Citation Nr: 21041173 Decision Date: 07/08/21 Archive Date: 07/08/21 DOCKET NO. 17-04 103 DATE: July 8, 2021 ORDER New and material evidence has been received sufficient to reopen the previously denied claim of entitlement to service connection for a right knee condition. Entitlement to service connection for residuals of right fifth finger fracture and surgical repair is granted. REMANDED Entitlement to service connection for a right knee condition is remanded. FINDINGS OF FACT 1. The Veteran's claim of entitlement to service connection for a right knee condition was denied in a July 1994 rating decision because there was no evidence of a current diagnosed condition. As the Veteran did not appeal or submit new and material evidence within the applicable appellate period, the decision became final. 2. The evidence which has been secured since the last final denial regarding entitlement to service connection for a right knee condition is both new and material. 3. The preponderance of the evidence weighs in favor of a finding that the Veteran has residuals of a right fifth finger fracture and surgical repair, and that those residuals are related to service. CONCLUSIONS OF LAW 1. The criteria for reopening the claim of entitlement to service connection for a right knee condition have been met. 38 U.S.C. §§ 1145(a), 5108, 7105; 38 C.F.R. §§ 3.156, 20.302, 20.1103. 2. The criteria for residuals of a right fifth finger fracture and surgical repair have been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from September 1981 to September 1984 and February 1985 to October 1993. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2015 rating decision issued by a Department of Veterans Affairs (VA) regional office. As an initial matter, the Board notes that, in an April 2016 Notice of Disagreement (NOD), in addition to the issues listed above, the Veteran also appealed claims of entitlement to service connection for a right hip strain, bilateral hearing loss, and residuals, foreign body in the left eye. However, in a January 2017 VA Form 9, the Veteran only perfected the issues of entitlement to service connection for residuals of a right fifth finger fracture and surgical repair and whether new and material evidence had been received sufficient to reopen the claim of entitlement to service connection for a right knee condition. As such, the appeal of the Veteran's claims of entitlement to service connection for a right hip strain, bilateral hearing loss, and residuals, foreign body in the left eye were not perfected and, therefore, are not currently before the Board. Additionally, the Board notes that evidence pertinent to the Veteran's claim of entitlement to service connection for residuals of right fifth finger fracture and surgical repair was added to the record since the issuance of the November 2016 Statement of the Case (SOC). However, the Board has decided not the remand the appeal to the Agency of Original Jurisdiction (AOJ) to issue a Supplemental Statement of the Case (SSOC) because, as discussed below, it is granting the appeal and therefore the Veteran is not prejudiced by not having the AOJ review this evidence. Lastly, the Board notes correspondence notifying the Veteran that these matters had been placed on the Board's docket was returned as undeliverable. See November 2018 Returned Mail. However, as the issues are either granted or being remanded for the reasons set forth below, the Board finds that the Veteran is not prejudiced by proceeding with adjudication of these matters. New and Material Evidence Generally, rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.200. An exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. The Board must consider the question of whether new and material evidence has been received because it goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim de novo. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). New evidence is that which was not previously submitted to agency decision makers. Material evidence is that which, 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 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). In order for evidence to be sufficient to reopen a previously disallowed claim, it must be both new and material. Evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented. Anglin v. West, 203 F.3d 1343 (2000). If the evidence is new, but not material, the inquiry ends, and the claim cannot be reopened. See Smith v. West, 12 Vet. App. 312, 314 (1999). In deciding whether new and material evidence has been submitted, the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The Board will generally presume the credibility of the evidence in determining whether evidence is new and material. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). If it is determined that new and material evidence has been submitted, the claim must be reopened. VA may then proceed to evaluate the merits of the claim on the basis of all evidence of record, but only after ensuring that the duty to assist the appellant in developing the facts necessary for the claim have been satisfied. See Elkins v. West, 12 Vet. App. 209 (1999). 1. New and material evidence has been received sufficient to reopen the previously denied claim of entitlement to service connection for a right knee condition. The record reflects that the Veteran's claim of entitlement to service connection for a right knee condition was denied in a July 1994 rating decision because there was no evidence of a current right knee condition. The Veteran did not appeal the decision and accordingly that decision because final. 38 C.F.R § 20.1103. The evidence received since the last final denial consists solely of VA treatment records noting complaints of right knee pain and a diagnosis of right knee osteoarthritis. See Las Vegas VA Healthcare System (VAHCS) records, received August 2014, August 2016, March 2017, and January 2018 in CAPRI. The Board finds this evidence to be new as it was not previously of record. Further, the Board finds this evidence to be material as it concerns an unestablished fact, a current disability. Given that there is new and material evidence, the claim is reopened. Notably, the claim requires further development, which is addressed in the remand section below. Service Connection Establishing service connection on a "direct" basis generally requires medical, or in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a link between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Additionally, certain chronic diseases may be presumed related to service, absent an intercurrent cause, if: they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. § 1101, 1110, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). The determination as to whether the requirements for service connection are met is based on an analysis of all evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). 