Citation Nr: 21070946 Decision Date: 11/27/21 Archive Date: 11/27/21 DOCKET NO. 19-26 592 DATE: November 27, 2021 ORDER New and material evidence has been received to reopen the claim for service connection for right thumb flexor tendon laceration (previously denied as a right hand condition or as right thumb pain). Service connection for a right thumb flexor tendon laceration which results in inability to bend the thumb at the interphalangeal joint is granted. FINDINGS OF FACT 1. An unappealed March 2015 rating decision declined to reopen the service connection claim for a right thumb condition charactered as right thumb pain. 2. Evidence received subsequent to the March 2015 decision is new and favorable to the claim for service connection for a right thumb flexor tendon laceration. 3. The Veteran suffered a laceration of the right thumb flexor tendon in service which results in inability to bend the thumb at the interphalangeal joint. CONCLUSIONS OF LAW 1. The March 2015 decision that declined to reopen the Veteran's claim for service connection for a right thumb condition is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. 2. Evidence received since the final March 2015 denial is new and material; the criteria to reopen the claim for entitlement to service connection for a right thumb flexor tendon laceration have been met. 38 U.S.C. § 5108, 38 C.F.R. § 3.156. 3. The criteria for service connection for a right thumb flexor tendon laceration which results in inability to bend the thumb at the interphalangeal joint have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1955 to May 1959. The Department of Veterans Affairs (VA) is grateful for his service. 1. Whether new and material evidence is presented to reopen a claim for service connection for right thumb flexor tendon laceration (previously denied as a right hand condition) Generally, a claim which has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104 (b), 7105(c). An 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. Moreover, new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156 (b). New evidence is defined as existing evidence not previously submitted to agency decision makers. 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 United States 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), see also Evans v. Brown, 9 Vet. App. 273, 284 (1996). 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 Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). The Veteran was originally denied service connection for a right thumb condition in March 1981, when it was characterized as a right hand condition. That decision was not appealed, and it became final. Most recently, the RO declined to reopen the claim for service connection for a right thumb condition by a March 2015 decision, when the condition was characterized as right thumb pain. The RO determined that new and material evidence had not been received to reopen the claim. At the time of that decision, no evidence had been presented of a right thumb injury or disability in service other than the Veteran's contention of injury, and no competent evidence had been presented linking current disability to an injury, disease, or disability in service. The March 2015 decision was not appealed, and new pertinent evidence was not submitted within the appeal period, and accordingly that decision also became final. 38 U.S.C. § 7105; 38 C.F.R. § 20.302, 20.1103. Evidence received subsequent to the March 2015 decision includes testimony by the Veteran and his spouse at a November 2021 hearing addressing injury in service and symptomatic disability subsequent to service. Also added to the record is an August 2018 private medical opinion letter by M.F., an orthopedist, informing that he had reviewed the Veteran's reported history and "evaluated" the Veteran, finding that the Veteran had a "chronic right thumb flexor tendon laceration that results in inability to actively flex the right thumb at the [interphalangeal] joint such that he has limited motion at that joint." The Board finds that this is new and material evidence presenting a reasonable possibility of substantiating the claim for service connection for a right thumb flexor tendon laceration on the merits. Accordingly, the claim for service connection for a right thumb flexor tendon laceration is reopened. 2. Service connection for right thumb flexor tendon laceration with inability to bend the thumb at the interphalangeal joint The Veteran contends, in effect, that he has a right thumb disability as a result of a flexor tendon laceration in service. Service connection may be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303 (d). To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) an in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Service connection may be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303 (d). The claimant bears the burden of presenting and supporting a claim for benefits. 38 U.S.C. § 5107 (a); Fagan v. Shinseki, 573 F.3d 1282, 128688 (Fed. Cir. 2009). In making determinations, VA is responsible for ascertaining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). The evidentiary record contains records of a service enlistment examination in December 1955 and a service separation examination in May 1959 documenting two scars on the dorsal side of the right hand identically described in the enlistment and separation examination reports. This would appear to indicate a pre-service injury to the right hand. Service records include no other findings of scars, surgical or otherwise, on the right hand, and no other records of complaints, findings, treatments, or diagnosis of any right hand or thumb condition. Testimony provided before the undersigned in November 2021 includes the Veteran's explanation that the scars shown in service records were from an injury when the Veteran was a child, and are distinct from the injury the Veteran suffered in service. The Veteran testified to symptomatic disability following service as a result of a right hand laceration from a broken beer glass which cut his thumb, for which he received stiches from a corpsman. As noted above, an August 2018 private medical opinion letter by M.F., an orthopedist, included an evidentiary review and provided a competent medical opinion that the Veteran has a "chronic right thumb flexor tendon laceration that results in inability to actively flex the right thumb at the [interphalangeal] joint such that he has limited motion at that joint" as a direct result of the laceration injury the Veteran reportedly suffered in service. The Board finds that the evidence is at least in equipoise, and accordingly affording the Veteran the benefit of the doubt, the Board concludes that service connection is warranted for laceration of the right thumb flexor tendon with inability to bend the thumb at the interphalangeal joint. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.303. L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Schechter 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.