Citation Nr: 21062831 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 17-45 630 DATE: October 12, 2021 ORDER New and material evidence having been received, the appeal to reopen the claim of entitlement to service connection for residuals of a fracture of the right hand, to include a scar, is granted. REMANDED Entitlement to service connection for residuals of a right wrist injury is remanded. Entitlement to service connection for residuals of a fracture of the right hand, to include a scar, is remanded. FINDINGS OF FACT 1. A January 2007 rating decision denied the claim of entitlement to service connection for residuals of a fracture of the right hand; the Veteran did not file a timely notice of disagreement, and no evidence was received within one year of the rating decision, nor were new, relevant service records received any time thereafter. 2. The evidence associated with the claims file subsequent to the January 2007 rating decision denying service connection for residuals of a fracture of the right hand is not cumulative, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The January 2007 rating decision, which denied service connection for residuals of a fracture of the right hand, became final. 38 U.S.C. § 7105(a); 38 C.F.R. §§ 20.302, 20.1103. 2. The evidence received subsequent to the January 2007 rating decision denying service connection for residuals of a fracture of the right hand is new and material, and the claim is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the Appellant in this case, had active service in the U.S. Navy from September 1992 to December 1999, and from January 2002 to September 2003. This matter comes before the Board of Veterans' Appeals (BVA or Board) from November 2016 and June 2017 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). On his September 2017 VA Form 9, the Veteran requested a videoconference hearing before the Board. A virtual tele-hearing was scheduled for August 11, 2021, at the Houston RO, and notice of the hearing date and place was provided to both the Veteran and his representative. However, the Veteran did not report for the hearing, and no request for postponement was received and granted prior to the hearing date. Under 38 C.F.R. § 20.704(d), when a veteran fails to appear for a scheduled hearing and no request for postponement is received, the claim is processed as though the request for hearing had been withdrawn. Therefore, this case will be processed as though the request for a hearing was withdrawn. New and Material Evidence 1. New and material evidence having been received, the appeal to reopen the claim of entitlement to service connection for residuals of a fracture of the right hand, to include a scar, is granted. In March 2006, the Veteran filed an initial claim for service connection for residuals of a fracture of the right hand. The claim was denied in a January 2007 rating decision, in which the RO found no evidence of a current disability. The Veteran did not file a timely notice of disagreement (NOD), and no evidence was received within one year of the January 2007 rating decision, nor were new, relevant service records received at any time thereafter. 38 C.F.R. § 3.156(b) and 3.156(c). Consequently, the January 2007 rating decision became final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. In April 2016, the Veteran filed a request to reopen his claim of entitlement to service connection for residuals of a fracture of the right hand. In the November 2016 rating decision on appeal, the RO reopened and denied the claim on the merits. Based on the procedural history outlined above, the issue for consideration with respect to the Veteran's claims is whether new and material evidence has been received to reopen the claim of entitlement to service connection for residuals of a fracture of the right hand. Evidence added to the record since the time of the last final denial of the right hand claim in January 2007 includes a May 2016 VA examination report indicating that the Veteran reported that he was unable to fully close his right hand. The Board finds that this evidence constitutes new and material evidence as it tends to support the existence of a current right hand disability, which was the basis for the previous denial of the claim. In this regard, the Board notes that the threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Therefore, the Board finds that the evidence added to the record since the last final January 2007 denial of the right hand claim constitutes new and material evidence, and that the criteria under 38 C.F.R. § 3.156(a) have been satisfied; therefore, the claim of entitlement to service connection for residuals of a fracture of the right hand is reopened. REASONS FOR REMAND 1. Entitlement to service connection for residuals of a right wrist injury is remanded. The Veteran's service treatment records show that in October 1994, he reported right wrist pain for the prior 2 months. He stated that the pain had become progressively worse since deployment to Spain, during which he fell and used his right hand to brace himself. On examination, he had full range of motion with no complaints of pain or tenderness, but he had increased pain with hyperextension. The clinician assessed a soft tissue injury and prescribed Motrin. About a week later, the Veteran reported ongoing right wrist pain with no relief, stating the pain was constant and increased when doing pushups or bending the wrist too often. Notably, he stated that he used his right wrist a lot in his military specialty as a mechanic. On physical examination, he had full strength and full but painful range of motion, and no edema or deformities. The clinician assessed rule out carpal tunnel syndrome or soft tissue inflammation. He was given light duty for 7 days with no use of the right wrist and a wrist wrap. At the May 2017 VA wrist examination, the examiner diagnosed right wrist tendinitis and opined that the current tendinitis was not related to active service, reasoning that tendinitis is due to the overuse of the wrist over time. The examiner noted the 2 treatment records documenting right wrist pain in October 1994 but stated that the negative September 1996 separation and October 2001 entrance examination reports indicated that the wrist condition had resolved. The Board finds that the May 2017 VA examiner's rationale is inadequate, as the examiner did not discuss the Veteran's statements, which are documented in his service treatment records, that he had experienced 2 months of wrist pain and that he described the wrist pain as constant. Moreover, the examiner stated that tendinitis was caused by overuse, and the Veteran's service treatment records show that he reported that he used his right wrist frequently in his job as a mechanic. Therefore, a new VA examination and opinion is necessary which properly addresses the documentation of at least 2 months of wrist pain in service as well as the Veteran's report of frequent use of the right wrist in performing his military duties. 