2. Entitlement to service connection for residuals of right fifth finger fracture and surgical repair is granted. Factual Background. The Veteran's service treatment records (STRs) indicate that, in June 1991, he was treated for an open dislocation of the right small finger proximal interphalangeal joint. The condition was treated with surgical repair, during which disruption of the volar plate and radial collateral ligament were noted. See STR-Medical, received July 2014 and January 2018. The Veteran's VA treatment records are silent with respect to complaints, treatment, or diagnoses involving the right little finger. See Las Vegas VAHCS records. In April 2015, the Veteran underwent a VA examination in which the examiner noted a diagnosis of right finger strain. The examiner also noted that there was insufficient evidence to suggest the Veteran had a previous surgery. Ultimately, the examiner opined that the Veteran's right finger condition was less likely than not related to his active duty service. In support of this opinion, the examiner states that was insufficient evidence to suggest that a right pinkie condition was incurred during service or to establish chronicity for an ongoing condition since service. See April 2015 VA Hand and Finger Conditions Disability Benefits Questionnaire (DBQ). In February 2017, the Veteran underwent a VA examination in which the examiner noted diagnosis of mild angulation, mild bowing deformity, and shortening of the fifth metacarpal, as well as a surgical repair of the right fifth finger in 1992. The examiner also noted that x-rays revealed a chronic appearing healed deformity of the fifth metacarpal, which the examiner stated was consistent with the sprain caused by the 1992 injury. Ultimately, the examiner opined that the Veteran's diagnosed right little finger condition was less likely than not related to his active duty service. In support of this opinion, the examiner acknowledged in-service treatment for a right little finger injury but stated that no permanent residual or chronic disability was shown by the STRs or demonstrated by evidence following service. See February 2017 VA Hand and Finger Conditions DBQ; February 2017 VA Medical Opinion DBQ. In May 2018, a VA opinion was obtained, in which the examiner opined that the Veteran's right fifth finger condition was at least as likely as not related to his active duty service. In support of this opinion, the examiner noted that the Veteran's STRs revealed surgical treatment for an open dislocation of the right small proximal interphalangeal joint with disruption of the volar plate and radial collateral ligament and that a February 2017 x-ray noted a fracture deformity of the right fifth digit. See March 2018 VA Medical Opinion DBQ. Analysis. The Veteran is seeking service connection for a right little finger condition. The Veteran's post-service medical records reflect that the Veteran has current diagnoses of mild angulation, mild bowing deformity, and shortening of the fifth metacarpal, and x-rays have revealed a chronic appearing healed deformity of the fifth metacarpal. See February 2017 VA Hand and Finger Conditions DBQ. Further, the Veteran's STRs show that, in June 1991, he suffered an open dislocation of the right small finger proximal interphalangeal joint which was treated with surgical repair, during which disruption of the volar plate and radial collateral ligament were noted. See STR-Medical. Accordingly, the first two elements of service connection have been met. With respect to the third element of service connection, a medical nexus, there are varying opinions. Weighing against a medical nexus are VA opinions, dated April 2015 and February 2017. However, for the reasons discussed below, the Board finds these opinions to be inadequate for adjudication purposes. In April 2015, the Veteran underwent a VA examination in which the examiner noted a diagnosis of right finger strain. The examiner also noted that there was insufficient evidence to suggest the Veteran had a previous surgery. Ultimately, the examiner opined that the Veteran's right finger condition was less likely than not related to his active duty service. In support of this opinion, the examiner states that was insufficient evidence to suggest that a right pinkie condition was incurred during service or to establish chronicity for an ongoing condition since service. See April 2015 VA Hand and Finger Conditions DBQ. However, as noted above, the Veteran's STRs reveal that, in June 1991, an open dislocation of the right small finger proximal interphalangeal joint was treated with surgical repair. See STR-Medical. As such, the April 2015 opinion appears to be based, in part, on an inaccurate factual premise and, therefore, is inadequate. See Reonal v. Brown, 5 Vet. App. 458 (1993). In February 2017, the Veteran underwent a VA examination in which the examiner noted diagnosis of mild angulation, mild bowing deformity, and shortening of the fifth metacarpal, as well as a surgical repair of the right fifth finger in 1992. The examiner also noted that x-rays revealed a chronic appearing healed deformity of the fifth metacarpal, which the examiner stated was consistent with the sprain caused by the 1992 injury. Ultimately, the examiner opined that the Veteran's diagnosed right little finger condition was less likely than not related to his active duty service. In support of this opinion, the examiner acknowledged in-service treatment for a right little finger injury but stated that no permanent residual or chronic disability was shown by the STRs or demonstrated by evidence following service. See February 2017 VA Hand and Finger Conditions DBQ; February 2017 VA Medical Opinion DBQ. The Board finds the February 2017 examiner's rationale to be internally inconsistent with their finding that the Veteran's deformity of the fifth metacarpal was consistent with his in-service injury. Moreover, the February 2017 examiner appears to characterize the Veteran's June 1991 right little finger fracture as a strain, and that it was sustained in 1992. As such, the February 2017 opinion appears to be based, in part, on an inaccurate factual premise