Citation Nr: 20035167 Decision Date: 05/20/20 Archive Date: 05/20/20 DOCKET NO. 17-59 947 DATE: May 20, 2020 ORDER As new and material evidence sufficient to reopen the previously denied claim for service connection for left carpal tunnel syndrome (CTS) has been received, the application to reopen the claim is granted. As new and material evidence sufficient to reopen the previously denied claim for service connection for right CTS has been received, the application to reopen the claim is granted. Service connection for left CTS is granted. Service connection for right CTS is granted. REMANDED Entitlement to service connection for a respiratory disorder due to asbestos exposure is remanded. FINDINGS OF FACT 1. An unappealed April 2012 rating decision denied service connection for bilateral CTS. 2. Evidence received since the April 2012 decision relates to an unestablished fact necessary to substantiate the Veteran’s claims for entitlement to service connection for left and right CTS. 3. The evidence is at least in equipoise as to whether the Veteran’s left and right CTS are causally/etiologically related to his active duty service. CONCLUSIONS OF LAW 1. The April 2012 rating decision that denied service connection for bilateral CTS is final. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. 2. Evidence received since the April 2012 rating decision is new and material and serves to reopen the Veteran’s claims of entitlement to service connection for a left and right CTS. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for service connection for left and right CTS have been met. 38 U.S.C. § 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1971 to October 1972. By the Veteran’s request, he was scheduled for a videoconference hearing before the Board in January 2020. On the day of the hearing, the Veteran requested instead that the record be held open 90 days for the submission of additional evidence. See January 2020 VA Form 21-4138. As such, the hearing request is considered withdrawn. 38 C.F.R. § 20.704(d). The Board notes also that additional evidence was received from the Veteran in April 2020, and it is considered herein. 1. Whether new and material evidence has been received sufficient to reopen the previously denied claims for service connection for left and right CTS. Generally, a claim that has been denied in an unappealed Regional Office (RO) decision or an unappealed Board of Veterans’ Appeals (Board) decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). The exception is that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108. 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. 38 C.F.R. § 3.156(a). The Board has jurisdictional responsibility to determine on its own whether there is new and material evidence to properly reopen a service-connection claim. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (citing 38 U.S.C. §§ 5108, 7105(c)); see also Barnett v. Brown, 83 F. 3d 1380 (Fed. Cir. 1996); VAOPGCPREC 05-92. The submission of “new and material” evidence is a jurisdictional prerequisite to the Board’s review on the merits of a previously-denied claim. In determining whether evidence is new and material, the credibility of the new evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In an April 2012 rating decision, the RO denied service connection for bilateral CTS. The basis of the denial was that there was no in-service injury/event and there were no diagnoses for left and/or right CTS. The Veteran did not appeal that denial or submit new and material evidence within one year of that decision. Therefore, it became final. 38 U.S.C. § 7105; 38 C.F.R. § 3.156(a), (b). In June 2014, the Veteran submitted his current claim for service connection for bilateral CTS. Such claim has been construed as a request to reopen the previously denied claims for bilateral CTS. The evidence received since the April 2012 rating decision includes updated VA treatment records and an April 2020 private medical opinion. This evidence relates to unestablished facts necessary to substantiate the Veteran’s claim for service connection for a left and right CTS. As such, the Veteran’s claims are reopened. 2. Entitlement to service connection for left and right CTS. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). The Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). With an approximate balance of positive and negative evidence on a relevant issue, VA resolves reasonable doubt in the claimant’s favor. