Citation Nr: 21024760 Decision Date: 04/26/21 Archive Date: 04/26/21 DOCKET NO. 15-16 092 DATE: April 26, 2021 ORDER New and material evidence has been received to reopen a previously denied claim for service connection for a disability of the right wrist. Entitlement to service connection for a disability of the right wrist is granted, effective July 3, 1980. FINDINGS OF FACT 1. In September 1975, the Agency of Original Jurisdiction (AOJ) denied a claim for service connection for a right wrist disability; the Veteran did not appeal that decision nor did he submit new and material evidence within one year after he was notified of the decision. 2. In September 1977 and October 1977, the Veteran asked the AOJ to reopen his previously denied claim for service connection for a right wrist disability; the AOJ denied these requests in September 1977 and November 1977, respectively; the Veteran did not appeal the November 1977 decision nor did he submit new and material evidence within one year after he was notified of the decision. 3. In July 1980, the Veteran once again asked the AOJ to reopen his previously denied right wrist claim; the AOJ denied this request in December 1980; but in March 1981 the Veteran submitted a timely notice of disagreement initiating an appeal of the denial of his request to reopen. 4. Evidence received since the November 1977 decision is new, relates to facts necessary to substantiate the previously denied claim for service-connected compensation for a right wrist disability, and raises a reasonable possibility of substantiating the claim. 5. A disability of the right wrist was not noted in the report of examination at the time the Veteran entered active duty service. 6. There is not clear and unmistakable evidence showing that the Veteran’s current disability of the right wrist was not aggravated by service. 7. The evidence is at least evenly balanced as to whether the Veteran experienced symptoms of his current right wrist disability in service. CONCLUSIONS OF LAW 1. The September 1975 decision denying service connection for a right wrist disability is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. The November 1977 decision denying the request to reopen a previously denied right wrist claim is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 3. New and material evidence sufficient to reopen the previously denied claim for service connection for a right wrist has been received. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156(a), 20.1105. 4. The Veteran is presumed to have been in sound condition when he was examined, accepted, and enrolled for service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). 5. With respect to the Veteran’s current right wrist disability, the record does not include clear and unmistakable evidence rebutting the presumption of soundness. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). 6. With reasonable doubt resolved in favor of the Veteran, his current disability of the right wrist was incurred in service. 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 September 1974 to July 1975. This case comes to the Board from a December 1980 decision of the Agency of Original Jurisdiction (AOJ). In May 2018, the Veteran testified before the undersigned at a videoconference hearing. A transcript of that hearing is of record. In August 2018, the Board issued a decision and remand, denying service-connected compensation for diabetes mellitus and also denying a request for an earlier effective date for non-service-connected pension benefits. The Board remanded the Veteran’s request to reopen a previously denied claim for service connection for a right wrist disability for further development. The Board vacated the part of the August 2018 decision denying an earlier effective date for non-service-connected pension in November 2018, moving forward the previously assigned effective date to July 24, 2014. Thus, the diabetes and pension claims are no longer part of this appeal, which now includes only the issues associated with the right wrist disability. In written statements, the Veteran has asked the Board to find that, in a September 1975 decision, the AOJ committed clear and unmistakable error (CUE) when it denied his initial claim for service-connected compensation for a right wrist disability. See 38 U.S.C. § 5109A, 38 C.F.R. § 3.105. In its August 2018 decision and remand, the Board acknowledged these arguments, but observed that the AOJ had not yet issued a decision on the CUE claim. For these reasons, the Board referred the Veteran’s CUE claim to the AOJ for appropriate action. In August 2019, the AOJ denied the Veteran’s request to revise the September 1975 decision based on his allegation of CUE. The AOJ mailed a copy of this decision and an explanatory letter to the Veteran at the address he identified in his previous correspondence. But it appears that the Veteran did not appeal the August 2019 decision denying his CUE petition. Under these circumstances, the Board lacks jurisdiction over the issue of whether the September 1975 decision includes a clear and unmistakable error. In December 2020, the Veteran contacted the Board to indicate his desire for a new virtual hearing. Because the Board remanded his claim after his May 2018 hearing, the Veteran had a right to another hearing. See Quinn v. Wilkie, 31 Vet. App. 284 (2019). But he wrote to the Board in February 2021, withdrawing his hearing request. Thus, this appeal can proceed without a second hearing. In January 2021, the Board granted the Veteran’s motion to have this appeal advanced on the docket pursuant to 38 U.S.C. § 7107. Reopening The AOJ received the Veteran’s initial claim for service-connected compensation for traumatic arthritis of the right wrist in July 1975, approximately one week after he was discharged