Citation Nr: 20004793 Decision Date: 01/21/20 Archive Date: 01/21/20 DOCKET NO. 17-13 953 DATE: January 21, 2020 ORDER New and material evidence having been received, the service connection claim for a right wrist disability is reopened. Service connection for a right wrist disability is granted. FINDINGS OF FACT 1. In a March 2008 rating decision, the RO denied the Veteran’s service connection claim for a right wrist disability, which he did not appeal and it became final. 2. Additional evidence received since the March 2008 rating decision is not cumulative or redundant of the evidence at the time of the decision and raises a reasonable possibility of substantiating the Veteran’s claims of entitlement to service connection for a right wrist disability. 3. Resolving reasonable doubt in the Veteran’s favor, his right wrist disability is at least as likely as not related to his in-service injury. CONCLUSIONS OF LAW 1. The March 2008 rating decision that denied the Veteran’s service connection claim for a right wrist disability is final. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. 2. Following the final rating decision in March 2008, new and material evidence has been received to reopen the service connection claim for a right wrist disability. 38 U.S.C. § 5108, 7105(c); 38 C.F.R. § 3.156(a), 20.1103. 3. The criteria for service connection for a right wrist disability are met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1967 to November 1968. The Veteran testified before the undersigned Veterans Law Judge during an October 2019 hearing. This matter is on appeal from an August 2014 rating decision. 1. New and material evidence having been received, the service connection claim for a right wrist disability A decision of the RO becomes final and is not subject to revision on the same factual basis unless an appeal is initiated within one year of the notice of decision, or within 60 days of the issuance of the statement of the case (SOC), whichever is later. 38 U.S.C. § 7105; 38 C.F.R. § 19.129, 19.192, 20.302, 20.1103. If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108. “New” evidence is evidence not previously submitted to agency decision makers. “Material” evidence is 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 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). In determining whether evidence is new and material, the “credibility of the evidence is to be presumed.” Justus v. Principi, 3 Vet. App. 510, 513 (1992). However, VA need not accept the patently incredible for purposes of reopening. Duran v. Brown, 7 Vet. App. 216 (1994). The Board must consider the question of whether new and material evidence has been received because it goes to the Board’s jurisdiction to reach the underlying claim and adjudicate the claim de novo. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (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 that regard is irrelevant. Barnett, supra. Further analysis, beyond consideration of whether the evidence received is new and material, is neither required nor permitted. Id. at 1384. See also Butler v. Brown, 9 Vet. App. 167, 171 (1996). In July 2007, the Veteran filed a claim for service connection for a right wrist disability. In an unappealed March 2008 rating decision, the RO denied service connection, finding there was no record of treatment for a right wrist injury in service and no evidence showing current treatment for a right wrist injury. The Veteran did not file a notice of disagreement (NOD), and the March 2008 rating decision became final. See 38 U.S.C. § 7105; 38 C.F.R. § 3.104, 20.200, 20.302, 20.1103. Since the March 2008 decision, the Veteran has submitted testimony in regard to his in-service injury and medical records that show a current disability, arthritis, that indicate a link between the in-service injury and his current right wrist disability. This additional evidence is new (as it was not considered by the RO in March 2008) and directly addresses the unestablished fact of a current disability and a nexus to service. In tending to substantiate the Veteran’s claim by bolstering one element of a claim for service connection, the new evidence raises the reasonable possibility of substantiating the claim for service connection for that disorder. Therefore, the Board concludes that evidence submitted since the March 2008 rating decision is new and material, and thus the claim for service connection for a right wrist disability is reopened. 2. Service connection for a right wrist disability The Veteran contends that his current right wrist disability is a result of his in-service injury that occurred when his rifle was tangled in brush and resulted in his right wrist being dislocated during a search and destroy mission. The Board concludes that the Veteran has a current diagnosis of arthritis of the right wrist that is related to his in-service injury. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). The July 2014 VA examination report shows the Veteran had a current diagnosis of right wrist arthritis, and the VA examiner opined that the Veteran’s right wrist disability was less likely than not related to service. The rationale was there was no supporting medical documentation of a right wrist injury that was incurred in, caused by or related to service. The examiner further noted there was no evidence the Veteran’s right wrist disability required continuity of care since separation from service and it was unknown when an old injury would have occurred to cause the current right wrist arthritis. A March 2017 private opinion from Dr. M.K. noted a diagnosis of arthritis of the right wrist. Dr. M.K. opined it was at least as likely as not the Veteran originally injured his right wrist while serving on active duty. Dr. M.K. noted the Veteran’s report of self-treatment in service, as well as the letter from a fellow service member that noted the photograph of the Veteran’s right wrist bandage was field expedient treatment for the injury. Dr. M.K. noted the photograph of the Veteran with a bandaged right wrist in service confirmed the injury occurred and was treated. Dr. M.K. also noted the Veteran’s self-treatment since service. Finally, he opined the medical link was clear as the diagnosis of scapholunate advanced collapse from a scapholunate ligament injury occurred with the wrist hyperextension or wrist dislocation in service. Dr. M.K. noted X-rays revealed bone on bone arthritis with cystic avascular necrosis of the scaphoid and the lunate, which was clear evidence for scapholunate instability and slack wrist, scapholunate advanced collapse as a result of a traumatic scapholunate ligament injury. Dr. M.K. noted that to a reasonable degree of medical certainty, the current degenerative wrist condition was caused by the injury that occurred in service and is the result of that hyperextension or dislocation of the right wrist. The July 2014 VA examination report is of less probative value than the March 2017 private opinion because the July 2014 VA examiner did not address the Veteran’s chronic right wrist symptomatology since the in-service injury. Dr. M.K. did not review the Veteran’s service treatment records when forming his June 2017 private opinion; however, he did take into consideration the Veteran’s account of the in-service injury. Weighing the probative values of these opinions, both for and against service connection, the Board finds that the evidence is at least in equipoise. Therefore, the Board resolves reasonable doubt in the Veteran’s favor and grants service connection for a right wrist disability. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Kelly A. Gastoukian 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.