Citation Nr: 21014115 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 19-24 792 DATE: March 11, 2021 ORDER The application to reopen the previously denied claim for entitlement to service connection for right shoulder disability is granted.     The application to reopen the previously denied claim for entitlement to service connection for right elbow epicondylitis is granted.     The application to reopen the previously denied claim for entitlement to service connection for right arm disability is granted.     Entitlement to service connection for right shoulder disability manifested by pain is granted. Entitlement to service connection for right elbow epicondylitis is granted. Entitlement to service connection for right arm disability manifested by pain is granted. FINDINGS OF FACT 1. In an April 2011 decision, the Agency of Original Jurisdiction (AOJ) denied the Veteran’s claims of service connection for right elbow epicondylitis and right arm disability.  Although the Veteran was notified of the AOJ’s decision and his appellate rights in a May 2011 letter, he did not perfect an appeal within the applicable time period in regard to those claims, nor was new and material evidence received within one year of issuance of that decision.    2. The evidence received since the April 2011 rating decision includes evidence that relates to unestablished facts necessary to substantiate the claims, is neither cumulative nor redundant of evidence already of record, and raises a reasonable possibility of substantiating the claims of service connection for right elbow epicondylitis and right arm disability.  3. In an October 2014 rating decision, the AOJ denied the Veteran’s claim of service connection for right shoulder disability.  Although the Veteran was notified of the AOJ’s decision and his appellate rights in an October 2014 letter, he did not perfect an appeal within the applicable time period in regard to that claim, nor was new and material evidence received within one year of issuance of that decision.    4. The evidence received since the October 2014 rating decision includes evidence that relates to unestablished facts necessary to substantiate the claim, is neither cumulative nor redundant of evidence already of record, and raises a reasonable possibility of substantiating the claim of service connection for right shoulder disability.  5. The Veteran’s current right elbow epicondylitis and right shoulder and right arm disabilities manifested by pain are related to his active duty service. CONCLUSIONS OF LAW 1. The April 2011 and October 2014 rating decisions denying the claims of service connection for right shoulder disability, right elbow epicondylitis, and right arm disability are final.  38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156(b), 20.1103.     2. New and material evidence has been received to warrant reopening the claims of service connection for right shoulder disability, right elbow epicondylitis, and right arm disability.  38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a).   3. The criteria for service connection for right elbow epicondylitis and right shoulder and right arm disabilities manifested by pain are met.  38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 2004 to March 2005 and October 2008 to December 2009 and performed service in the U.S. Army Reserve. The Veteran’s DD Form 214 reflects that he was awarded the Combat Action Badge. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an April 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that, among other things, confirmed and continued the previous denials of the claims of service connection for right shoulder disability, right elbow epicondylitis, and right arm disability. In March 2021, the Veteran testified before the undersigned Veterans Law Judge during a virtual hearing.  A transcript of that hearing is not necessary given that the Board is granting the benefits sought in full. Whether new and material evidence has been received to reopen the claims for entitlement to service connection for right shoulder disability, right elbow epicondylitis, and right arm disability Generally, a claim that has been denied in a final unappealed rating decision may not thereafter be reopened and allowed.  38 U.S.C. § 7105(c).  An exception to this rule is 38 U.S.C. § 5108 (2012), which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA will reopen the claim and review it on the merits.  The implementing regulation also provides that new and material evidence received prior to the expiration of the appeal period will be considered as having been filed in connection with the claim that was pending at the beginning of the appeal period.  38 C.F.R. § 3.156(b).     New evidence means 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(a).     To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. Evans v. Brown, 9 Vet. App. 273, 285 (1996).  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).     The question of whether new and material evidence has been received is one that must be addressed by the Board, notwithstanding a decision favorable to the Veteran that may have been rendered by the RO. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001) (the Board has a jurisdictional responsibility to consider whether it was proper for the RO to reopen a previously denied claim). In April 2011 and October 2014 rating decisions, the AOJ denied the Veteran’s claims of service connection for right elbow epicondylitis, right arm disability, and right shoulder disability, respectively, as there was no evidence of a right elbow disability and right arm disability in the Veteran’s service treatment records subsequent to his 2004 incident, and no evidence of a current or past diagnosis of, or treatment for, a right shoulder condition. Therefore, the claims remained denied.  