Citation Nr: 21040850 Decision Date: 07/07/21 Archive Date: 07/07/21 DOCKET NO. 17-01 663 DATE: July 7, 2021 ORDER New and material evidence has been received to reopen the claim of entitlement to service connection for a right elbow disability. REMANDED Entitlement to service connection for a right elbow disability is remanded. FINDINGS OF FACT 1. An April 1973 rating decision denied service connection for a right elbow disability and a January 2006 rating decision declined to reopen the claim; the Veteran did not appeal those decisions, and new and material evidence was not received within one year of notice of their issuance. 2. Evidence received more than one year since the most recent final January 2006, namely a March 2021 VA examination report, is neither cumulative nor redundant of evidence already of record and raises a reasonable possibility of substantiating the claim of entitlement to service connection for a right elbow disability. CONCLUSIONS OF LAW 1. The April 1973 and January 2006 rating decisions are final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. The criteria to reopen the claim of entitlement to service connection for a right elbow disability are met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from August 1970 to March 1973, including additional Reserve service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In a January 2017 statement, the Veteran withdrew his Board hearing request. 38 C.F.R. § 20.704(e). The Board remanded the claim for further development in May 2019 and January 2021. Notably, during the pendency of this appeal, a May 2021 rating decision awarded service connection for prostate cancer. This issue is accordingly not in appellate status. 1. New and material evidence has been received to reopen the claim of entitlement to service connection for a right elbow disability. A claimant may reopen a finally adjudicated legacy claim by submitting new and material evidence. New evidence is evidence not previously part of the actual record before agency adjudicators. 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). The Veteran's initial claim of entitlement to service connection for a right elbow disability (claimed as right elbow fracture) was denied in an April 1973 rating decision for lack of a current diagnosis. The Veteran did not appeal this decision, and new and material evidence was not received within one year of its issuance. Accordingly, the April 1973 rating decision is final. See 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156(b), 20.1103. A January 2006 rating decision confirmed and continued the denial of service connection for a right elbow disability (claimed as right elbow arthritis) for lack of a current diagnosis. The Veteran did not appeal this decision, and new and material evidence was not received within one year of its issuance. Accordingly, the January 2006 rating decision is also final. Id. Evidence received more than one year since the most recent final January 2006 rating decision includes a March 2021 VA elbow examination report that reflects a current diagnosis of right elbow bursitis. This evidence is new in that it was not considered in the prior denials. This evidence is also material, as it relates to an unestablished fact (current diagnosis) necessary to substantiate the claim. Therefore, there is new and material evidence to reopen the previously denied claim of entitlement to service connection for a right elbow disability. REASONS FOR REMAND 2. Entitlement to service connection for a right elbow disability is remanded. Remand is warranted, as the March 2021 VA examiner's opinion is inadequate. Specifically, the examiner rendered a negative opinion based on a substantial gap in the medical records between the in-service elbow injury and the Veteran's current report of elbow pain, and the Board finds this rationale is insufficient. The examiner offered no explanation as to why a gap in treatment would preclude a nexus between the elbow injury sustained in service and the current elbow disability. Accordingly, an addendum opinion is necessary on remand. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). All outstanding treatment records should also be secured on remand. The matter is REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. With any necessary assistance from the Veteran, obtain any outstanding relevant private treatment records. 3. Then obtain an addendum opinion from the March 2021 VA examiner (or other examiner, if unavailable) regarding the etiology of the Veteran's right elbow disability. The entire claims file should be made available to the examiner. No additional examination is necessary, unless the examiner determines otherwise. Following a review of the claims file, the examiner should opine as to whether it is as least as likely as not (50 percent or greater probability) that the Veteran's right elbow bursitis had its onset in or is otherwise related to service, to include as a result of the documented September 1972 right elbow contusion therein. In addressing this question, the examiner must discuss and assume as true the Veteran's report of continuous right elbow symptomology since service (see March 2021 VA elbow examination, Section II Medical History) and determine, based on the same, whether a nexus between the Veteran's right elbow disability and service is "medically plausible." Failure to consider the Veteran's lay statements will result in an inadequate opinion. Also, please note that the lack of contemporaneous medical records is not dispositive and may not be used as a basis for a negative opinion. A complete rationale should be given for all opinions and conclusions expressed. If unable to opine without speculation, please provide a basis for that conclusion. S. BUSH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S.S. Mahoney 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.