Citation Nr: 21040263 Decision Date: 07/02/21 Archive Date: 07/02/21 DOCKET NO. 17-17 147A DATE: July 2, 2021 ORDER The previously denied claim for entitlement to service connection for thoracic outlet syndrome, left upper, status post-cervical rib resection is reopened on the basis of new and material evidence; to this extent only, the appeal is granted. REMANDED Entitlement to service connection for thoracic outlet syndrome, left upper, status post-cervical rib resection, to include neuropathy, is remanded. FINDINGS OF FACT 1. In a February 1983 rating decision, the RO denied service connection for thoracic outlet syndrome, left upper, status post-cervical rib resection; the Veteran did not appeal that decision or submit new and material evidence within the year following notification of that decision. 2. Evidence received since the February 1983 rating decision includes information that was not previously considered that related to an unestablished fact necessary to substantiate the claim of service connection for thoracic outlet syndrome, left upper, status post-cervical rib resection. CONCLUSIONS OF LAW 1. The February 1983 RO decision, which denied the Veteran's claim of service connection for thoracic outlet syndrome, left upper, status post-cervical rib resection, is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. 2. New and material evidence has been received to reopen the previously denied and final claim of service connection for thoracic outlet syndrome, left upper, status post-cervical rib resection. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1978 to December 1981 This case comes before the Board of Veterans' Appeals (Board) on appeal of a December 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) in a March 2021 Board hearing. New and material evidence Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. §§ 7104, 7105. However, if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108. 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). There is a low threshold for determining whether evidence raises a reasonable possibility of substantiating a claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). In determining whether that 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 consider whether the evidence could reasonably substantiate the claim were the claim to be reopened, including by triggering VA's duty to obtain a VA examination. Id. Moreover, the Veteran need not present evidence as to each element that was a specified basis for the last disallowance, but merely new and material evidence as to at least one of the bases of the prior disallowance. Id. 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 (1992). The Veteran was originally denied service connection for thoracic outlet syndrome, left upper, status post-cervical rib resection in a February 1983 rating decision. The Veteran did not file a notice of disagreement with the decision, nor was any new and material evidence received during the remainder of the appeal period. 38 C.F.R. § 3.156(b). Therefore, the February 1983 rating decision is final. 38 U.S.C. § 7105(c); 38 C.F.R. § § 3.104, 20.302, 20.1103. In the February 1983 rating decision, the RO stated that there was no sensory deficit and that nerve studies were normal on the left. The 1983 rating decision also stated that nerve conduction studies were normal, but the examiner commented that thoracic outlet syndrome could not be completely ruled out because in most cases the compression is vascular rather than neurogenic. The RO ultimately found that the Veteran's thoracic outlet syndrome was caused by a cervical rib, bilaterally and that the condition was congenital. The RO stated that after surgery the left side was asymptomatic, the right side returned to pre-service condition, and aggravation was not shown. The Veteran filed a claim to reopen his previously denied claim for service connection in November 2015. Along with his claim to reopen, the Veteran submitted a VA Form 21-4138 Statement in Support of Claim where the Veteran stated that he is ". . . unable to extend to full range of motion, where arthritis has set in, and some nerve problems, which leave me with numbness from the left index finger to the shoulder. I am unable to do any heavy lifting." The Veteran also testified in the March 2021 hearing that he had no back issues prior to service, he is currently seeking treatment, and has been prescribed Gabapentin. The Veteran stated he has numbness in the left hand, elbow, and shoulder area pertaining to the thoracic issue. VA medical records from March 2020 show the Veteran was experiencing numbness of the left arm. As this evidence was not previously before agency decisionmakers, relates to an unestablished fact necessary to substantiate the Veteran's claim, and is neither duplicative nor cumulative of evidence previously received, the Board finds it to be new and material sufficient to warrant reopening the Veteran's claim for service connection. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. The claim will be further addressed in the REMAND section of this decision. REASONS FOR REMAND 1. Entitlement to service connection for thoracic outlet syndrome, left upper, status post-cervical rib resection Generally, service connection may not be granted for congenital or developmental defects, as these are not considered a disease or injury for the purpose of determining service connection. See 38 C.F.R. §§ 3.303(c), 4.9. However, service connection may be granted if a congenital defect is subject to a superimposed disease or injury during service which results in additional disability. Id. Upon review of the evidence of record, the Board finds that a remand is in order for the purposes of procuring VA medical records and a VA examination. Namely, consideration must be given to whether the Veteran's cervical rib was aggravated beyond its natural progression in service or whether a preexisting congenital defect was subject to a superimposed injury in service, to include peripheral neuropathy and thoracic outlet syndrome. Additionally, the December 2015 rating decision addressed outstanding medical records from a VA medical which were not obtained. On remand, these records should be obtained and added to the Veteran's file. The matter is REMANDED for the following action: 1. The AOJ should request that the Veteran provide the names and addresses of any and all healthcare providers who have provided treatment for the claimed disabilities. After acquiring this information and obtaining any necessary authorizations, the AOJ should obtain and associate any outstanding records, including all VA treatment records, including VA records from 1981 to 1983 with the claims file. 2. Contact the Social Security Administration, and request and obtain the Veteran's complete Social Security records to date (decisions and medical records relied upon for those decision). If none are available, this should be documented in the claims file. 3. After all outstanding records have been associated with the claims file, forward the Veteran's claims file to a qualified medical professional for a VA examination. The entire claims file, including this remand, must be made available to and be reviewed by the examiner. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is asked to address the following: (a.) The examiner should identify all current upper body disorders including but not limited to a cervical rib, thoracic outlet syndrome, and neuropathy. (b.) For each diagnosis identified, the examiner should state whether the disorder is a congenital defect or disease. To assist the examiner, for VA adjudication purposes, "disease" generally refers to a condition considered capable of improving or deteriorating, whereas "defect" generally refers to a condition not considered capable of improving or deteriorating. (As an example, VA considers sickle cell anemia as a congenital "disease" for VA purposes, whereas refractive error is considered a congenital "defect.") (c.) For any congenital defect, the examiner should state whether there is any evidence of superimposed disease or injury during service. (d.) For any congenital disease or any disorder that is not congenital, the examiner should state whether the disease/disorder clearly and unmistakably preexisted the Veteran's active service. The term "clear and unmistakable" means that the evidence is undebatable. (e.) If the disease or disorder clearly and unmistakably pre-existed service, the examiner must state whether there was clearly and unmistakably NO aggravation during service. If the evidence reflects an increase, the examiner should indicate whether any increase was due to the natural progression of the disorder or whether it represented a chronic worsening of the underlying pathology. In responding to this question, the examiner should note that temporary or intermittent flare-ups of a preexisting injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted with symptoms, has worsened. (f.) For each diagnosis identified that is not congenital and/or did not preexist service, the examiner should state whether it is at least as likely as not (a 50 percent or greater probability) that the disorder manifested in or is otherwise related to the Veteran's military service, including any symptomatology and injury therein, including carrying heavy packs. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and Veteran's lay statements and hearing testimony. A complete and thorough rationale for each opinion offered must be provided. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Hetman 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.