Citation Nr: 21031653 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 17-67 107 DATE: May 24, 2021 ORDER New and material evidence has been received sufficient to reopen the claim of entitlement to service connection for a right wrist disability, claimed as carpal tunnel syndrome. New and material evidence has been received sufficient to reopen the claim of entitlement to service connection for a left wrist disability, claimed as carpal tunnel syndrome. New and material evidence has been received sufficient to reopen the claim of entitlement to service connection for a right elbow condition, claimed as peripheral nerve damage. New and material evidence has been received sufficient to reopen the claim of entitlement to service connection for a left elbow condition, claimed as peripheral nerve damage. REMANDED The claim of entitlement to service connection for a right wrist condition, claimed as carpal tunnel syndrome, is remanded. The claim of entitlement to service connection for a left wrist condition, claimed as carpal tunnel syndrome, is remanded. The claim of entitlement to service connection for a right elbow condition, claimed as peripheral nerve damage, is remanded. The claim of entitlement to service connection for a left elbow condition, claimed as peripheral nerve damage, is remanded. FINDINGS OF FACT 1. In a January 2015 rating decision, the RO denied the Veteran's claim of entitlement to service connection for bilateral wrist and elbow disabilities. The Veteran did not file a Notice of Disagreement or submit new evidence within one year of the decision. Thus, the rating decision became final. 2. Evidence has been received since the January 2015 rating decision that relates to an unestablished fact necessary to substantiate the claims and raises a reasonable possibility of substantiating the claims of entitlement to service connection for bilateral wrist and elbow disabilities. CONCLUSIONS OF LAW 1. The January 2015 rating decision is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103. 2. New and material evidence has been received since the January 2015 denial of service connection for bilateral wrist and elbow disabilities. 38 U.S.C. §§ 5103, 5108; 38 C.F.R. §§ 3.156, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active duty service with the United States Army from November 1976 to November 1979 with additional Reserve and National Guard service. The instant matter is on appeal from a January 2016 rating decision. In February 2021, the Veteran testified before the undersigned in a virtual hearing. A transcript of the proceedings has been associated with the record. New and Material Evidence 1. New and material evidence has been received sufficient to reopen the claims of entitlement to service connection for bilateral wrist and elbow disabilities Generally, if a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108. "New" evidence is defined as existing evidence not previously submitted to agency decision makers. "Material" evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The threshold to reopen a claim is low. Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The RO initially denied the Veteran's claim of entitlement to service connection for bilateral wrist and elbow disabilities due to a lack of in-service diagnosis and nexus with service. To the extent the VA was in constructive possession of VA treatment records produced through the subsequent one-year appeal period, the records do not relate to any etiological relationship with active duty service for the disabilities on appeal. Thus, these records are not new and material. The Veteran did not submit new and material evidence within one year or otherwise timely appeal this determination. As a result, the January 2015 rating decision is final. Lang v. Wilkie, 971 F.3d 1348 (2020); Beraud v. McDonald, 766 F.3d 1402, 1407 (Fed. Cir. 2014). Since that rating decision, the Veteran submitted a Disability Benefits Questionnaire (DBQ) diagnosing disabilities of the wrists and elbows, as well as lay testimony regarding the onset of symptoms during service related to these diagnoses. The bar to reopening a claim for new and material evidence is low, and the Veteran's medical and lay evidence on these issues meets that threshold. Therefore, such evidence is new and material, and the claims of entitlement to service connection for bilateral wrist and elbow disabilities are reopened. REASONS FOR REMAND 1. The claim of entitlement to service connection for bilateral wrist and elbow disabilities are remanded. The Board regrets the additional delay, but remand is necessary in order to afford VA examinations on these issues, as well as attempt to obtain relevant private treatment records. Initially, the Board notes that the Veteran has reported undergoing treatment from non-VA sources. The Veteran provided some limited records from two private clinicians, but it does not appear that the Regional Office made reasonable efforts to identify and obtain all relevant private treatment records prior to adjudication on these issues. Thus, remand is necessary in order to make reasonable attempts to obtain the Veteran's private treatment records. Additionally, the Veteran has not been afforded VA examinations to assess the disabilities on appeal. The Veteran reported in the hearing before the undersigned that he experienced symptoms in his wrists and elbows during repetitive work he performed in service. These symptoms continued through his discharge, but he believed they would diminish on their own. He did not seek treatment for these symptoms until around 1989 or 1990, at which point he underwent surgery for the disabilities. Given the ongoing nature of these wrist and elbow neurological symptoms, as well as the subsequent diagnoses of disabilities that caused those symptoms, there is at least an indication that the Veteran's present disabilities may be related to service. Thus, remand is also necessary in order to obtain VA examinations on these issues. The matters are REMANDED for the following action: 1. Contact the Veteran and the representative of record in order to identify any outstanding non-VA treatment records regarding the issues on appeal. If non-VA providers are identified, obtain releases for those records. Make all reasonable attempts to obtain the non-VA treatment records and associate them with the claims file. If such records cannot be obtained, inform the Veteran and the representative of record, and afford an opportunity to provide these outstanding records. 2. Obtain any relevant, outstanding VA treatment records that are not already associated with the claims file. If no records are available, the claims folder must indicate this fact and the Veteran should be notified in accordance with 38 C.F.R. § 3.159 (e). All attempts to contact the Veteran should be documented in the record. 3. Once the aforementioned development is complete, schedule the Veteran for a VA examination to assess the etiology of his bilateral wrist and elbow disabilities. A complete copy of the claims file must be provided to the examiner, including a copy of this remand. The examiner should take a history from the Veteran, and must consider lay reports of observable symptomatology. After a thorough review of the record, the examiner should opine as to the following: (a.) Identify any and all present diagnoses pertaining to the wrists and elbows, which have been claimed as carpal tunnel and peripheral nerve damage. (b.) For each identified diagnosis, is it at least as likely as not (i.e. a probability of 50 percent or more) that the identified disability had its onset during active service or within one year of separation from service, or, otherwise resulted from active military service? Please discuss the Veteran's reports of symptoms beginning around 1978. The examination report should specifically state that a review of the record was conducted. The examiner should provide a complete rationale for all opinions provided. If an opinion cannot be provided without to resorting to mere speculation, the examiner should identify all medical and lay evidence considered in this conclusion, fully explain why this is the case and identify what additional evidence (if any) would allow for a more definitive opinion. (Continued on the next page) 4. Following completion of the foregoing, the AOJ should review the record and readjudicate the claims on appeal. If any remain denied, the AOJ should issue an appropriate supplemental SOC, afford the Veteran and his representative an opportunity to respond, and return the case to the Board. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Fisher, 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.