Citation Nr: 21065496 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 18-34 774 DATE: October 26, 2021 ORDER The application to reopen a claim of service connection for right thumb disability is granted. Entitlement to service connection for osteophyte and post traumatic arthritis of the distal interphalangeal joint of the right thumb is granted. FINDINGS OF FACT 1. The Veteran's claim of service connection for right thumb disability was originally denied in an April 2009 rating decision on the basis that there was no medical evidence of any such disability that was incurred in or caused by service; the Veteran did not appeal this decision within one year of its issuance and new and material evidence was not received within that year. 2. Evidence received since the April 2009 agency of original jurisdiction (AOJ) decision includes information that was not previously considered and which relates to unestablished facts necessary to substantiate the claim of service connection for right thumb disability, the absence of which was the basis of the previous denial. 3. The evidence is at least evenly balanced as to whether the Veteran's osteophyte and post traumatic arthritis of the distal interphalangeal joint of the right thumb began during active service. CONCLUSIONS OF LAW 1. The AOJ's April 2009 decision that denied the claim of service connection for right thumb disability is final. 38 U.S.C. § 7105 ; 38 C.F.R. §§ 3.104, 3.156(a)-(b), 19.52(a), 20.1103. 2. The evidence received since the April 2009 AOJ decision is new and material and reopening of the claim of service connection for right thumb disability is therefore warranted. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). 3. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for osteophyte and post traumatic arthritis of the distal interphalangeal joint of the right thumb 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 on active duty from November 1973 to November 1976. These matters come before the Board of Veterans' Appeals (Board) from a November 2017 rating decision. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at an October 2021 hearing. A transcript of the hearing has not yet been associated with the claims file. However, in light of the fact that the Board is awarding service connection for osteophyte and post traumatic arthritis of the distal interphalangeal joint of the right thumb (thus reflecting a full grant of the benefit sought), and the fact that there is no information in the hearing transcript that will affect the decision herein, the transcript is not necessary at this time. As for characterization of the issues on appeal, a claim of service connection for right thumb disability was denied by way of a final April 2009 rating decision. Where the claim in question has been finally adjudicated, the Board must initially determine whether new and material evidence has been submitted with regard to the claim of service connection for right thumb disability. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Only where the Board concludes that new and material evidence has been received does it have jurisdiction to consider the merits of this claim. Hickson v. West, 11 Vet. App. 374, 377 (1998). Therefore, the Board has included the issue of whether new and material evidence has been received to reopen the claim of service connection for right thumb disability. I. Application to Reopen Generally, an AOJ decision denying a claim which has become final may not thereafter be reopened and allowed. 38 U.S.C. § 7105 (d)(3). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108. New evidence is defined as existing evidence not previously submitted to VA, and material evidence is defined as 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 newly presented evidence is presumed to be credible for purposes of determining whether it is new and material. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). When evaluating the materiality of newly submitted evidence, the focus must not be solely on whether the evidence remedies the principal reason for denial in the last prior decision; rather the determination of materiality should focus on whether the evidence, taken together, could at least trigger the duty to assist or consideration of a new theory of entitlement. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). For the purpose of determining whether new and material evidence has been presented to reopen a claim, the evidence for consideration is that which has been presented or secured since the last time the claim was finally disallowed on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The application to reopen a claim of service connection for right thumb disability The Veteran's claim of service connection for right thumb disability was originally denied in an April 2009 rating decision on the basis that there was no medical evidence of any such disability that was incurred in or caused by service. Specifically, the AOJ explained that although there was evidence that the Veteran sustained a chip fracture of the right distal phalanx in service, there was no other evidence of complaints or treatment for the right thumb in service and post-service treatment records showed no evidence of complaints or treatment for the right thumb. The Veteran was notified of the April 2009 decision, he did not appeal the decision within one year of its issuance, and new and material evidence was not received within that year. Therefore, the April 2009 decision became final. See 38 U.S.C. § 7105 (d)(3); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 19.52(a), 20.1103. In a December 2016 rating decision, the AOJ denied service connection for right thumb disability on the basis that the claimed disability was not incurred in or caused by service. Specifically, the AOJ explained that although the Veteran was treated for thumb problems in service, a persistent disability was not present in service, post-service treatment records did not show any evidence of complaints or treatment for right thumb pain, there was no continuity of symptoms since service, and a VA examiner opined that the Veteran's claimed right thumb disability was not likely incurred in or caused by service. The Veteran did not appeal the December 2016 decision within one year of its issuance. Regardless, in September 2017, he submitted an August 2017 examination report from Guam Regional Medical which includes a diagnosis of post traumatic arthritis of the distal interphalangeal joint of the right thumb as a result of the Veteran's injury sustained in service in 1975. In the November 2017 rating decision, the AOJ readjudicated and again denied the claim of service connection for right thumb disability. The current appeal originates from the November 2017 decision. In light of the evidence that was associated with the Veteran's claims file, as described above, the Board finds that new and material evidence was received within a year of the December 2016 rating decision. Hence, that decision did not become final as to the claim of service connection for right thumb disability. See Bond, 659 F.3d at 1362; Muehl v. West, 13 Vet. App. 159, 161 (1999) (holding that records constituting new and material evidence received within one year after AOJ decision rendered AOJ decision non-final); 38 C.F.R. § 3.156 (a), (b). Therefore, the Board will consider the evidence received since the April 2009 rating decision to determine whether it is new and material. The pertinent new evidence received since the April 2009 denial of service connection for right thumb disability includes the August 2017 examination report from Guam Regional Medical. This additional evidence reflects that the Veteran was diagnosed as having post traumatic arthritis of the distal interphalangeal joint of the right thumb as a result of his injury sustained in service in 1975. Therefore, the additional evidence pertains to elements of the claim of service connection for right thumb disability that were previously found to be lacking and raises a reasonable possibility of substantiating the claim by indicating that the Veteran has current right thumb disability that was incurred in service. The evidence is, therefore, new and material, and the claim of service connection for right thumb disability is reopened. II. Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected; if a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101(3) or 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, such chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101(3), 1112(a)(1), 1113; 38 C.F.R. §§ 3.307(a), 3.309(a). Arthritis is included among the list of chronic diseases. Although entitlement to service connection on any of the presumptive bases noted above may not be established, a veteran is not precluded from establishing service connection on a direct basis. See 38 U.S.C. § 1113 (b); 38 C.F.R. § 3.303 (d) (the availability of service connection on a presumptive basis does not preclude consideration of service connection on a direct basis). Entitlement to service connection for osteophyte and post traumatic arthritis of the distal interphalangeal joint of the right thumb The Veteran contends that he has current right thumb disability which had its onset in service. The Board finds, for the following reasons, that the Veteran has current diagnoses of osteophyte and post traumatic arthritis of the distal interphalangeal joint of the right thumb, and that the evidence is at least evenly balanced as to whether this disability began during active service. The August 2017 examination report from Guam Regional Medical and an October 2017 VA hand examination report show that the Veteran has been diagnosed as having osteophyte and post traumatic arthritis of the distal interphalangeal joint of the right thumb. Therefore, current right thumb disability has been demonstrated. Moreover, there is evidence of right thumb injury in service and evidence of continuous symptoms in the years since service. In this regard, service treatment records reflect that in December 1975, the Veteran smashed his right thumb in a car door and sustained a chip fracture of the right distal phalanx. Moreover, his post-service medical records and lay statements indicate that he has experienced continuous right thumb symptoms (e.g., pain and limited motion) in the years since service. The Veteran is competent to report continuous right thumb symptoms in the years since service. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Also, there is no evidence that explicitly contradicts his reports and they are generally consistent with the evidence of record and the circumstances of his service. Therefore, the Board concludes that the Veteran's reports of continuous right thumb symptoms in the years since service are credible. The physician who conducted a November 2016 VA hand examination opined that the Veteran's claimed right thumb disability was not likely ("less likely than not"/"less than 50 percent probability") incurred in or caused by service. The examiner reasoned that the Veteran injured the distal aspect of his right thumb in December 1975 and the lateral aspect of the wound was sutured, but records did not show any complaint of right thumb pain thereafter. Post-service treatment records showed no evidence of complaints or treatment for right thumb pain. In 2009, the Veteran sought treatment and x-rays showed a history of bilateral hand arthritis and degenerative changes. Overall, there was no basis in the medical records to link degenerative changes of the hand or right thumb to the Veteran's injury in 1975. The physician who conducted the August 2017 examination at Guam Regional Medical diagnosed the Veteran as having severe post traumatic arthritis of the distal interphalangeal joint of the right thumb "as a result of the injury sustained in 1975." There was no further explanation or rationale provided for this opinion. The physician who conducted the October 2017 VA hand examination opined that the Veteran's claimed right thumb disability was not likely ("less likely than not"/"less than 50 percent probability") incurred in or caused by service. The examiner reasoned that a 2009 x-ray interpretation of osteophytes seen at the bilateral thumb interphalangeal joints and the bilateral second metacarpophalangeal joints, right third metacarpophalangeal joint, was indicative of CPPD and not indicative of right thumb trauma (from service smashing right thumb in a car door which required only stitches). The Veteran was able to complete his military service without any permanent profiles or medical boards for his thumb condition and was able to work for many years after service with a fire department and as a heavy equipment operator without complications or limitations. The November 2016 and October 2017 opinions are both of limited probative value because they are largely based on the absence of clinical evidence of treatment for right thumb symptoms for many years following service, and they do not take into account the Veteran's competent and credible reports of continuous right thumb symptoms in the years since service. In this regard, a medical opinion is inadequate if it is based solely on the absence of documentation in the record and does not take into account the Veteran's reports of symptoms and history (even if recorded in the course of the examination). Dalton v. Peake, 21 Vet. App. 23 (2007). Although the physician who provided the August 2017 diagnosis and opinion did not provide any specific explanation or rationale for the opinion, the physician provided the opinion based upon treatment of the Veteran and consideration of his reported history. This opinion is therefore entitled to some probative weight. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (the fact that the rationale provided by an examiner "did not explicitly lay out the examiner's journey from the facts to a conclusion," did not render the examination inadequate); Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). There is no medical opinion that is contrary to a finding that the Veteran's peripheral neuropathy is related to his herbicide agent exposure in service. In sum, the evidence reflects that the Veteran experienced a right thumb injury in service and that there have been continuous symptoms in the years since service. He has been diagnosed as having current osteophyte and post traumatic arthritis of the distal interphalangeal joint of the right thumb. Also, there is a probative medical opinion that the Veteran's claimed right thumb disability is related to his injury in service. There is no adequate medical opinion that is contrary to a conclusion that the current osteophyte and post traumatic arthritis of the distal interphalangeal joint of the right thumb had its onset in service. Thus, the evidence is at least evenly balanced as to whether this disability had its onset in service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for osteophyte and post traumatic arthritis of the distal interphalangeal joint of the right thumb is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. See also Buchanan, 451 F.3d at 1335 ("[N]othing in the regulatory or statutory provisions [relating to evidence to be considered] require both medical and competent lay evidence; rather, they make clear that competent lay evidence can be sufficient in and of itself"). Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Elwood, 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.