2. Entitlement to service connection for residuals of a fracture of the right hand, to include a scar, is remanded. Service treatment records show that in March 1995, following trauma to the right hand within the past day, an x-ray of the right hand was taken which showed a comminuted fracture of the base of the third metacarpal of the right hand. The Veteran was instructed to apply a splint to the right arm and return in several days. In October 2001, a right third metacarpal scar was noted on examination. In June 2002, the Veteran presented with blunt trauma to his right hand. He had swelling for the past week-and-a-half. On examination, there was edema, decreased strength, and decreased range of motion. The clinician assessed a soft tissue injury to the right hand, and prescribed RICE and physical therapy. At the May 2016 VA hand and fingers examination, the examiner stated that there was no objective evidence to support a current diagnosis for the claimed broken right hand at this time, and thus stated that there was no current right hand disability that was related to the in-service right hand injury. The Veteran, however, reported that he could no longer fully close his right hand. In Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), the Federal Circuit held that the term "disability" as used in 38 U.S.C. § 1110 "refers to the functional impairment of earning capacity, not the underlying cause of said disability," and held that "pain alone can serve as a functional impairment and therefore qualify as a disability." Id. at 1363. In other words, where pain alone results in functional impairment, even if there is no identified underlying diagnosis, it can constitute a disability. Thus, in light of the Veteran's report that he is unable to fully close his right hand, the Board finds that a new VA examination and opinion is necessary to address whether any residual functional impairment of the right hand is related to active service, to include either the March 1995 or June 2002 right hand injuries. The matters are REMANDED for the following action: 1. Afford the Veteran an opportunity to attend a VA examination with an appropriate specialist regarding the nature and etiology of his right wrist disability. Any and all indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished, and a rationale for any opinion expressed should be provided. The claims file, including a copy of this decision, must be made available to the examiner for review of the history in conjunction with the examination, and the examination report should reflect that such review was accomplished. (a.) The examiner should first identify any and all current right wrist disabilities. (b.) The examiner should offer the following opinion: Is it at least as likely as not (i.e., to at least a 50/50 degree of probability) that the Veteran's right wrist disability was incurred during or caused by active service? The examiner must discuss and consider the October 1994 service treatment records which show that the Veteran reported 2 months of right wrist pain that increased with repetitive bending of the wrist and that he used his right wrist frequently in his military specialty as a mechanic. Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. All opinions are to be accompanied by a rationale consistent with the evidence of record. A discussion of the pertinent evidence, relevant medical treatises, and generally accepted medical principles is requested. If the examiner cannot provide an opinion without resorting to speculation, he or she shall provide complete explanations stating why this is so. In so doing, the examiner shall explain whether any 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. 2. Afford the Veteran an opportunity to attend a VA examination with an appropriate specialist regarding the nature and etiology of his right hand disability. Any and all indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished, and a rationale for any opinion expressed should be provided. The claims file, including a copy of this decision, must be made available to the examiner for review of the history in conjunction with the examination, and the examination report should reflect that such review was accomplished. (a.) The examiner should first identify any and all current right hand disabilities, to include notation of any scars, and description of any functional impairment of the right hand. The examiner must document any functional impairment described by the Veteran, to include commentary on his statement at the May 2016 VA hand examination that he was unable to fully close his right hand. (b.) The examiner should offer the following opinion: Is it at least as likely as not (i.e., to at least a 50/50 degree of probability) that the Veteran's right hand disability, to include any functional impairment, even if there is no underlying diagnosis, was incurred during or caused by active service? Again, the examiner must discuss and consider any functional impairment of the right hand in rendering their opinion and must address both the March 1995 and June 2002 right hand injuries documented in the service treatment records. Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. [CONTINUED ON NEXT PAGE] All opinions are to be accompanied by a rationale consistent with the evidence of record. A discussion of the pertinent evidence, relevant medical treatises, and generally accepted medical principles is requested. If the examiner cannot provide an opinion without resorting to speculation, he or she shall provide complete explanations stating why this is so. In so doing, the examiner shall explain whether any 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. Cynthia M. Bruce Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Sherrard, 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.