Citation Nr: 20003795 Decision Date: 01/16/20 Archive Date: 01/15/20 DOCKET NO. 16-47 815 DATE: January 16, 2020 ORDER New and material evidence having been received, the petition to reopen the claim of entitlement to service connection for a left forearm disability is granted. REMANDED The issue of entitlement to service connection for a left forearm disability is remanded. FINDINGS OF FACT 1. In a March 2002 rating decision, a VA regional office (RO) denied reopening the Veteran’s claim for service connection for a left forearm disability. The Veteran initiated an appeal, and the September 2005 Board decision denied the claim. 2. Evidence associated with the file since September 2005, when considered by itself or in connection with evidence previously assembled, relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for a left forearm disability. CONCLUSIONS OF LAW 1. The September 2005 Board decision denying reopening of the claim for service connection for a left forearm disability is final. 38 U.S.C. § 7104 (b) (West 2014); 38 C.F.R. §§ 3.104 (a), 20.302 (a), 20.1103 (2018). 2. As pertinent evidence received since the September 2005 denial is new and material, the criteria for reopening the claim for service connection for a left forearm disability is met. 38 U.S.C. §§ 5108, 7104, 7105 (West 2014); 38 C.F.R. § 3.156 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from September 1969 to November 1969. In November 2019, the Veteran and his daughter testified at a Videoconference hearing before the undersigned Veterans Law Judge. The undersigned noted the issues on appeal and engaged in a colloquy with the Veteran toward substantiation of the claims. See Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). A copy of the hearing transcript is associated with the claims file. Petition to reopen previously denied claim Generally, a claim that has been denied in an un-appealed Board decision or an un-appealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104 (b), 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. 38 U.S.C. § 5108 (West 2014); 38 C.F.R. § 3.156 (a); see also Hodge v. West, 155 F. 3d 1356 (Fed. Cir. 1998). 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 determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). 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). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is presumed. See Justus v. Principi, 3 Vet. App. 510 (1992). The newly presented evidence need not be probative of all the elements required to award the claim, just probative of each element (or at least one element) that was a specified basis for the last disallowance of the claim. See Evans v. Brown, 9 Vet. App. 273, 283 (1996); see also Hodge, 155 F.3d at 1363 (noting that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant’s injury or disability, even where it would not be enough to convince the Board to grant the claim). Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a left forearm disability The claim of service connection for a left forearm disability was previously denied in a September 2005 Board decision. Because new and material evidence has since been received, this claim will be reopened. In a December 1991 rating decision, a VA RO denied the Veteran’s claim of service connection for a left forearm disability because the medical evidence did not indicate the Veteran’s preexisting left forearm disability was aggravated by his service. Although notified of this decision by a January 1992 letter, the Veteran did not initiate an appeal or submit new and material evidence within one year of the rating decision. The denial is final as to the evidence then of record and is not subject to revision on the same factual basis. See 38 U.S.C. § 7105 (b); see also 38 C.F.R. §§ 3.104, 3.156 (a), 20.302, 20.1103. In October 2001, the Veteran petitioned to reopen the service connection claim for a left forearm disability. In a March 2002 decision, the RO denied reopening the claim because the evidence submitted was not new and material. The Veteran initiated a timely appeal, and the Board denied the claim in a September 2005 decision. The denial is final as to the evidence then of record and is not subject to revision on the same factual basis. See 38 U.S.C. § 7104 (b); see also 38 C.F.R. §§ 3.104, 3.156 (a), 20.302, 20.1103. In July 2015, the Veteran petitioned to reopen the service connection claim for a left forearm disability. In an October 2015 rating decision, the RO denied reopening because the evidence was not new and material. The Veteran filed a timely notice of disagreement (NOD), and perfected the appeal following the August 2016 statement of the case (SOC). Evidence submitted since the September 2005 Board decision consists of VA treatment records, the Veteran’s personal statements, and private medical opinions. The