could support his case. The identified service members submitted “buddy statements” dated in April 2014, indicating that the Veteran was stationed at Misawa Air Base, Japan, and was assigned to the 49th food service squadron from January 1957 to March 1958. In his April 2014 notice of disagreement, the Veteran noted that after so many years, other service members may not remember his actual injury, but they can at least verify that he was there at the time of the injury, which could not have been verified, because his records were destroyed. A few pages of the Veteran’s military personnel records that were associated with the claims file in October 2014 confirm the locations and dates of his service. In his December 2015 substantive appeal (VA Form 9), the Veteran noted that it has been 60 years since the incident, and he could not remember all of the details, but have done everything he could to prove that he was there. He further described that there was only one medical building on the base, but VA told him that it was destroyed. In a correspondence dated in May 2016, the Veteran stated that he has been fighting this issue for over 30 years, indicating that at first VA told him he did not exist, that his records were lost, and then asked him to find service members who served with him. He indicated that he tried to respond to everything VA requested from him. During his December 2017 hearing, the Veteran testified that he injured his little left finger in-service “moving meat around; carcasses, half of a side of them all the time.” He stated that he went to sick call, where his finger was put on a splint for about six weeks, and when they took the splint off, it went right back into the same position it was in. He indicated that “it was torn,” and “crooked from the midknuckle…makes sort of an L-shape.” He stated that he was offered to have a surgery, but refused to have it at that time, because he was young and thought he could live with it. He further testified that he did not have any problems with his finger prior to service, and his symptoms have gotten worse over the years. He noted that sometimes he “can hardly sleep” due to tingling in the hand, and stated that his little finger felt like it was numb. The Veteran further noted that when he had pain over the years since service, he was taking pain pills, and self-treated the injury. While the Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, it cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In this regard, in the absence of the Veteran’s treatment records, at no fault of his own, and in the absence of any evidence to the contrary, the Board finds the Veteran’s testimony to be both competent and credible. After review of all the evidence of record, lay and medical, the Board finds that the weight of the evidence is at least in equipoise on the question of whether the Veteran experienced “chronic” symptoms in service and “continuous” symptoms since service separation of arthritis (as degenerative joint disease of the little left finger). See 38 C.F.R. § 3.303(b). As discussed above, in multiple lay statements and in testimony at the December 2017 Board videoconference hearing, the Veteran testified that he injured his left little finger in-service, which resulted in deformity, pain, and tingling in-service, and continuously worsened since service separation. Accordingly, resolving all reasonable doubt in the Veteran’s favor, the Board finds that the Veteran injured his left little finger during service and experienced “chronic” symptoms in service and “continuous” symptoms since service separation of arthritis of the left little finger. As such, the criteria for presumptive service connection for arthritis of the left little finger under 38 C.F.R. § 3.303(b) based on “chronic” symptoms in service and “continuous” symptoms post service have been met. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As service connection is being granted on a presumptive basis, there is no need to discuss entitlement to service connection on a direct, or any other basis, as other theories of service connection have been rendered moot, leaving no question of law or fact to decide. See 38 U.S.C. § 7104 (2012). Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Yaffe, Associate Counsel