Citation Nr: 21076671 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 15-08 592 DATE: December 27, 2021 ORDER New and material evidence having been received, the petition to reopen the claim for service connection for a bilateral hand disability is granted. Service connection for bilateral hand arthritis is granted. Service connection for a left shoulder strain is granted. Service connection for a right shoulder arthritis is granted. Service connection for lumbar spine arthritis is granted. FINDINGS OF FACT 1. In an August 2002 rating decision, the RO denied the claim for service connection for a bilateral hand disability. The Veteran did not timely appeal, and no new and material evidence was received within a year of the rating decision's issuance. 2. Additional evidence received since the August 2002 rating decision is new and related to unestablished facts necessary to substantiate the claim of service connection for a bilateral hand disability. 3. The competent and probative evidence tends to show the Veteran's current bilateral hand disability is due to active service. 4. The competent and probative evidence tends to show the Veteran's current left shoulder strain and right shoulder arthritis are due to active service. 5. The competent and probative evidence tends to show the Veteran's current lumbar spine arthritis disability is due to active service. CONCLUSIONS OF LAW 1. The August 2002 rating decision that denied service connection for a bilateral hand disability is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.1103. 2. The evidence received since the August 2002 rating decision is new and material, and the claim for service connection for a bilateral hand disability is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for service connection for bilateral hand arthritis are met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. § 3.102, 3.303. 4. The criteria for service connection for left shoulder strain are met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. § 3.102, 3.303. 5. The criteria for service connection for right shoulder arthritis are met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. § 3.102, 3.303. 6. The criteria for service connection for lumbar spine arthritis are met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. § 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Navy from November 1981 to May 1989 and in the United States Army from April 1990 to July 2002. These matters are before the Board of Veterans' Appeals (Board) on appeal from a September 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a virtual Board hearing in August 2021; a transcript is of record. Additionally, the Veteran initially filed a claim for service connection for a hand disability that was denied in 2002. Since that time, he filed a claim for degenerative arthritis that the RO adjudicated as claims for his hands, spine, and shoulders. The Board finds it is appropriate to recharacterize the claims as separate claims for bilateral hand, bilateral shoulder, and spine disabilities. There is also new evidence, including VA examination reports, that were associated with the claims file after the February 2015 statement of the case (SOC). Although the Agency of Original Jurisdiction (AOJ) has not had an opportunity to review all the new evidence, there is no prejudice to the Veteran in adjudicating the claims because the full benefits sought on appeal are being granted. New and Material Where a claim has been finally adjudicated, new and material evidence is required in order to reopen the previously denied claim. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); see also Wakeford v. Brown, 8 Vet. App. 239, 239-40 (1995). New evidence is that which was not previously submitted to agency decision makers. Material evidence is that which by itself, or when considered with previous evidence of record, relates to an unestablished fact that is necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last final denial, and it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Where new and material evidence is received within one year after the initial denial, the denial is not final, and the claim remains pending. 38 C.F.R. § 3.156(b). For the purpose of reopening, evidence received is generally presumed credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). There is a low threshold for finding new evidence raises a reasonable possibility of substantiating a claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). VA should consider whether the newly received evidence could reasonably substantiate the claim were the claim to be reopened, including whether VA's duty to provide a VA examination is triggered. Id. 1. Whether new and material evidence has been submitted to reopen the petition for service connection for a bilateral hand disability. In the August 2002 rating decision, the RO denied service connection for a bilateral hand disability. The RO stated that the Veteran did not have a diagnosis other than pain. The Veteran did not timely appeal, no new and material evidence was submitted within one year of this RO determination, and the decision became final. 38 U.S.C. § 7105; 38 C.F.R. § 3.156(b). Since the final denial, the December 2020 examination shows the Veteran has a bilateral hand diagnosis of degenerative arthritis. Therefore, the Board finds this evidence is new and material to the Veteran's claim as the evidence addresses a diagnosis for his bilateral hand disability. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010) (stating that the language of 38 C.F.R. § 3.156(a) creates a low threshold for reopening a previously denied claim). Therefore, the petition to reopen is granted. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. In order to establish entitlement to service connection, there must be 1) evidence of a current disability; 2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and 3) causal connection between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Regulations provide that service connection is warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Further, a disability which is aggravated by a service-connected disorder may be service connected to the degree that the aggravation is shown. Allen v. Brown, 7 Vet. App. 439, 449 (1995); 38 C.F.R. § 3.310(b). In order to establish entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; (3) medical evidence establishing a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed Cir. 2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990). 2. Entitlement to service connection for a bilateral hand disability. 3. Entitlement to service connection for a bilateral shoulder disability. 4. Entitlement to service connection for a lumbar spine disability. The Veteran asserts service connection for bilateral hand, bilateral shoulder, and a lumbar spine disability. After reviewing the relevant lay and medical evidence, the Board concludes that the Veteran has current diagnoses of bilateral hand arthritis, left shoulder strain and right shoulder arthritis, and lumbar spine arthritis, and that the evidence tends to show they are related to his active duty. 38 U.S.C. §§ 1110, 1131, 5107(b). The Veteran has current diagnoses of bilateral hand arthritis, right shoulder degenerative arthritis and left shoulder strain, and lumbar spine arthritis, to include as reported in December 2020 examinations. As such, the first element of service connection is met. The Veteran testified at the Board hearing regarding his disabilities and his experiences in service. He explained that he frequently would lift heavy objects, he would be in small spaces, and he would take Motrin for his pain. He believes the repetitive motions and lifting caused his disabilities. The Board finds the Veteran competent and credible to describe his in-service experiences. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). His testimony is consistent with his military occupational specialty (MOS). While the statements are competent and credible to describe his experiences during service, the Veteran is not competent to determine that his current disabilities are due to service as it requires specialized knowledge of the body's orthopedic system. The Veteran provided a positive nexus opinion. See 8/18/2021, Medical Treatment Record Government Facility Nexus, at p 1. The examiner, a VA chiropractor, stated she treated the Veteran for his spine, shoulder, and hand disabilities. The examiner explained that the Veteran did not have any known risk factors for his disabilities other than his military service. She stated that it was more likely than not that his disabilities were caused by his service as after service he was not employed in a physically strenuous occupation. She had reviewed his medical file as well as his most recent MRIs. She listed the activities the Veteran participated in during service that can cause arthritis (marching, physical training, lifting heavy projectiles, extended standing, climbing, jumping, etc.). The Board finds this opinion to have some probative value. The examiner supports her conclusions with some rationale as she reports his in-service experiences likely caused his disabilities while noting he was not in a physically intensive position after service. However, while the opinion is positive, it is somewhat speculative and conclusory with its rationale. For these reasons, the Board finds it to have some probative value. After review of the competent and probative evidence, the Board finds that when resolving reasonable doubt in favor of the Veteran, the evidence tends to show that the Veteran's bilateral hand arthritis, left shoulder strain and right shoulder arthritis, and lumbar spine arthritis are due to his active duty. The Board has found the Veteran competent and credible to describe his experiences in service. There is a positive, if sometimes conclusory, nexus opinion and there is not a competent negative nexus opinion during the period on appeal. Also, there is negative nexus opinion weighing against the claim. Therefore, service connection for bilateral hand arthritis, left shoulder strain and right shoulder arthritis, and lumbar spine arthritis is warranted. 38 C.F.R. § 3.102, 3.303. Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Morales, 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.