Citation Nr: 21066777 Decision Date: 11/02/21 Archive Date: 11/02/21 DOCKET NO. 17-65 365 DATE: November 2, 2021 ORDER New and material evidence having been received, the appeal to reopen the claim of entitlement to service connection for right wrist disability is granted. New and material evidence having been received, the appeal to reopen the claim of entitlement to service connection for chronic lumbar strain with degenerative disc disease (DDD), to include as secondary to service-connected left ankle disability is granted. Entitlement to service connection for right wrist disability is denied. REMANDED Entitlement to service connection for chronic lumbar strain with DDD, to include as secondary to service-connected left ankle disability is remanded. FINDINGS OF FACT 1. A final September 2006 Regional Office (RO) decision denied the Veteran's claim for entitlement to service connection for a right wrist disability. 2. Subsequent to the September 2006 rating decision, evidence was associated with the claims file that is neither cumulative nor redundant of evidence already of record and raises a reasonable possibility of substantiating the claim for entitlement to service connection for a right wrist disability. 3. A final December 2013 RO decision denied the Veteran's claim for entitlement to service connection for chronic lumbar strain with DDD. 4. Subsequent to the December 2013 rating decision, evidence was associated with the claims file that is neither cumulative nor redundant of evidence already of record and raises a reasonable possibility of substantiating the claim for entitlement to service connection for chronic lumbar strain with DDD. 5. The preponderance of the evidence is against a finding that the Veteran's right wrist disability had its onset during active service or that it is otherwise related to service. CONCLUSIONS OF LAW 1. New and material evidence was received to reopen the claim of entitlement to service connection for a right wrist disorder. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. New and material evidence was received to reopen the claim of entitlement to service connection for chronic lumbar strain with DDD. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for entitlement to service connection for a right wrist disorder have not been met. 38 U.S.C. §§ 1101, 1112, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1981 to June 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from various rating decision of the Department of Veterans Affairs (VA) RO. In June 2021, the Veteran testified before the undersigned Veterans Law Judge. A transcript of the proceeding has been associated with the claims file. New and Material Evidence Generally, a claim that has been denied in a final RO or Board decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). 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 that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decisionmakers. Material evidence means 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 previously of record and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The Court of Appeals for Veterans Claims (Court) has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Meyer v. Brown, 9 Vet. App. 425, 429 (1996). 1. Right wrist disability In September 2006, the RO issued a rating decision and denied service connection for a right wrist condition. The narrative portion of the rating decision shows that the Veteran was not receiving treatment and did not have a diagnosis of a current condition for his right wrist. The Veteran did not file a notice of disagreement related to this claim; thus, the decision became final. 38 U.S.C. § 4005(c); 38 C.F.R. §§ 3.104, 19.192. In June 2017, the Veteran applied to reopen his claim. The RO reopened the claim as the Veteran's VA treatment records indicated a diagnosed wrist condition. In an August 2017 rating decision, the RO confirmed and continued the previous denial of service connection as a VA examiner did not find a link between the current right wrist condition and the Veteran's active service. In June 2021, the Veteran testified before the Board regarding his right wrist condition and indicated that he had injured his wrist in service and believed it was related to his current wrist condition. Additionally, the Veteran testified that he was receiving Social Security Disability due, in part, to his right wrist condition. The relevant Social Security Administration records have been added to the claims file. This new evidence relates to the presence of the disability claimed and also provides information that the right wrist disorder was related to the Veteran's active service. Thus, this new evidence pertains to the basis of the prior denials and presents the possibility of substantiating the claim. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The SSA records, hearing testimony, and VA examinations added to the claims file since the September 2006 rating decision are not cumulative or redundant of the evidence previously of record. Rather, they suggest a potential relationship between the Veteran's right wrist condition and his active service. Accordingly, reopening of the claim for service connection for a right wrist condition is warranted. 2. Chronic lumbar strain with DDD The Veteran's claim for service connection for chronic lumbar strain with DDD was denied in a December 2013 rating decision. The Veteran did not file a notice of disagreement related to this claim; thus, the decision became final. 38 U.S.C. § 4005(c); 38 C.F.R. §§ 3.104, 19.192. The Veteran filed to reopen his claim in June 2017. In an August 2017 rating decision, the RO denied his claim because the evidence submitted was not new and material. In a March 2018 rating decision, the RO reopened the Veteran's claim, but again denied the claim, finding there was no link between the Veteran's service-connected ankle disability and his lumbar condition. In June 2021, the Veteran testified before the Board regarding his lumbar spine disability. The Veteran indicated that his VA treatment provider had provided a positive nexus opinion in 2012, which was not considered in the December 2013 rating decision. Additionally, the Veteran testified that he was receiving Social Security Disability due, in part, to his lumbar spine condition. The relevant Social Security Administration records have been added to the claims file. This new evidence relates to the presence of the disability claimed and also provides information that the chronic lumbar strain with DDD is related to the Veteran's service-connection ankle disability. Thus, this new evidence pertains to the basis of the prior denials and presents the possibility of substantiating the claim. See Shade, 24 Vet. App. at 118. The VA treatment provider's opinion, SSA records, hearing testimony, and VA examinations added to the claims file since the December 2013 rating decision are not cumulative or redundant of the evidence previously of record. Rather, they suggest a potential relationship between the Veteran's lumbar spine condition and his active service. Accordingly, reopening of the claim for service connection for lumbar spine condition is warranted. SERVICE CONNECTION Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Where a Veteran served for at least 90 days and manifests certain disabilities, including arthritis, to a degree of 10 percent within one year from the date of separation from that service, that disability shall be presumed to have been incurred in service, even though there is no evidence of the disability during the period of service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. 