Citation Nr: 21012813 Decision Date: 03/05/21 Archive Date: 03/05/21 DOCKET NO. 14-07 060 DATE: March 5, 2021 ORDER New and material evidence has been received and the claim to reopen a claim for service connection for right wrist carpal tunnel syndrome (CTS) is granted. REMANDED Entitlement to service connection for right wrist CTS is remanded. FINDING OF FACT 1. In a January 1993 rating decision, the Department of Veterans Affairs (VA) Regional Office (RO) denied service connection for right wrist CTS; the Veteran did not appeal the decision and new and material evidence was not received within the one-year appeal period. 2. Evidence associated with the record since the January 1993 decision relates to unestablished facts and raises a reasonable possibility of substantiating the claim of entitlement to service connection for right wrist CTS. CONCLUSION OF LAW New and material evidence has been received and the claim seeking service connection for right wrist CTS is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1981 to September 1984. This matter is before the Board of Veterans’ Appeals (Board) on appeal of a November 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In July 2019, the Board remanded the case to the RO for additional development. In general, decisions of the RO and the Board that are not appealed in the prescribed time period are final. 38 U.S.C. §§ 7104, 7105 (2012); 38 C.F.R. §§ 3.104, 20.1100, 20.1103 (2019). A finally disallowed claim, however, may be reopened when new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108 (2012). Regardless of the action taken by the RO, the Board must determine whether new and material evidence has been received subsequent to an unappealed RO denial. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). As part of this review, the Board considers evidence of record at the time of the previous final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim, and evidence submitted since a prior final disallowance. Evans v. Brown, 9 Vet. App. 273, 285-86 (1996). New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing 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 of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (2017). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, to include by triggering the Secretary’s duty to assist or consideration of a new theory of entitlement. Shade, 24 Vet. App. at 117-18. Additionally, 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). Furthermore, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed but were not associated with the claims file when VA first decided the claim, VA will reconsider the claim, rather than requiring new and material evidence. 38 C.F.R. § 3.156(c)(1). To establish service connection, a Veteran must show: (1) the existence of a present 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 - the so-called nexus requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). The RO denied the Veteran’s claim of service connection for right wrist CTS in a January 1993 rating decision, finding that there was no objective evidence the Veteran had right wrist CTS. The Veteran was provided notice of this decision and his appellate rights but 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. §§ 3.156, 20.302, 20.1103 (1992). The evidence received since the January 1993 rating decision includes evidence that is both new and material to the claim. See 38 C.F.R. § 3.156. For example, a September 2020 VA examination shows a diagnosis of right wrist CTS. Further, the Veteran now asserts a service-connected disability, residuals of a right ring finger caused or aggravated right wrist CTS. This new evidence addresses the reason for the previous denial; that is, a diagnosis of right wrist CTS with a nexus to a service- connected disability and raises a reasonable possibility of substantiating the claim. The credibility of this evidence is presumed for purposes of reopening the claim. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Accordingly, the claim is reopened and will be considered on the merits. REASONS FOR REMAND 1. Entitlement to service connection for right wrist CTS is remanded. Although the claim for service connection for right wrist CTS is reopened, further development is warranted. First, as noted above, the September 2020 VA examiner diagnosed right wrist CTS but concluded the disability was not related to an injury, illness, or event in service to include the service injury to the right finger. In July 1983, the Veteran’s right ring finger was surgically repaired after sustaining a severe laceration. The scar extends down into the wrist area. The VA examiner did not address the Veteran’s contention that pain and weakness caused by the ring finger disability is etiologically related to the later development of right wrist CTS. Specifically, the Board finds the VA examiner did not discuss whether the right ring finger disability aggravated right wrist CTS. See 38 C.F.R. § 3.310. Therefore, a new VA examination is required. The service representative requested VA to provide information to demonstrate that the VA Examiner who provided medical opinions was qualified to offer the opinions. See Francway v. Wilkie, 940 F.3d 1304 (Fed. Cir. 2019). Accordingly, upon remand, the qualifications of the September 2020 VA examiner as well as the qualifications of the examiner who conducts the new VA examination shall be associated with the file. The matters are REMANDED for the following action: 1. Obtain the qualifications of the VA physician’s assistant who provided the September 2020 medical opinion and the VA examiner who conducts the VA examination provided below. This information is to be associated with the Veteran’s claims file. 2. After any additional records are associated with the claims file, obtain an addendum opinion regarding the etiology of the right carpal tunnel syndrome from a VA examiner. The entire claims file must be made available to and be reviewed by the examiner. If an examination is deemed necessary, it shall be provided. An explanation for all opinions expressed must be provided. First, the examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the right CTS had onset in, or is otherwise related to, active service, to include a July 1983 accident that lacerated the right ring finger. Second, the examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the right CTS is at least as likely as not (a) caused by, or (b) aggravated by service-connected residuals of post- operative right ring finger tendon repair. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Russell P. Veldenz, 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.