Citation Nr: A21016502 Decision Date: 10/07/21 Archive Date: 10/07/21 DOCKET NO. 190909-29454 DATE: October 7, 2021 ORDER New and relevant evidence has been received to readjudicate the claim of entitlement to service connection for residuals of a left wrist injury. REMANDED Entitlement to service connection for residuals of a left wrist injury is remanded. FINDINGS OF FACT 1. In a July 2017 Board decision, the claim for entitlement to service connection for residuals of a left wrist injury was denied. 2. The evidence received since the July 2017 Board decision, regarding service connection for residuals of a left wrist injury, tends to prove or disprove the claim. CONCLUSIONS OF LAW 1. The July 2017 Board decision, denying service connection for residuals of a left wrist injury, is final. 38 U.S.C. § 7104 (2012); 38 C.F.R. §§ 20.203, 20.1100 (2020). 2. New and relevant evidence has been received since the July 2017 Board decision to readjudicate service connection for residuals of a left wrist injury. 38 U.S.C. §§ 1131, 5108 (2012); 38 C.F.R. §§ 3.156(d), 3.2501 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from March 1983 to June 1989. The rating decision on appeal was issued in August 2019 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In the June 2019 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) (NOD), the Veteran elected the Evidence Submission option; therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran or his attorney within 90 days of the NOD. 38 C.F.R. § 20.303. Before reaching the merits of the claim for residuals of a left wrist injury, the Board must first determine whether new and relevant evidence has been received to readjudicate the previously denied claim. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). Therefore, the Board has recharacterized this issue accordingly. Evidence was added to the claims file during a period of time when new evidence was not allowed. As the Board is remanding the claim of service connection for residuals of a left wrist injury for further development, this additional evidence will be considered by the AOJ in the adjudication of the claim. Whether new and relevant evidence has been received to readjudicate a previously denied claim of entitlement to service connection for residuals of a left wrist injury The Board has no jurisdiction to consider a claim based on the same factual basis as a previously disallowed claim. 38 U.S.C. § 7104(b); King v. Shinseki, 23 Vet. App. 464 (2010); DiCarlo v. Nicholson, 20 Vet. App. 52, 55 (2006). However, VA will readjudicate a claim if new and relevant evidenced is presented or secured. 38 C.F.R. § 3.156(d). "Relevant evidence" is evidence that tends to prove or disprove a matter in issue. 38 C.F.R. § 3.2501(a)(1). The questions in this case are whether the Veteran submitted evidence after the prior final denial in the legacy system of his claim for service connection for residuals of a left wrist injury, and if so, whether that evidence is new and relevant to his claim. In August 2016, the Board remanded the issue of service connection for residuals of a left wrist injury for additional evidentiary development. In the July 2017 Board decision, service connection for residuals of a left wrist injury was denied because the evidence of record did not show arthritis of the left wrist was manifested during active service, manifested within the first year after separation from service, or attributed to service, nor was there a nexus between current left wrist ganglion cyst and in-service left wrist sprain. The Veteran was notified of this action and of his appellate rights but did not file an appeal to the United States Court of Appeals for Veterans Claims (Court) for the July 2017 Board decision. The Veteran's submission of VA Form 21-0958 (NOD) in August 2017 was an improper attempt at appealing the July 2017 Board decision, and the Veteran was notified of such in a March 2019 notice letter. Therefore, the July 2017 Board decision is final. See 38 U.S.C. § 7104; 38 C.F.R. §§ 20.203, 20.1100. On July 10, 2019, the Veteran's request to readjudicate his claim for residuals of a left wrist injury was obtained and associated with the record. In the August 9, 2019 VA rating decision on appeal, the AOJ denied readjudication of the claim and found that the evidence submitted was not new and relevant. Evidence received since the July 2017 Board decision until August 9, 2019 and from September 9, 2019 to December 18, 2019 includes buddy statements from R. S. and F. B. (associated with the claims file in July 2019) and a VA Form 21-4138 by the Veteran (associated with the claims file on September 9, 2019). Specifically, R. S. reported playing in a basketball game with the Veteran in 1984, witnessing the Veteran take a fall and holding his left hand as he left the game, and observing the Veteran on base after the game wearing a cast on the left wrist. F. B. reported that during a basketball game in 1984 he witnessed the Veteran fall on the left wrist and hold his hand as he left the game and he saw the Veteran around the casern (barracks) wearing a cast on the left wrist. Additionally, the Veteran reported he had a cast on his left wrist while in service that was caused by playing basketball and the military doctor made a mistake and put right wrist in service treatment records instead of left wrist injury. The Board finds that this evidence is new and relevant to the element of establishing an additional in-service occurrence, which was not considered at the time of the July 2017 Board decision. As a result, this claim should be readjudicated. 38 U.S.C. §§ 1131, 5108 (2012); 38 C.F.R. §§ 3.156(a), 3.2501 (2020). REASONS FOR REMAND Entitlement to service connection for residuals of a left wrist injury In the August 2019 VA rating decision on appeal, the AOJ made favorable findings of a current disability (diagnosis of moderate degenerative changes of the left radio carpal joint to include status post ganglion cyst removal, noted in the June 2010 VA examination report) and in-service occurrence (pain of left wrist after playing football and noted history of bruised ligament, noted in September 1983 service treatment record). As discussed above, review of the July 2019 buddy statements from R. S. and F. B. documents their observations of the Veteran's left wrist injury while playing basketball and treatment with a cast while in service in 1984. In light of such evidence, the Board finds that a VA medical opinion regarding the etiology of the Veteran's residuals of a left wrist injury on a direct basis should have been provided prior to the rating decision on appeal. See 38 U.S.C. § 1131; 38 C.F.R. § 3.303; McLendon v. Nicholson, 20 Vet. App. 79 (2006). Because this duty to assist error occurred prior to the decision on appeal, remand is appropriate. The Board emphasizes that it is not determining whether or not the July 2019 buddy statements of R. S. and F. B. regarding the Veteran's in-service left wrist injury while playing basketball and treatment with a cast in 1984 are credible at this time, as the additional development set forth in the directive below could impact that determination. The matter is REMANDED for the following action: Provide the Veteran's claims file to an appropriate clinician to provide an opinion regarding the Veteran's claim for residuals of a left wrist injury. The entire claims file and a copy of this remand must be made available to the examiner for review. An examination (physical or telehealth) is only required if deemed necessary by the examiner. For the purposes of this remand only, and for the limited purpose of conducting the examination and providing a medical opinion, the examiner should assume that the July 2019 buddy statements of R. S. and F. B. regarding the Veteran's in-service left wrist injury while playing basketball and treatment with a cast in 1984 are true. If there is a medical reason to doubt its veracity, the examiner should explain why R.S., F. B., and the Veteran's recollection is inconsistent with the principles of medical science and/or the evidence in this case. The examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's current residuals of a left wrist injury (including diagnosis of moderate degenerative changes of the left radio carpal joint to include status post ganglion cyst removal noted in the June 2010 VA examination report) began during active service or is related to an incident of service, to include consideration of a left wrist injury while playing basketball and treatment with a cast in 1984. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Carter, 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.