Citation Nr: 21068868 Decision Date: 11/15/21 Archive Date: 11/15/21 DOCKET NO. 19-01 912 DATE: November 15, 2021 ORDER New and material evidence having been received, the claim of entitlement to service connection for a right hand or wrist condition is reopened; the appeal is granted to this extent only. REMANDED Entitlement to service connection for a right wrist or hand condition is remanded. Entitlement to service connection for a back condition is remanded. Entitlement to service connection for a right knee condition is remanded. FINDING OF FACT 1. In a final decision issued in November 1971, the Agency of Original Jurisdiction (AOJ) denied service connection for a right hand condition. 2. Evidence associated with the record since the final November 1971 denial is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the claim of entitlement to service for a right hand or wrist condition. CONCLUSION OF LAW New and material evidence has been received to reopen the claim for service connection for a right hand or wrist disorder. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1971 to October 1971. This matter comes before the Board of Veterans' Appeals (Board) from a July 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) during a hearing in November 2020. The Board must address the question of whether new and material evidence has been received since the noted November 1971 rating decision, which was unappealed and is final. Barnett v. Brown, 83 F.3d 1380, 1383-84 (Fed. Cir. 1996); 38 U.S.C. § 5108; 38 C.F.R. § 3.156. Since the issuance of the November 1971 rating decision that found the Veteran did not have a right hand disability, he has submitted evidence that shows he has right hand carpal tunnel syndrome and median focal neuropathy of his right wrist. He testified during the November 2020 Board hearing that his right hand was crushed during an accident in service. He further testified to symptoms such as losing grip/dropping things, swelling, and pain. The Board finds that this evidence raises a reasonable possibility of substantiating the Veteran's claim by supporting the current disability and in-service injury elements required for establishing entitlement to service connection for a right hand or wrist condition. Consequently, the Board finds that the evidence associated with the record since the final November 1971 denial is neither cumulative nor redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the claims of entitlement to service connection for a right hand or wrist condition. As such, new and material evidence has been received, and the claim is reopened. REASONS FOR REMAND 1. Entitlement to service connection for a right hand or wrist condition is remanded. The Veteran asserts that his right hand or wrist condition is related to an in-service injury, or otherwise had its onset in service. Service treatment records (STRs) indicate reports of pain in his right hand when he dropped a metallic weight on it. In addition, another STR shows the Veteran injured his right hand after "he hit his wall locker." The Veteran also testified before the Board as to the rigors of service, including his duties as a generator operator, truck driver, and field wireman, which required continuous heavy lifting of large coil wires weighing up to 100 pounds. He further stated he would carry the coil wires up and down mountainous terrain. The Board notes that the Veteran has not been afforded a VA examination for his right hand or wrist condition. Given the above, the Board finds there is insufficient information to make a decision on the claim and that the low threshold for a VA examination, in order to obtain a medical opinion, has been met in this case. See 38 U.S.C. § 5103A; McClendon v. Nicholson, 20 Vet. App. 79 (2006). 2. Entitlement to service connection for back condition is remanded. 3. Entitlement to service connection for a right knee condition is remanded. In this case, the Veteran asserts that his back and right knee conditions are due to the rigors of service. The Veteran also asserts that his right knee is related on a secondary basis to his back condition, as the effects of his back condition cause right knee instability and weakness. In particular, the Veteran asserts in his November 2016 Notice of Disagreement (NOD) that he initially injured his back when he "jumped down off a duece [sic] n [sic] a half while removing equipment." He further stated that he was treated and given a back brace around February 1971 at Fort Carson, Colorado. Furthermore, the Veteran testified that his duties in service, as noted above, required heavy lifting of large coil wires weighing up to 100 pounds and he would carry these up and down a mountainous terrain, which took a toll on his back and right knee. The Veteran further testified that soon after he would fall over and collapse because of his right knee instability. The post-service VA treatment records throughout the file show the Veteran reporting chronic back pain as well as weakness and pain in his right knee. However, the record is unclear regarding a diagnosis. In addition, even though the STRs do not show complaints or treatment for a back or right knee condition, this alone does not preclude a finding of in-service onset. In other words, a lack of treatment during service does not, in and of itself, mean that the condition did not exist at that time. As such, the Board finds a medical opinion is therefore necessary to decide the claims given that the Veteran has testified that his back and right knee conditions are related to service and the rigors thereof. 38 C.F.R. § 3.159(c)(4) The matters are REMANDED for the following action: Schedule the Veteran for a VA examination (or examinations, if warranted) with an appropriate clinician to determine whether any current right hand or wrist, back, or right knee conditions are related to active service. The claims file must be made available to and be reviewed by the examiner in conjunction with the examination. For any right hand or wrist disorder, back disorder, or right knee disorder identified, the examiner should opine whether it is at least as likely as not (a 50 percent or greater probability) due to an in-service injury, event, or disease, or is otherwise related to the Veteran's service. (a) The examiner should address the in-service reports of right hand-related injuries and symptoms. In addition, the examiner should consider and address the Veteran's lay statements and any other pertinent evidence of record, including the November 2020 Board hearing testimony regarding the rigors of service and symptoms. (b) If, and only if, a back condition is found to be etiologically related to service, the examiner must provide an opinion as to whether any right knee disorder is at least as likely as not (a 50 percent or greater probability) proximately due to, or aggravated by the service-connected back disorder. The examiner must address both causation AND aggravation for the opinions to be deemed adequate. Notably, Ward v. Wilkie, 31 Vet. App. 233 (2019) held that a "permanent worsening" of a non-service-connected disability is not required to establish secondary service connection on the basis of aggravation (i.e., aggravation may include temporary worsening of a disability). All opinions must be supported by a rationale. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Ariasaif, Mary 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.