VA treatment records do not suggest any nexus between the Veteran’s current disability and his service other than the Veteran’s statements given during medical examinations, and the Veteran’s personal statements are duplicative of prior statements on record regarding a nexus to service. However, the private medical opinions suggest a possible nexus between the Veteran’s current left forearm nerve disability and his service. Given the threshold for substantiating a claim to reopen is low, the evidence associated with the claims file since the September 2005 denial, when considered by itself or in connection with evidence previously assembled, relates to an unestablished fact necessary to substantiate the claim for service connection for a left forearm disability and raises a reasonable possibility of substantiating the claim. Thus, the claim of service connection is reopened and will be remanded for further development. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS FOR REMAND Entitlement to service connection for a left forearm disability is remanded. The Veteran has submitted private medical opinions that suggest the Veteran’s current left forearm disability, to include ulnar nerve neuropathy, may have been caused or aggravated by his service. The Board has determined that additional development of the claim is necessary The matters are REMANDED for the following action: 1. Request the Veteran identify and secure any relevant private medical records that are not in the claims file. If the Veteran identifies private records, following the securing of the appropriate waivers, make all appropriate attempts to locate such records and to associate them with the claims file. If the Veteran has no further evidence to submit, or, if after exhaustive efforts have been made, no records can be identified, so annotate the record. 2. Obtain any outstanding VA medical records and associate them with the claims file. 3. Schedule the Veteran for an appropriate VA examination, consistent with VA rating protocols, to determine the nature and etiology of his current left forearm diagnoses. The entire claims file, including a copy of the Remand, should be made available to, and be reviewed by, the VA examiner. All appropriate tests, studies, and consultations should be accomplished, and all clinical findings should be reported in detail. An explanation should be given for all opinions and conclusions rendered. Based upon a review of the relevant evidence of record, history provided by the Veteran, and sound medical principles, the VA examiner should provide the following opinions: a) Was the Veteran’s preexisting left forearm disability aggravated beyond the course of its natural progression during service, to include as due to an in-service injury, event or illness? b) If in-service aggravation is found, is there clear and unmistakable evidence that the increase in severity was due to the natural progression of the preexisting disability? c) Are any of the Veteran’s current left forearm diagnoses, to include ulnar nerve neuropathy, demonstrative of aggravation by service of his preexisting left forearm disability? d) If aggravation is found, the examiner should also state, to the extent possible, the baseline level of disability prior to aggravation. This may be ascertained by the medical evidence of record and by the Veteran’s statements as to the nature, severity, and frequency of his observable symptoms over time. The examiner must review the entire record in conjunction with rendering the requested opinions. IN ADDITION TO ANY RECORDS THAT ARE GENERATED BECAUSE OF THIS REMAND, the VA examiner’s attention is drawn to the following: *October 1967 assessment that the Veteran’s mid-shaft ulna and radius fractures had healed “solidly,” and that the moderate medial angulation deformity did not appear to be significant. See “STR – Medical,” received December 9, 1991, page 35 of 38. * May 1969 pre-induction report of medical examination notes the Veteran’s left forearm fractures demonstrated 20-degree angulation. The Veteran was found fit for induction. A different May 1969 pre-induction medical report notes the left forearm was unable to supinate. See Id. at pages 1, 8-9 of 38. * September 1969 Medical Board Proceedings report, indicating the Veteran’s injury existed prior to entry, that it was not aggravated by active duty, that the Veteran be relieved of all basic training duties and that he be returned to duty for separation. See “Military Personnel Record,” received November 18, 1991, pages 7-8 of 8. * October 1969 service treatment record (STR) indicating the Veteran complained of left forearm pain in his bones after twisting his arm to use a rifle. X-rays indicated a left forearm deformity. An orthopedic consult noted the Veteran was unable to supinate to the first quarter of the normal arch