from the Air Force. The AOJ denied the claim in September 1975 and notified the Veteran of its decision in a letter, which advised him of his right to appeal and was mailed to the address he identified in his July 1975 claim. The Veteran did not file a notice of disagreement (NOD) appealing the July 1975 decision. Nor did he submit any new evidence or information concerning his right wrist during the year after he was notified of the decision. Thus, the September 1975 decision became final in September 1976. See 38 C.F.R. § 20.1103. In August 1977, the Veteran submitted a written statement indicating his belief that, during his active duty service, changing heavy truck tires aggravated his right wrist disability. In September 1977, the AOJ notified the Veteran that he should submit medical evidence if he wanted his claim to be reconsidered. In October 1977, the Veteran submitted a copy of a physical profile report, dated June 18, 1975, which indicates that, due to traumatic arthritis of the right wrist, the Veteran’s duties would be limited for three months. Treating this submission as a request to reopen the right wrist claim which was denied in 1975, the AOJ denied the request in a letter dated November 1977. This letter informed the Veteran that the physical profile form, “does not constitute new evidence as it was on file when the original decision disallowing service connection for a right wrist condition was reached. Since the appeal period of 1 year has expired, your claim may only be reopened if new and material evidence is submitted.” The Veteran did not file a NOD within one year after he was informed of the denial of his request to reopen his right wrist claim in November 1977. Nor did he submit any information about his right wrist disability to VA until June 1980. Because he did not appeal the November 1977 denial of his request to reopen his right wrist claim or submit new and material evidence within one year after he was notified of that decision, the November 1977 decision became final in November 1978. See 38 C.F.R. § 20.1103. In June 1980, the Veteran mailed a letter to the AOJ, in which he criticized the September 1975 decision and wrote, “I am requesting an appeal as soon as possible.” In July 1980, the Veteran submitted a copy of an in-service medical examination report, dated June 1975, and a statement indicating that, “I would like to reopen my case for service-connected disability for a wrist condition.” In December 1980, the AOJ mailed a letter to the Veteran explaining its decision to deny the request to reopen his claim. The letter indicated to the Veteran that, “The material you submitted was previously considered.” Within one year after receiving this letter, the Veteran submitted a letter indicating that, “I am appealing to the Board of Veterans Appeal [sic] to reopened [sic] my claim for disability. . .” Date stamps on the reverse side of the letter indicate that both the Board and the AOJ received this letter within one year after the December 1980 denial of the request to reopen the right wrist claim. It seems that the AOJ did not treat this letter as a timely NOD because it came too late to initiate an appeal of the September 1975 decision. But at the time any “written communication . . . expressing dissatisfaction or disagreement with an adjudicative determination of an agency of original jurisdiction will constitute a Notice of Disagreement. . . It need not be couched in specific language.” 38 C.F.R. § 19.118 (1980). The AOJ should have treated the Veteran’s letter as a timely NOD appealing the December 1980 decision to deny the request to reopen his previously denied claim for service connection for a right wrist disability. Unlike the September 1975 and November 1977 decisions, the December 1980 decision never became final, which means that the request to reopen the right wrist claim has been pending since July of 1980. Page ten of the Board’s August 2018 remand includes much of this analysis, correctly indicating that the Veteran’s 1977 requests to reopen his claim became final after he failed to appeal the AOJ’s decision denying them. The introduction to that document, however, erroneously indicates that the right wrist issue comes to the Board on appeal of an AOJ decision dated October 1977. October 1977 is both the date the Veteran submitted a copy of the in-service physical profile report and the date the AOJ prepared a “deferred or confirmed rating decision ”, a handwritten preliminary draft of the letter decision which the AOJ mailed to the Veteran in November 1977. As the Board has explained, the November 1977 decision became final. This appeal reaches the Board from the December 1980 AOJ decision. VA may reopen and review a previously denied claim if new and material evidence is received or submitted by or on behalf of a veteran. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 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(a). 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, 512-13 (1992). The phrase “raises a reasonable possibility of establishing the claim” in 38 C.F.R. § 3.156(a), must be viewed as enabling rather than precluding reopening. Shade v. Shinseki, 24 Vet. App. 110, 121 (2010). The Board will reopen the previously denied claim if new and material evidence has been received since the November 1977 decision. During the May 2018 hearing, the Veteran described experiencing a sharp pain in his arm and wrist when using a wrench to remove the bolts fastening tires to a fuel truck. According to the Veteran, this happened on June 18, 1975, which is the date the Veteran visited the orthopedic clinic at the Air Force base where he was stationed, and is also the date of the physical profile report indicating traumatic arthritis of the wrist. The orthopedic clinic records mention a pre-service