Citation Nr: 20021959 Decision Date: 03/30/20 Archive Date: 03/30/20 DOCKET NO. 18-46 957 DATE: March 30, 2020 ORDER New and material evidence having been received, the previously denied claim of entitlement to service connection for a left-hand condition, is reopened. New and material evidence having been received, the previously denied claim of entitlement to service connection for a right knee condition, is reopened. Entitlement to service connection for a left-hand condition is denied. Entitlement to service connection for a right knee condition is granted. FINDINGS OF FACT 1. The evidence added to the record since the September 2007 rating decision relates to unestablished facts necessary to substantiate the claim of service connection for a left-hand condition. 2. The evidence added to the record since the September 2007 rating decision relates to unestablished facts necessary to substantiate the claim of service connection for a right knee condition. 3. The Veteran’s left-hand condition was not caused by or related to active duty service. 4. The Veteran’s right knee condition may be presumed related to his active duty service. CONCLUSIONS OF LAW 1. The September 2007 rating decision that denied entitlement to service connection for a left-hand condition and a right knee condition is final. 38 U.S.C. §§ 5103, 5103A, 7105(c); 38 C.F.R. §§ 3.104 (a), 20.302(a), 20.1103. 2. New and material evidence has been received to reopen the previously denied claim of entitlement to service connection for a left-hand condition. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. § 3.156 3. New and material evidence has been received to reopen the previously denied claim of entitlement to service connection for a right knee condition. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. § 3.156 4. The criteria for service connection for a left-hand condition are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 5. The criteria for service connection for a right knee condition are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the Army from December 1983 to May 2007. This case is before the Board of Veterans’ Appeals (Board) on appeal from a November 2016 Regional Office (RO) rating decision. New and Material Evidence In order for evidence to be sufficient to reopen a previously disallowed claim, it must be both new and material. If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. See Smith v. West, 12 Vet. App. 312, 314 (1999); Manio v. Derwinski, 1 Vet. App. 140 (1991). Under the relevant regulation, “new” evidence is defined as 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. If it finds that the submitted evidence is new and material, VA may then proceed to evaluate the merits of the claim on the basis of all evidence of record, but only after ensuring that the duty to assist the veteran in developing the facts necessary for the claim has been satisfied. See Elkins v. West, 12 Vet. App. 209 (1999); see 38 U.S.C. § 5103A (eliminates the concept of a well-grounded claim). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low, and consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied. Rather, consideration should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary’s duty to assist or through consideration of an alternative theory of entitlement. See Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010). Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273 (1996). However, for the purpose of establishing whether new and material evidence has been received, the credibility of the such evidence is to be presumed unless “patently incredible” See Duran v. Brown, 7 Vet. App. 216 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). 1. New and material evidence having been received, the previously denied claims of entitlement to service connection for a left-hand condition and right knee condition, is reopened. The Veteran is seeking to reopen a previously denied claim for service connection for a left-hand condition and a right knee condition. Based on the additional evidence added to the record since the previous final denial of the Veteran’s claims, the Board finds that new and material evidence has been added to the record with respect to the claim. The RO denied the Veteran’s claim for entitlement to service connection for a left- hand condition and right knee condition in a September 2007 rating decision. The claim was denied because the evidence did not confirm a diagnosis of arthritis in the Veteran’s left hand. In regard to the Veteran’s claimed right knee condition, the evidence did not show a diagnosis of a right knee condition and no permanent residuals or chronic disease was shown. The Veteran filed a claim to reopen in September 2016 which was denied in a November 2016 rating decision. Following the issuance of a SOC, the Veteran filed a timely Form 9, certifying the issues to the Board. Since the September 2007 rating decision, Veteran has submitted additional records. These records include October 2016 disability benefits questionnaire showing a diagnosis of degenerative arthritis in the Veteran’s right knee and November 2017 medical treatment records from Huntsville clinic showing a diagnosis for degenerative arthritis of his left hand. The Board finds that this submission constitutes new and material evidence with respect to the Veteran’s left-hand and right knee conditions. As the evidence provided shows a missing necessary element of service connection for a left-hand and a right knee condition, the Board concludes that new and material evidence has been added to the record with respect to this claim, and the claim is reopened. Service Connection The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. 