and should be given a medical board discharge. See “STR – Medical,” supra, pages 15-17 of 38. * October 1969 report of medical examination for a Medical Board. The examiner’s notes indicate angular deformity of the left radius and ulna due to an old fracture. See Id. at pages 19-20 of 38. * October 1969 medical board clearance x-rays indicated no significant abnormality. See Id. at page 30 of 38. * May 1993 x-rays did not indicate arthritic changes to the left forearm. See “Medical Treatment Records – Furnished by SSA,” received May 7, 2004, page 1 of 75. * November 1995 medical evaluation report, when the examiner noted the Veteran’s left forearm movement was limited, that his supination was zero degrees, that he can only supinate by twisting his left arm and externally rotating it, and that he demonstrated minimal disuse atrophy of his left forearm muscles. She diagnosed the Veteran with status post open reduction and internal fixation of left forearm compound fracture with limitation in supination. See “Medical Treatment Record – Furnished by SSA,” received May 7, 2004, page 17 of 75. * July 2002 private treatment records indicating the Veteran was diagnosed with tennis elbow in his left elbow. See “Medical Treatment Record – Non-Government Facility,” received November 25, 2003, page 26 of 74. * February 2003 x-rays indicating old healed fracture deformities of left radial and ulnar shafts, with mild residual angulation of ulnar fracture and moderate residual angulation of radial fracture, with no acute fracture or osteomyelitis. See Id. at page 3 of 74. * March 2003 private progress note, when the examiner noted the Veteran reported he reinjured and possibly refractured his left forearm 3 years after the 1966 fracture. The examiner noted it was “unlikely” that the Veteran’s 1966 fractures, “which healed many, many years ago,” were causing the Veteran “any pain.” The examiner noted that the Veteran’s complaints of paresthesias needed further evaluation. See “Medical Treatment Record – Non-Government Facility,” received November 16, 2004, pages 11-12 of 13. * March 2003 analysis of an EMG study showing no evidence of axonal injury from radiculopathy, ulnar neuropathy, radial or median neuropathy. Left radial sensory, left median sensory, left medial motor, and left ulnar motor NCV were all normal. The examiner noted “the only abnormality” was a “mild slowing” of the left ulnar sensory NCV study across the elbow segment with normal conduction in the forearm segment that was likely due to an old left ulnar axonal nerve injury at the across elbow segment. The examiner further stated that it was not clear if this mild abnormality was related to the Veteran’s previous left mid forearm fracture or not. See Id. at page 7-10 of 13. * August 2004 VA treatment record indicating the Veteran reported increased pain in his left forearm after his private physician canceled his Darvocet prescription. The Veteran was assessed with left arm neuropathy and rule/out carpal tunnel syndrome. See “Medical Treatment Record – Government Facility,” received April 13, 2005, pages 15-17 of 22. * February 2015 x-rays indicating no acute fracture or subluxation, with evidence of previously healed fractures involving the midshaft of the radius and ulna, but no overlying soft tissue abnormality and no acute finding involving the elbow or the wrist. See “CAPRI,” received October 23, 2015, page 4 of 166. * April 2015 evaluation for left ulnar neuropathy, when the Veteran reported a history of pain since service due to aggravation of his preexisting left forearm fractures during service. See Id. at page 54 of 166. * November 2019 medical opinions, both indicating the Veteran’s current angular deformity and ulnar nerve damage was as likely as not related to a re-injury of an old 1966 fracture during service. See “Medical Treatment Record – Non-Government Facility,” received November 26, 2019. A thorough explanation must be provided for the opinion rendered. If the examiner cannot provide the requested opinion without resorting to speculation, s/he should expressly indicate this and provide supporting rationale as to why the opinion cannot be made without resorting to speculation. THE EXAMINER IS ADVISED THAT BY LAW, THE MERE STATEMENT THAT THE CLAIMS FOLDER WAS REVIEWED, AND/OR THE EXAMINER HAS EXPERTISE IS NOT SUFFICIENT TO FIND THE EXAMINATION/OPINION SUFFICIENT. 4. Following the review and any additional development deemed necessary, readjudicate the claim. Should the claim not be granted in its entirety, issue an appropriate supplemental statement of the case (SSOC) and forward the claim to the Board for adjudication. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (West 2014). Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Anwar, Attorney-Advisor The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.