Citation Nr: 21071319 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 16-51 872 DATE: November 30, 2021 ORDER The petition to reopen the claim to service connection for a right elbow condition is granted. REMANDED Entitlement to service connection for a right elbow condition is remanded. Entitlement to service connection for bilateral hearing loss is remanded. FINDING OF FACT An unappealed January 2006 rating decision denied service connection for a right elbow condition; new and material evidence was not received prior to expiration of the appeal period; subsequently received evidence includes evidence that is not cumulative or redundant and relates to an unestablished fact necessary to reopen the claim. CONCLUSION OF LAW New and material evidence has been received warranting the reopening of the Veteran's claim to service connection for a right elbow condition. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. §§ 3.156(a), 20.1103. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from September 1981 to September 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2015 rating decision issued by a Department of Veterans Affairs Regional Office (RO). Relevant Statutes and Regulations Generally, a claim which has been denied in an unappealed Board decision or an unappealed agency of original jurisdiction (AOJ) decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). Prior unappealed rating decisions may not be reopened absent the submission of new and material evidence warranting revision of the previous decision. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. New evidence means evidence not previously submitted to agency decisionmakers. Material evidence means evidence that, by itself or when considered with previous evidence of record, related to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). Material evidence is: (1) evidence on an element where the claimant initially failed to submit any competent evidence; (2) evidence on an element where the previously submitted evidence was found to be insufficient; (3) evidence on an element where the appellant did not have to submit evidence until a decision of the Secretary determined that an evidentiary presumption had been rebutted; or (4) some combination or variation of the above three situations. Kent v. Nicholson, 20 Vet. App. 1 (2006). In order to be new and material evidence, the evidence must not be cumulative or redundant, and must raise a reasonable possibility of substantiating the claim, which has been found to be enabling, not preclusive. See Shade v. Shinseki, 24 Vet. App. 110 (2010). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1991). When VA fails to consider new and material evidence submitted within the one-year appeal period pursuant to § 3.156(b), and that evidence establishes entitlement to the benefit sought, the underlying RO decision does not become final. Young v. Shinseki, 22 Vet. App. 461, 466 (2009); see also Buie v. Shinseki, 24 Vet. App. 242, 252 (2011) (remanding for the Board to consider the application of 38 C.F.R. § 3.156(b) and whether the regional office correctly viewed the statements in question as new claims). That is, when statements are received within one year of the rating decision, the Board's inquiry is not limited to whether those statements constitute notices of disagreement but whether those statements include the submission of new and material evidence under 38 C.F.R. § 3.156(b). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may be granted based on evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. 38 C.F.R. § 3.304. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Additionally, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities such as arthritis are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. The petition to reopen the claim to service connection for a right elbow condition is granted. The Veteran seeks to open his claim to service connection for a right elbow disability on the basis of new and material evidence. By way of history, the Veteran filed an original claim in September 2005 seeking service connection for a right elbow condition. See VA 21-4138 Statement in Support of Claim September 30, 2005. The claim was denied in a January 2006 rating decision with the RO finding that although there is a record of treatment in service for a right elbow condition, there is no permanent residual or chronic disability subject to service connection shown by the service medical records or demonstrated by evidence following service. Evidence considered in the January 2006 rating decision includes the Veteran's service treatment records. The Veteran was provided notice of this decision and his appellate rights in a February 2006 letter, but he did not appeal the decision or submit new and material evidence within one year of the decision. Therefore, the decision is final. See 38 C.F.R. §§ 3.104, 20.302, 20.1103. In this regard, the Board has considered the applicability of 38 C.F.R. § 3.156(b), which provides that, when new and material evidence is received prior to the expiration of the appeal period, it will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. However, in the instant case, such regulation is inapplicable as no relevant evidence pertaining to the Veteran's claim for service connection was received prior to the expiration of the appeal period stemming from rating decision dated in February 2006. See also Long v. Wilkie, 33 Vet. App. 167 (2020); Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011); Roebuck v. Nicholson, 20 Vet. App. 307, 316 (2006); Muehl v. West, 13 Vet. App. 159, 161-62 (1999). Moreover, no additional relevant service records (warranting reconsideration of the claim) have been received at any time. See 38 C.F.R. § 3.156(c). Evidence received since the February 2006 rating decision includes updated VA treatment records and an October 2017 VA examination. A VA treatment note, dated May 2016, indicates swelling in the right elbow, ongoing for some months prior. A follow-up VA treatment note from August 2016 indicates that the Veteran underwent a procedure to have fluid drained from his right elbow. A July 2017 VA examination report reflected a diagnosis of degenerative arthritis of the right elbow. Upon review, the Board finds this evidence is both new and material evidence sufficient to reopen the Veteran's claim. The evidence is new in that it was not of record at the time of the February 2006 rating decision on appeal, and the evidence is "material" because it establishes that the Veteran suffers from a current disability, a crucial element of a service connection claim. As a result, the Board finds that the evidence raises a reasonable possibility of substantiating the Veteran's claim. 