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). Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). The Veteran contends that he is entitled to service connection for his left hand and right knee condition. Specifically, he asserts that his left-hand condition is a result of his military service and his right knee condition is due to an injury he sustained during physical fitness training. 2. Entitlement to service connection for a left-hand condition Based on the evidence of record, the Board first finds that service connection is not warranted for the Veteran’s left-hand condition, as the evidence is insufficient to establish that the Veteran has a chronic, diagnosable condition that is related to the symptoms he described in service. First, the service treatment records show that the Veteran complained of tightness in his left hand during a June 2002 examination and was given a diagnosis of osteoarthritis. However, no x-ray results are noted in the Veteran’s treatment record and subsequent service treatment records are silent for complaints of or symptoms of a left-hand condition. Moreover, and importantly, when the Veteran first filed a claim for service connection in 2007, he underwent a VA examination in March 2007, an X-ray of his left hand at that time was negative. It was on this basis that his claim was denied that same year. Since that time, it does not appear that the Veteran’s left hand has developed a disorder characterized by what he described in his current claim as “left hand arthritis.” Specifically, while he has complained of aching so some degree, new X-rays taken in October 2016 again were normal. Moreover, at a VA examination in February 2017, no left hand issues were noted, and his hand was clinically observed to be fully functional. Based on these observations, the Board is left to conclude that the Veteran does not have a left hand disorder as was described in his claim, nor is there any diminishment in function despite some episodes of aching. See Saunders v. Wilkie, 886 F. 3d 1356 (Fed. Cir. 2018). In making this conclusion, the Board would address two additional points. First, the evidence does reflect that the Veteran has been at times diagnosed with left hand arthritis. However, as was noted in a November 2017 treatment note, this was somewhat of a working diagnosis, and the X-rays make clear that such a diagnosis was not clinically warranted. Second, during the course of the appeal, the Veteran has received treatment for a left trigger thumb and for carpal tunnel syndrome. While these disorders may also create symptoms in the left hand, these were not symptoms that were described when the Veteran submitted his claim, nor have these diagnoses been characterized as part of the claim during the appeal period. Thus, while the Board should consider claims broadly and not limit a claim to a specific diagnosis, considering service for carpal tunnel syndrome and trigger thumb would seem to separate and distinct to be considered collectively under the claim on appeal. Cf. Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Board also acknowledges the Veteran’s statements regarding his left-hand pain since active service to be less persuasive. A lay person is competent to report observable symptomatology, such as pain. Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007). However, the specific nature of a disorder is a medical determination and generally must be established by medical findings and opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Thus, to the extent that the Veteran believes that his left-hand pain may be the result of service, he is a lay person without appropriate medical training and expertise to provide a medical nexus opinion regarding the etiology of his pain. The Board concludes that the preponderance of the evidence is against the claim for service connection for a left hand disorder, and there is no doubt to be otherwise resolved. Therefore, the claim for service connection must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 3. Entitlement to service connection for a right knee condition As for the Veteran’s right knee disorder, the Board determines that service connection should be granted. Specifically, when the Veteran filed his initial claim in 2007, he underwent a VA examination in March 2007, where X-rays of the right knee revealed degenerative arthritis. Certain chronic diseases, such as arthritis, are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. For qualifying disorders, this presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). Here, since there is a showing of arthritis within one year of discharge, service connection may be granted on a presumptive basis. Therefore, when considering all the evidence of record, the Board concludes that service connection is not warranted for the Veteran’s left hand disorder, but is warranted for his right knee disorder. The appeal is granted to this extent. 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. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Vample, Associate Counsel