Citation Nr: 21002469 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 17-31 675 DATE: January 13, 2021 ORDER The application to reopen the claim for service connection for a right arm disorder is granted. The application to reopen the claim for service connection for a right hand disorder is granted. Service connection for a right arm disorder is denied. Service connection for a right hand disorder is denied. FINDINGS OF FACT 1. The Veteran had active duty from June 1982 to May 1986; he has been rated at 100 percent disabled since March 2019. 2. Service connection for right arm and right hand disorders were denied in an August 2009 rating decision on the basis that there were no current disabilities regarding the arm and hand. The Veteran did not appeal, and that decision became final. 3. The evidence submitted since the August 2009 rating decision includes complaints of the right arm and hand “going to sleep” and tingling. 4. A right arm and a right hand disorder were not shown in service and are not causally or etiologically related to service or to a service connected disability. CONCLUSIONS OF LAW 1. The August 2009 rating decision, which denied service connection for a right arm disorder and a right hand disorder, is final. 38 U.S.C. § 7105 (2012). 2. The evidence received since the August 2009 rating decision is new and material and the claim for a right arm disorder is reopened. 3 U.S.C. §§ 5103, 5103A, 5107, 5108 (2012); 38 C.F.R. §§ 3.102, 3.156, 3.159 (2020). 3. The evidence received since the August 2009 rating decision is new and material and the claim for a right hand disorder is reopened. 38 U.S.C. §§ 5103, 5103A, 5107, 5108 (2012); 38 C.F.R. §§ 3.102, 3.156, 3.159 (2020). 4. A right arm disorder was not incurred in service. 38 U.S.C. §§ 1131, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2020). 5. A right hand disorder was not incurred in service. 38 U.S.C. §§ 1131, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In February 2020, the Veteran testified before the undersigned Veterans Law Judge. A copy of the transcript has been associated with the claims file. New and Material Evidence to Reopen Claims Turning to the relevant laws and regulations, prior unappealed rating decisions may not be reopened absent the submission of new and material evidence warranting revision of the previous decision. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. “New” evidence means evidence “not previously submitted to agency decisionmakers.” “Material” evidence means “evidence that, by itself or when considered with previous evidence of record, related to an unestablished fact necessary to substantiate the claim.” 38 C.F.R. § 3.156(a). In order to be “new and material” evidence, the evidence must not be cumulative or redundant, and “must raise a reasonable possibility of substantiating the claim,” which has been found to be enabling, not preclusive. See Shade v. Shinseki, 24 Vet. App. 110 (2010). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1991). Procedurally, the Veteran’s claims were denied in August 2009 on the basis that there was no underlying pathology of the right arm or hand. He did not appeal and the rating decision became final. He filed an application to reopen the claims in February 2013, which were reopened by the RO and denied on the merits. Evidence submitted since the last final denial in August 2009 includes an April 2013 VA examination where the Veteran reported numbness and tingling of his right arm and hand. The examiner diagnosed remote history of right shoulder anterior dislocation with residuals. He also underwent an VA examination in November 2017 addressing his complaints related to the right arm and hand. Accordingly, with respect to the request to reopen the claim of service connection for right arm and right hand disorders, the newly-added evidence relates to an unestablished fact (symptoms of numbness and tingling) necessary to substantiate the claim. As such, the appeal is granted to this extent and the claim is reopened. Service Connection Turning to the laws and regulations, service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (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 in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may be granted on a secondary basis for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury under 38 C.F.R. § 3.310. Allen v. Brown, 7 Vet. App. 439 (1995). In order to establish service connection on a secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a link between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Turning to the medical evidence, in a November 2017 VA examination, the Veteran was not diagnosed with any condition of the of the right arm or right hand. The examiner stated there was no nerve condition in either the right arm or hand. He also found that the symptoms in the right arm and hand could not be clearly linked to a service-connected post-operative right shoulder disability since a clear neuro-anatomical connection could not be established. The examiner concluded that the right arm and hand symptoms were less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran’s service connected right shoulder disability. This evidence weighs against the appeal. The Veteran’s private physician completed a Shoulder and Arm Disability Benefits Questionnaire (DBQ) in June 2019; however, the clinician offered no opinion regarding any neurological issues as part of the Veteran’s shoulder disorder. Rather, the focus was on the assessment of the right shoulder and numbness or tingling of the right arm and hand were not reported. In addition, there was no diagnosis of a right arm or hand disorder. Similarly, in a July 2019 VA examination on the Veteran’s shoulder and arm, no issues with the Veteran’s arm and hand were noted. Based on the medical evidence, the evidence does not support a finding that the Veteran has separate and distinct pathology related to the right arm or hand. As no current diagnoses are shown, the medical evidence does not support the first element of service connection on either a direct or secondary basis. The Board has considered the Veteran’s lay statements that his right arm and hand problems were caused by service. At the hearing, he testified that the problems with his right arm and hand may be related to cervical radiculopathy; however, he is not service connected for a cervical spine disorder. If he wishes to file such a claim, he should do so with specificity at the Regional Office. In addition, the issue of an increased rating for a right shoulder disability is not before the Board. Nonetheless, the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. However, he is not competent to offer an opinion as to the etiology of his current right arm and hand symptoms due to the medical complexity of the matter involved. Such competent evidence has been provided by the service records, clinical evidence, and examinations obtained and associated with the claims file. Here, the Board attaches greater probative weight to the clinical findings than to his statements. In light of the above, the preponderance of the evidence is against the claim for service connection and there is no doubt to be otherwise resolved. As such, the appeal is denied. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). L. HOWELL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Gamache, 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.