and, therefore, is inadequate. See Reonal v. Brown, supra. Weighing in favor of a medical nexus is a May 2018 VA opinion, in which the examiner opined that the Veteran's right fifth finger condition was at least as likely as not related to his active duty service. In support of this opinion, the examiner noted that the Veteran's STRs revealed surgical treatment for an open dislocation of the right small proximal interphalangeal joint with disruption of the volar plate and radial collateral ligament and that a February 2017 x-ray noted a fracture deformity of the right fifth digit. See March 2018 VA Medical Opinion DBQ. Additionally, though the February 2017 examiner ultimately concluded that the Veteran's current right little condition was less likely than not related to his active duty service, and though the Board has found the February 2017 examination to be inadequate, the Board notes that the February 2017 examiner found the Veteran's deformity of the right little finger to be consistent with his in-service injury. See February 2017 VA Hand and Finger Conditions DBQ. Considering the foregoing, the Board finds that the preponderance of the evidence supports the finding that the Veteran's right little finger conditions are related to his active duty service, in that such are residuals of his in-service right little finger fracture and surgical repair. As such, the claim of entitlement to service connection for residuals of right little finger fracture and surgical repair is granted. REASONS FOR REMAND Entitlement to service connection for a right knee condition is remanded. The Board regrets the delay associated with this remand. However, based on a review of the evidence of record, the Board finds that a remand is necessary to allow the AOJ to conduct additional development. First, a remand is necessary as the evidence indicates that VA records have not been associated with the claims file. Specifically, the record indicates that the Veteran receives treatment within the Las Vegas VAHCS. However, no records relating to such treatment after December 2017 have been associated with the claims file. See Las Vegas VAHCS records. As such, a remand is necessary to ensure that all relevant VA treatment records have been obtained and associated with the electronic claims file. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c); Bell v. Derwinski, 2 Vet. App. 611 (1992). Second, a remand is necessary to provide the Veteran with a VA examination to determine the nature and etiology of his claimed right knee condition. A medical examination is necessary when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing an in-service event, injury, or disease, and (3) an indication that the disability or symptoms may be associated with service, but (4) insufficient medical evidence of record for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see also 38 U.S.C. § 5103A(d)(2). Here, the Veteran's treatment records reveal complaints of right knee pain and a diagnosis of right knee osteoarthritis. See Las Vegas VAHCS records. Additionally, the Veteran's STRs reveal an April 1993 right knee injury and reports of intermittent right knee pain on his separation exam. See STR-Medical. However, there is no adequate medical opinion regarding the etiology of the Veteran's right knee condition. Accordingly, the Board finds that the McLendon requirements are met and the Veteran should be provided a VA examination to determine the etiology of his claimed right knee condition. Accordingly, the matter is REMANDED for the following action: 1. With the assistance of the Veteran's representative as appropriate, verify the Veteran's current mailing address. All requests and responses in this regard must be documented in the electronic claims file. 2. With the Veteran's assistance as appropriate, obtain and associate with the electronic claims file any pertinent medical records, whether VA or private, including records relating to treatment with Las Vegas VAHCS from December 2017 to current. Pursuant to 38 C.F.R. § 3.159(e), any efforts to secure these records MUST be documented in the electronic claims file, and the Veteran MUST be informed if any of these records are unable to be secured. 3. After completing the above, and any additional development warranted by the record, obtain an opinion from an appropriate clinician regarding the nature and etiology of the Veteran's right knee condition. The entire claims file must be provided to and reviewed by the examiner. If the examiner determines it to be necessary, an examination should be scheduled and any indicated tests, studies, or evaluations should be performed. The examiner is asked to: (a.) Obtain the Veteran's detailed lay history, including onset and progression of symptomatology and employment. (b.) For each diagnosed right knee condition, opine as to whether it is at least as likely as not (i.e. a 50 percent or greater probability) that such condition had its onset during, or is otherwise related to, the Veteran's active duty service. (c.) In formulating the requested opinions, the examiner is instructed to consider and explicitly address: a. The Veteran's lay history; and b. Reports of knee pain documented in the Veteran's service treatment records. The term at least as likely as not does not mean within the realm of medical possibility. Rather, it means that the weight of the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion (e.g., etiology) as it is to find against the conclusion. Any opinion expressed by the examiner should be accompanied by a complete rationale. If medical literature is relied upon in rendering a determination, the examiner should identify and specifically cite each reference material utilized. If the examiner is unable to offer an opinion without resort to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. The examiner is reminded that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinions. The examiner is further reminded that the mere absence of in-service evidence of a particular condition as the sole basis for forming a negative nexus opinion, without additional explanation, will not be adequate. 4. The AOJ must review the claims file and ensure that the foregoing development action has been completed in full. If any development is incomplete, appropriate corrective action must be implemented. If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. K. Anderson Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. T. Martin III, 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.