Although the Veteran was notified of the RO’s decision and his appellate rights in May 2011 and October 2014 letters, he did not perfect appeals within the applicable time period, nor was new and material evidence received within one year of issuance of those decisions.  38 C.F.R. § 20.1103. Thus, the decisions became final.  In an April 2018 rating decision, the AOJ reopened the claims of service connection for right shoulder disability, right elbow epicondylitis, and right arm disability. However, the AOJ found the evidence of record continued to show the conditions were not incurred or aggravated by military service. Evidence received since the prior final April 2011 and October 2014 rating decisions includes the Veteran’s March 2021 Board hearing testimony describing his continuous right shoulder, right elbow, and right arm pain symptoms since service. Given the basis for the prior denials, this evidence is new to the record, relates to previously unestablished facts to support the claims, and raises a reasonable possibility of substantiating the claims.  Accordingly, reopening of the claims is warranted.    Entitlement to service connection for right elbow epicondylitis and right shoulder and right arm disabilities manifested by pain Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in-service.  38 C.F.R. § 3.303(d). The Veteran contends that he injured his right shoulder, elbow, and arm in August 2004 when he was struck on the right side of his body by a truck while on deployment to Abu Ghraib, Iraq. An August 2004 Line of Duty Determination confirmed the Veteran was walking from the dining facility in Abu Ghraib, Iraq when he was struck on the right side of his body by a truck driven by an Airman. The Veteran was found to have incurred a traumatic injury of the right elbow resulting in soft tissue swelling that was incurred in the line of duty. During an April 2005 VA examination, the Veteran reported he was hit by a military truck in Iraq, fell to the ground, and was unable to move his right arm. He has since experienced pain in his right shoulder and right arm on several occasions that was intermittent and lasted several hours. The Veteran was unable to do anything when in pain. The right shoulder was not unstable, and there was no dislocation. X-rays were normal. An October 2010 VA examiner found that the Veteran’s right shoulder, elbow, and arm disabilities were at least as likely as not related to an incident in military service when the Veteran was hit in the right shoulder and anterior chest by a truck. In a May 2010 VA treatment note, the Veteran reported pain in the elbow to the fingers that he described as a shooting pain that increased with activity. During a January 2014 VA examination, the Veteran reported that he was hit in the right shoulder by a large utility vehicle door in 2004 and continued to experience a constant nagging pain. Sharp pain in the forearm occurred with the use of the shoulder, and pain was aggravated with lifting, pushing, and pulling. The VA examiner found that the Veteran’s shoulder disability impacted his ability to work. The Veteran worked as a machinist, which required lifting, pushing, pulling, and reaching, and those activities aggravated his right shoulder pain. For the following reasons, entitlement to service connection for right elbow epicondylitis and right shoulder and arm disabilities manifested by pain is warranted. An October 2010 VA treatment note reported the Veteran’s diagnosis of right elbow epicondylitis. Moreover, multiple VA treatment notes indicated that the Veteran experienced right shoulder and right arm pain. While there is no specific diagnosis with regard to the Veteran’s right shoulder and right arm pain symptoms, the Court made clear in Saunders that a diagnosis is not required in order to satisfy the current disability requirement, and pain or other symptoms can constitute disability if they cause impairment in earning capacity. Saunders, 886 F.3d at 1364-65. Given the above evidence showing impairment in earning capacity due to right shoulder and right arm pain symptoms, the Board finds that the Veteran meets the current disability requirement. An August 2004 Line of Duty Determination found that the Veteran incurred a traumatic injury of the right elbow resulting in soft tissue swelling in the line of duty when he was struck by a truck while deployed to Iraq. Thus, he meets the in-service injury or disease requirement. The Veteran is competent to report continuous right shoulder, right elbow, and right arm pain symptoms in the years since service. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (a veteran is competent to testify regarding continuous pain since service, and lay evidence, when credible, is competent to establish the presence of continuous symptoms for a claimed disability during and since separation from military service); Buchanan v. Nicholson,451 F.3d 1331, 1337 (holding lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence). There is nothing to explicitly contradict the Veteran’s consistent reports, which he confirmed during his March 2021 Board testimony. Thus, they are credible and competent. In October 2010, a VA examiner found that the Veteran’s right shoulder, elbow, and arm disabilities were at least as likely as not related to an incident in military service when the Veteran was hit in the right shoulder and anterior chest by a truck. The opinion is based on an analysis of the evidence of record, which was accurately recorded, and is therefore entitled to some probative weight. Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). Moreover, it is the only nexus opinion of record. (Continued on the next page)   For the foregoing reasons, there is competent, probative evidence of current disabilities, in-service injury, and a nexus between the two. Entitlement to service connection for right elbow epicondylitis and right shoulder and right arm disabilities manifested by pain is therefore warranted. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Styer, 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.