fracture “reported to have involved the distal radius.” Since November 1977, the Veteran submitted correspondence describing his more recent medical treatment. He wrote that recent imaging studies indicated an old fracture to the right distal ulna bone in addition to the pre-service fracture to the radius. A VA orthopedic surgery consultation note, dated April 2017, appears to confirm this, noting both a “distal radius [fracture] healed” and “ulnar styloid [fracture] nonunion. . .” Although the evidence available to the AOJ in November 1977 included the Veteran’s August 1977 written statement attributing an aggravation of his pre-service injury to changing the heavy tires of fuel trucks, this statement did not describe a any specific injury. Nor did the statement identify the date of a specific injury, or suggest that, during his active duty service, the Veteran may have injured a bone which was previously unaffected by his pre-service injury. Taking this evidence as true for the purposes of the reopening analysis, see Justus, 3 Vet. App. at 512-13, the Board will reopen the previously denied claim for service connection for a disability of the right wrist. Service Connection for a Disability of the Right Wrist Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the current disability and an in-service precipitating disease, injury or event. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Service connection “basically . . . means that . . . a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces . . . . This may be accomplished by affirmatively showing inception or aggravation during service . . .” 38 C.F.R. § 3.303(a). Statements in the medical records raise the issue of whether the Veteran may have had a wrist disability before joining the Air Force, implicating the presumption of soundness. See Gilbert v. Shinseki, 26 Vet. App. 48, 54 (2012). Under this statutory presumption, except for defects, infirmities or disorders noted on an entrance examination, every veteran is generally presumed to have been in sound condition when examined, accepted, and enrolled for service. See 38 U.S.C. § 1111. A medical history, even if recorded at the time of examination does not constitute a notation of such conditions for the purposes of the presumption of soundness. 38 C.F.R. § 3.304(b)(1). When no preexisting condition is noted upon entry into service, the veteran is presumed to have been sound upon entry. The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the claimed disability was both preexisting and not aggravated by service. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004) (emphasis added). This is a difficult burden to overcome because the clear and unmistakable standard is a high one and because of the two-part nature of the burden. Moreover, with respect to the aggravation prong of the burden, the Secretary is in the unusual position of being required to prove a negative. See Horn v. Shinseki, 25 Vet. App. 231, 238 (2012) (“When the presumption of soundness applies, however, the burden remains on the Secretary to prove lack of aggravation and the claimant has no burden to produce evidence of aggravation.”) According to the report of medical examination at time he joined the Air Force, dated August 1974, the Veteran’s upper extremities were normal. At the time of that examination, the Veteran completed a report of medical history form, on which he indicated a history of broken bones. According to a handwritten note on the reverse side of the history form, he broke his arm and was taken to the hospital. The physician’s notes on the same form indicate a history of right wrist fracture with “no sequelae.” Because the medical history form does not constitute a notation of a pre-existing disability for the purpose of the presumption, the presumption of soundness applies in this case. 38 C.F.R. § 3.304(b)(1). The service treatment records include a progress note, dated May 1975, which indicates that the Veteran fractured his wrist two years earlier and that the wrist had become painful. The physician suggested that a strained ligament could potentially explain the pain. The service treatment records do not include a separation examination report. But there is a second examination report, dated June 16, 1975, which indicates that its purpose was to evaluate the Veteran for “Flying Class III.” Like the entrance examination, the clinical evaluation section of this report indicates normal upper extremities. On the reverse side of the examination form, the examiner wrote: “Fractured right arm, 1973, in a fall. Casted six weeks with full recovery.” As noted, two days after the Flying Class III examination (June 18, 1975) is when the Veteran said he injured his wrist when removing the nuts from the truck tires with the wrench. It is also the date of his visit to the orthopedic clinic. The orthopedist’s notes indicate an impression of traumatic arthritis. The Veteran “was referred as an emergency for pain in his wrist with heavy activity following a fracture 2 years ago. This occurred prior to service and is reported to have involved the distal radius. The wrist aches with heavy activity at the base of the thumb.” No fractures were seen on x-ray. As noted, on the same day the Veteran received a physical profile, which removed heavy lifting or twisting motions of the wrist and hand from his duties. These limits were approved on a temporary basis, intended to be for three months. But the Veteran was discharged from the Air Force in July 1975 for reasons unrelated to his injury. Thus, there is no way to know whether a permanent restriction of the Veteran’s duties might have been necessary if he had remained in service. The AOJ arranged for a more recent examination of the Veteran’s right wrist in April 2018. According to the examiner’s report, there were