38 C.F.R. § 3.156(a). As the credibility of new evidence is generally presumed, the Veteran's claim of entitlement to service connection for a right elbow condition is reopened. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). REASONS FOR REMAND 1. Entitlement to service connection for a right elbow disorder is remanded. The Veteran contends that his right elbow degenerative arthritis is the result of his service. A review of the evidence reveals that there is conflicting medical evidence regarding the nature of the Veteran's right elbow disorder. The Veteran was provided a VA examination in July 2017. The examiner diagnosed degenerative arthritis of the right elbow. Additionally, the examiner noted abnormal range of motion of the right elbow and made findings of flexion of the right elbow as well as painful motion. The examiner opined that the Veteran's right elbow arthritis was less likely than not (less than 50 percent probability) related to his service. The examiner supported this opinion with the rationale that the Veteran had injured his left elbow in service and there had been no right elbow injury or pathology during service. A left elbow injury could not lead to a degenerative arthritis of the right elbow and thus a nexus to service could not be established. Subsequently, the Veteran's October 2017 VA elbow examination stated normal findings for right elbow range of motion and did not mention any indication of arthritis or painful motion. The only pathology indicated by the October 2017 examination regarding the right elbow was tenderness around the olecranon area. Regrettably, the Board finds that further delay in the adjudication of this matter is necessary in order to allow for this conflicting evidence to be reconciled. A remand is therefore warranted to arrange for an addendum medical opinion to reconcile the conflicting findings cited above. 2. Entitlement to service connection for bilateral hearing loss is remanded. The Veteran contends that his bilateral hearing loss is the result of his service. The record confirms that the Veteran had exposure to loud noise in-service, i.e. through his duties as artilleryman. The Veteran was provided a VA audiological evaluation in August 2015. The examiner opined that the Veteran's hearing impairment was not likely associated with military noise exposure as he had normal hearing status on discharge audiogram with no significant threshold shifts from induction audiogram. However, this opinion does not offer a complete rationale. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). On remand, an addendum should be obtained. The matters are REMANDED for the following action: 1. The Veteran should be given the opportunity to identify any outstanding private or VA treatment records relevant to the claims on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, to include updated VA treatment records. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and his representative and afford him an opportunity to submit any copies in their possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Following the receipt of outstanding records, obtain an etiology opinion from an appropriate examiner to determine the nature and etiology of the Veteran's claimed a right elbow disorder. The need for a physical examination is left to the discretion of the medical professional offering the medical opinion. The record must be made available to the examiner for review, and the examiner should indicate that the record was reviewed in connection with the examination. All indicated tests and studies should be accomplished and the findings then reported in detail. The examiner should respond to the following: Is it at least as likely as not (50 percent or better probability) that any currently present right elbow disorder had its onset during his active service, or is otherwise etiologically related to such service? The examiner should specifically reconcile the conflicting findings of the Veteran's July 2017 and October 2017 VA elbow examinations of record. A rationale should be provided for all opinions offered. If it is not possible to provide a specific opinion regarding the above questions, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The medical opinion must support the conclusions reached with an analysis that is adequate to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 3. Following the receipt of outstanding records, obtain an etiology opinion from an appropriate examiner to determine the nature and etiology of the Veteran's claimed bilateral hearing loss. The need for a physical examination is left to the discretion of the medical professional offering the medical opinion. The record must be made available to the examiner for review, and the examiner should indicate that the record was reviewed in connection with the examination. All indicated tests and studies should be accomplished and the findings then reported in detail. The examiner should respond to the following: Is it at least as likely as not (50 percent or better probability) that any bilateral hearing loss had its onset during his active service, or is otherwise etiologically related to such service? A rationale should be provided for all opinions offered. If it is not possible to provide a specific opinion regarding the above questions, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). (Continued on the next page) The medical opinion must support the conclusions reached with an analysis that is adequate to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Kashif I. Ali, 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.