Citation Nr: 20004354 Decision Date: 01/17/20 Archive Date: 01/17/20 DOCKET NO. 17-25 980 DATE: January 17, 2020 ORDER New and material evidence having been received, the claim of entitlement to service connection for an arthritic disorder is reopened. REMANDED Entitlement to service connection for an arthritic disorder of the left hand and wrist is remanded. FINDINGS OF FACT 1. An unappealed November 2011 rating decision denied service connection for an arthritic and left hand disorder. 2. Evidence added to the record since the November 2011 rating decision, which was not previously of record and which is not cumulative of other evidence of record, raises a reasonable possibility of substantiating the claim for entitlement to service connection for an arthritic disorder. CONCLUSIONS OF LAW The criteria for reopening the claim for entitlement to service connection for an arthritic disorder have been met. 38 U.S.C. § 5108; 39 C.F.R. § 3.156. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the Army from July 1978 to June 1981. This matter comes before the Board of Veterans Appeals (Board) on appeal from a rating decision issued in February 2015 by a Department of Veterans Affairs (VA) Regional Office (RO) determining that new and material evidence had not been received to reopen the claim for service connection for an arthritic disorder. A notice of disagreement (NOD) was received from the Veteran in June 2015. The RO reconsidered the claim in July 2015, based on the Veteran’s request for reconsideration; and, the claim was again denied. A second NOD was filed in August 2015. Both NODs were timely with respect to the February 2015 decision. A statement of the case was provided to the Veteran in April 2017. The Veteran perfected his appeal later that month. In August 2019, the Veteran testified at a Travel Board Hearing before the undersigned Veterans Law Judge. A copy of the transcript of that hearing is of record. New and Material Evidence Having Been Received, the Claim of Entitlement to Service Connection for an Arthritic Disorder is Reopened. Irrespective of the RO’s actions, it is the Board’s responsibility to consider whether it is proper for a claim to be reopened. Barnett v. Brown, 93 F.3d 1380 (Fed. Cir. 1996). Generally, unappealed rating decisions are final with the exception that a claim may be reopened by the submission of new and material evidence. When an appellant seeks to reopen a claim based on new and material evidence, the VA must first determine whether the additional evidence is “new and material.” Second, if the VA determines that new and material evidence has been added to the record, the claim is reopened and the VA must evaluate the merits of the appellant’s claim in light of all the evidence, both new and old. Manio v. Derwinski, 1 Vet. App. 140 (1991). In determining whether the evidence presented or secured since the prior final disallowance of the claim is new and material, the credibility of the evidence is generally presumed. Cox v. Brown, 5 Vet. App. 95 (1993). New evidence means 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. 39 C.F.R. § 3.156(a). The regulation does not require new and material evidence as to each previously unproven element of a claim and creates a low threshold for reopening claims. 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of determining whether new and material evidence has been submitted, the credibility of the new evidence is presumed; its weight is not presumed. Justus v. Principi, 3 Vet. App. 510 (1992). Service connection for arthritis was initially denied in a November 2011 rating decision. The RO determined that the Veteran’s service treatment records were negative for complaints, treatment or diagnosis for the conditions identified as arthritis. The RO also determined that there was no link between the Veteran’s diagnosed medical condition and military service. The Veteran did not file a notice of disagreement or new, relevant evidence within one year of the November 2011 rating decision. As such, the rating decision became final. Evidence received since the November 2011 rating decision includes the Veteran’s August 2019 testimony wherein he explained that in the course of in-service treatment for swelling to his left hand he was told that it could be arthritis. He further testified that the swelling in his hand went all the way to his elbow. His evidence is new to the record, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim. Accordingly, the Veteran’s petition to reopen his claim for entitlement to service connection for an arthritic disorder is granted. REASONS FOR REMAND Entitlement to Service Connection for an Arthritic Disorder of the Left Hand and Wrist is Remanded. An arthritic disorder following military service is demonstrated by the Veteran’s VA treatment records, which show mild degenerative disease in the left hand and wrist. See July 2012 X-ray. He argues that this arthritic condition of the left hand had its initial onset in service or is otherwise etiologically related to an injury to the hand that he sustained in service. For that reason, the claim as an arthritic disorder of the left hand and wrist as the scope of the claim cannot be limited by the terminology used by the Veteran, and instead must include any disability reasonably encompassed by the description of the claim, the described symptoms, and any other relevant evidence of record. Clemons v. Shinseki, 23 Vet. App. 1 (2009). At his August 2019 hearing, the Veteran testified that he sustained an in-service injury to his left hand causing swelling and stiffness in his left hand extending to his elbow, to include his wrist that is etiologically related to his currently diagnosed arthritic disorder. The Veteran was afforded a VA examination in June 2011, which was limited to a left hand condition. The examiner stated that she was unable to opine whether it is at least as likely as not that the current left hand condition is due to injury, disease or treatment while in service because the records documenting pain in the Veteran’s left hand are post military service. The examiner found there were no records during military service which documents a condition of the hand. That is at odds with service treatment records that detail the Veteran’s complaints of left wrist pain along with the notation of “possible arthritis” in relationship to the left hand/wrist. The above referenced conflict in findings significantly limits the overall probative value of the June 2011 VA examination. An additional VA examination is warranted. Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007). The Board notes that the Veteran has submitted a November 2019 letter from his VA health care provider. However, it does not provide an opinion and rationale regarding the etiology of the Veteran’s current arthritic disorder. The Board further notes that the Veteran testified to treatment received in 1985 for arthritis at a private clinic, Concentra Clinic. Even though the Veteran stated that he sought treatment “one or two times,” and did not believe the clinic is still in operation, efforts should be undertaken to obtain these records on Remand. The matters are REMANDED for the following action: 1. The Agency of Original Jurisdiction should contact the Veteran and request that he identify the names, addresses, and approximate dates of treatment for all VA and private (non-VA) health care providers who have treated him for his arthritic disorder, to include Concentra Clinic. The Veteran should be requested to sign any necessary authorization for release of private treatment records to the VA, and appropriate steps should be made to obtain any identified records. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any arthritic disorder to include as impacting the Veteran’s left hand and wrist. After a review of the claims file and examination, the examiner should address the following: (a) Identify/diagnose any arthritic disorder or disability of the left hand/wrist that presently exists or that has existed during the appeal period. (b) For any diagnosed disability of the left hand/wrist, the examiner must address whether any diagnosed arthritis at least as likely as not (i) had it initial onset during active service, (ii) manifested within one year after discharge from service, or (3) is otherwise related to the Veteran’s active service. The examiner must address the clinical significance, if any, of the documented report of left wrist sprain and probable arthritis along with the Veteran’s report of experiencing pain and swelling in his left hand extending up to his elbow since service. Rationale for the requested opinion shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, provide an explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or the limits of current medical knowledge with respect to the question. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Smith, Associate Counsel 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.