three diagnoses: (1) de Quervain’s syndrome (with an initial date of diagnosis of February 2017); (2) traumatic arthritis (1975); and (3) fracture of the distal radius (1973). The Veteran’s current symptoms consisted of slightly limited range of motion in the right wrist with pain during dorsiflexion, ulnar deviation, and radial deviation. Range of motion in the opposite, uninjured, left wrist was normal and without pain. It appears that the AOJ obtained an opinion from the April 2018 examiner to help decide a separate claim for a hand disability. Perhaps because of this context, the AOJ did not obtain an opinion as to whether the evidence of a pre-existing right wrist disability is strong enough to overcome the presumption of soundness. The examiner did, however, provide an unfavorable opinion on the issue of whether the current right wrist disability began in service or was the secondary result of the Veteran’s claimed hepatitis C. To support her opinion, the examiner gave the following explanation: “Hepatitis C that does not cause localized arthritis Veteran has pre-existing fracture of right distal radius in 1973 and hence traumatic arthritis in 1975 and no medical follow up until a physical altercation in 2012 so his condition did not progressive [sic] got worse in service beyond what was expected.” The Board has reviewed the 2012 medical records mentioned in the April 2018 opinion. It is clear that the Veteran was injured in 2012, but most of his subsequent complaints of pain and all of his post-injury physical therapy sessions seem to have concerned his shoulders, not his right wrist. Under these circumstances, the suggestion that the Veteran did not complain of significant wrist pain until this post-service injury – and certainly any theory attributing his current wrist disability to that injury – are unconvincing. The Board has considered the possibility of remanding the reopened right wrist claim to the AOJ to obtain a new medical opinion addressing whether the evidence clearly and unmistakably proves that the Veteran’s current right wrist disability both existed before service and was not aggravated by service. But under these circumstances, it is highly unlikely that any future medical opinion could persuasively demonstrate that the evidence in this case is strong enough to overcome the presumption of soundness. When the Veteran joined the Air Force, his report of medical history did clearly mention a pre-service injury. But the medical history report indicated that he recovered and there had been “no sequelae”, an assessment echoed by the Flying Class III examination report: “Fractured right arm, 1973, in a fall. Casted six weeks with full recovery.” Yet the Veteran has provided competent testimony that he experienced a sharp increase in right wrist pain in June 1975 and his service treatment records corroborate those complaints. It is also significant that the April 2012 VA examiner identified the pre-injury fracture to the distal radius as a separate diagnosis from the traumatic arthritis noted in service. The examiner’s report identified 1975 as the initial date of diagnosis for traumatic arthritis, which favors either a finding of a new in-service injury to the right wrist or else an aggravation of the Veteran’s pre-existing right wrist injury. Neither possibility is consistent with a finding that the presumption of soundness was rebutted. “[E]ven if a medical opinion is inadequate to decide a claim, it does not follow that the opinion is entitled to absolutely no probative weight.” Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012). While the April 2018 opinion includes errors, the examiner’s suggestion that it would be difficult to disentangle the effects of the pre-service injuries from injuries many years later implicitly suggests that it is unlikely that any medical professional, more than forty years after the Veteran’s discharge from active duty, could persuasively demonstrate that his current right wrist disability pre-existed service and was not aggravated by service. The Board has a duty to avoid development which can have no purpose other than to obtain evidence against the Veteran. See Mariano v. Principi, 17 Vet. App. 305, 312 (2003). Under these circumstances, the evidence insufficient to rebut the presumption of soundness. “[I]f the government fails to rebut the presumption of soundness under section 1111, the veteran's claim is one for service connection.” Wagner, 370 F.3d at 1096. The April 2018 examination report satisfies the current disability requirement of the Veteran’s claim. The Veteran’s testimony and the in-service physical profile, orthopedic clinic notes, and in-service diagnosis of traumatic arthritis satisfy the in-service injury requirement. Taken together, the Veteran’s testimony and the diagnosis section of the April 2018 report demonstrate that the evidence is at least evenly balanced as to whether that the Veteran continues to experience the symptoms of right wrist traumatic arthritis noted in service. By law, the doubt resulting from this equipoise in the evidence is resolved in the appellant’s favor. See 38 U.S.C. § 5107(b); Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) (“By requiring only ‘an approximate balance of positive and negative evidence’. . . , the nation, ‘in recognition of our debt to our veterans,’ has ‘taken upon itself the risk of error’ in awarding... benefits.”). Thus, the Board will grant service connection for a disability of the right wrist. Because this appeal comes to the Board from the Veteran’s appeal of the December 1980 AOJ decision, the effective date of the Veteran’s benefits should be July 3, 1980 (the date the AOJ received the request to reopen). DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Nye, 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.