1. Entitlement to service connection for right wrist disability The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, or disease. The Board concludes that, while the Veteran has current diagnoses of right wrist scaphoid lunate advanced collapse (SLAC), arthritis and carpal tunnel syndrome, and evidence shows that he injured his wrist during service, the preponderance of the evidence weighs against finding that the Veteran's right wrist disability began during service or is otherwise related to an in-service injury or disease. The Veteran's service treatment records indicate that the Veteran sought treatment for a right wrist injury in April 1982. He was given an elastic wrap, and for 48 hours he was restricted from lifting over 20 pounds. No wrist complaints followed, and his separation examination in May 1984 contained no references to any wrist injury or bone, joint, or other deformity. The Veteran was afforded a VA examination in August 2017. The examiner stated that the Veteran had a right wrist SLAC, which was consistent with a traumatic event with disruption to the ligamentous integrity of the wrist. However, the examiner noted that if the traumatic event occurred during service, the examiner would have expected the Veteran to have had further issues during service, as well as in his post-service employment. The examiner concluded that the in-service injury was not consistent with the Veteran's current symptoms, as the Veteran did not note wrist complaints at separation. As such, the Veteran's wrist condition was less likely than not incurred in or caused by an in-service injury or disease. The Veteran was afforded another VA examination in August 2020. The examiner opined that the Veteran's condition was less likely than not related to an in-service injury. The examiner noted that although the Veteran sustained a right wrist injury in service in 1982, service treatment records showed the injury was mild and acute in nature and resolved. Following the injury, there were no further complaints, follow-up visits, or symptoms suggesting a severe injury that could explain the progression to his current condition. Further, the Veteran's VA treatment records and Social Security Administration (SSA) hearing testimony indicated that the Veteran's wrist condition had its onset in approximately 2006 to 2008. The examiner's opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Veteran is in receipt of Social Security Disability Insurance disability benefits due in part to a wrist condition. At his SSA hearing, the Veteran testified that his right wrist began hurting in service and that his right hand began bothering him around 2008 to 2009. While a medical expert testified that the Veteran experienced a dorsal dislocation of his right wrist while in service, the Veteran's service treatment records indicate that the Veteran had a sore wrist after a fall and contained no reference to a dislocation of the right wrist. The Veteran has a current diagnosis of arthritis as evidenced by his VA treatment records. Arthritis is an enumerated condition under 38 C.F.R. § 3.309(a). However, there is no evidence in the Veteran's service treatment records of complaints of, or treatment for, symptoms that had been associated with arthritis. The first indication in the record of wrist arthritis is in a 2017 VA treatment note, decades after his separation from active service. Even assuming that pain in 2006 was caused by arthritis, since it did not manifest until decades after his separation from service, presumptive service connection is not available for it. 38 C.F.R. § 3.309(a). VA treatment records show the Veteran was not diagnosed with wrist complaints until November 2006, decades after his separation from service. While the Veteran is competent to report having experienced symptoms of wrist pain and discomfort consistently since service, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of his current condition. The issue is medically complex, as it requires knowledge of anatomical relationships. The Veteran in this case is not competent to provide a nexus opinion regarding this issue because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the VA examinations of record. Accordingly, the preponderance of the most probative evidence is against the claim of entitlement to service connection for a right wrist disability. In reaching the conclusion above, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND The Veteran contends his chronic lumbar strain with DDD is secondary to his service-connected ankle injury, as he has had to alter his gait to adjust for the pain in his ankle. The Veteran underwent VA examination in May 2013. The May 2013 examiner noted that the Veteran had no leg length discrepancy, and therefore there was no mechanism consistent with the left ankle causing the Veteran's back and leg pain. The examiner added, however, "I do expect loss of addition 0-5 degrees of his range of motion strength and coordination d overall due to the pain with [repetitive] movement flares in both the back and legs bilaterally." It is unclear what the examiner meant to convey by these words. A February 2018 VA examiner noted without a leg discrepancy, it was likely that his back pain was due to his employment performing manual labor. While the VA examiner concluded that the Veteran's back condition was less likely than not proximately due to or the result of his service-connected disability, the examiner did not address whether the Veteran's service-connected ankle disability aggravated the Veteran's low back condition. An August 2020 VA examination did not find the presence of radiculopathy, and therefore offered no opinions addressing causation or aggravation. A remand is necessary to obtain an opinion that sets out clearly whether the Veteran's lumbar spine disability has been aggravated by his service connected ankle disability. See Atencio v. O'Rourke, 30 Vet. App. 74 (2018). The matter is REMANDED for the following actions: 1. Provide the Veteran's entire claims file to an appropriate examiner and obtain an addendum opinion that explains whether it is at least as likely as not that the Veteran's chronic lumbar strain with DDD has been aggravated or worsened beyond its natural progression by the Veteran's service-connected ankle disability. In explaining the opinion, the likely etiology the Veteran's back condition would be useful for adjudication purposes. In any event, a complete rationale must be provided for all opinions expressed. 2. If the examiner cannot provide the requested opinion without resorting to speculation, he or she should provide an explanation as to why that is the case. The examiner should explain whether the inability to provide a more definitive opinion is the result of a need for additional information or whether the examiner has exhausted the limits of current medical knowledge. 3. After completing the above actions, to include any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence. MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board V. Geer, 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.