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). The record shows the Veteran has been diagnosed with bilateral CTS. See June 2015 Private EMG Report. Such is sufficient to meet the requirement of a present disability. As for service incurrence, the evidence of record establishes that the Veteran’s duty military occupational specialty (MOS) was as a vehicle mechanic and he has contended that his duties as a vehicle mechanic required that he utilize a studding tool that caused his hands to go numb. See August 2016 Decision Review Officer (DRO) Hearing Transcript. The Veteran’s service treatment records (STRs) also reflect that he had occasional thumb tightness at separation from service. With respect to the final question of whether the Veteran’s bilateral CTS is related to his service, to include his duties as a vehicle mechanic, the Board finds the evidence of record reasonably establishes that a nexus exists. In pertinent part, in April 2020 a private physician rendered a positive etiological opinion indicating that it was more likely that the Veteran’s CTS was due to his military service. The physician explained that the Veteran had recurrent CTS related to his 1986 and 1991 surgeries. He also explained that the Veteran had repeated trauma in the military from running a tire studding machine for 8 to 10 hours a day in extremely cold temperatures and based on his personal experienced and medical literature, repetitive trauma was a known cause of CTS. There are no probative opinions to the contrary. The Board acknowledges the negative nexus opinion provided by the November 2017 VA examiner. Significantly, however, the Board finds this opinion is inadequate for rating purposes because the VA examiner found that there were no reports of numbness, pain, or tingling in the hands, but did not reconcile this finding with the Veteran’s contradictory reports of numbness in both hands during his active duty service. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007). Accordingly, as this opinion is not adequate, it cannot serve as the basis for a denial of service connection. Based on the foregoing, the Board finds that the evidence reasonably establishes that the Veteran’s bilateral CTS is related to his service, and thus service connection is warranted. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 49. REASONS FOR REMAND 1. Entitlement to service connection for a respiratory disorder due to asbestos exposure is remanded. In November 2017, the Veteran underwent a VA examination to evaluate the etiology of his respiratory disorder. The examiner rendered a negative nexus opinion and indicated that the Veteran did not have a past/present diagnosis for a respiratory condition. The examiner explained that the Veteran’s diagnostic testing results from September and November 2017 showed no evidence of interstitial fibrosis and no pleural plagues. He also explained that recent pulmonary function tests showed normal spirometry, lung volumes, and DLCO. Significantly, however, the VA examiner appears to have relied on an inaccurate factual premise because VA treatment records reflect contemporaneous diagnosis/treatment for asthma and chronic obstructive pulmonary disease (COPD). Notably, the Veteran’s VA treatment records reflect that he was using an inhaler/nebulizer for COPD and asthma. See July 2013 and February 2015 VA Treatment records. As such, the Board finds that the November 2017 VA examination is insufficient for rating purposes. Accordingly, remand is warranted for a new VA examination consistent with the directives herein. The matter is REMANDED for the following action: Obtain a VA examination and opinion from an appropriate examiner to determine the nature and etiology of the Veteran’s claimed respiratory disorders. The claims folder (including a copy of this remand) must be provided to and reviewed by the examiner as part of the examination. All indicated tests should be accomplished and all clinical findings reported in detail. a) The examiner should provide diagnoses for any current respiratory disorder, to include COPD and asthma. In rendering this opinion, the examiner must specifically consider and discuss the any previous diagnoses for COPD and asthma noted in the VA treatment records. b) The examiner must determine whether there is clear and unmistakable (obvious, manifest, or undebatable) evidence that any diagnosed respiratory disorder, to include asthma, preexisted the Veteran’s active duty service. c) If it is determined that any respiratory disorder clearly and unmistakably preexisted service, is there clear and unmistakable (obvious, manifest, or undebatable) evidence that the preexisting respiratory disorder was not aggravated beyond the natural progression of the condition by the Veteran’s service, to include conceded in-service exposure to asbestos? The term “aggravated” in the above context refers to a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability. d) If any diagnosed respiratory disorder did not clearly and unmistakably preexist the Veteran’s active duty service, did it at least as likely as not (i.e., 50 percent probability or greater) have its onset during active duty service or is it otherwise related to service, to include conceded in-service exposure to asbestos? In rendering the above opinions, the examiner must specifically consider and discuss the Veteran’s September 1972 separation examination report and report of medical history showing asthma. The examiner is advised that the Veteran is competent to report his symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. If his reports are discounted, the examiner should provide a reason for doing so. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete 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 that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. E. Metzner, 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.