Citation Nr: 22008049 Decision Date: 02/11/22 Archive Date: 02/11/22 DOCKET NO. 15-23 928 DATE: February 11, 2022 ORDER New and material evidence having been received, the claim of entitlement to service connection for left arm numbness is reopened; to this extent only, the appeal is granted. REMANDED Entitlement to service connection for left arm numbness is remanded. Entitlement to service connection for left elbow strain is remanded. Entitlement to service connection for left hand numbness is remanded. FINDINGS OF FACT 1. The Veteran did not submit a Notice of Disagreement (NOD) or Substantive Appeal (VA Form 9 or equivalent statement) in response to a March 2010 rating decision previously considering and denying his claim of entitlement to service connection for left arm numbness. 2. Additional evidence since submitted or otherwise obtained, however, when considered with the record, as a whole, is not cumulative and redundant of the evidence of record at the time of the last prior final and binding denial of this claim and raises a reasonable possibility of substantiating it. CONCLUSIONS OF LAW 1. The March 2010 rating decision that earlier considered and denied the Veteran's claim for service connection for left arm numbness is final and binding based on the evidence then of record. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.201, 20.302, 20.1103 (2018). 2. But there is new and material evidence since that decision to reopen this claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1987 to February 2007. In October 2021, the Veteran testified in support of these claims during a "virtual" teleconference hearing before the undersigned Veterans Law Judge of the Board. A transcript of the proceeding is of record. 1. Because there is new and material evidence, the claim of entitlement to service connection for left arm numbness is reopened; to this extent only, the appeal is granted Generally, a claim that has been denied may not thereafter be reopened and allowed based on the same record. 38 U.S.C. §§ 7104, 7105. However, according to 38 U.S.C. § 5108, if new and material evidence is presented or secured with respect to a claim that has been disallowed, the VA Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). 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. Id. In determining whether evidence is "new and material," the credibility of the new evidence must be presumed unless inherently incredible (patently untrue) or beyond the competency of the person making the assertion. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); Justus v. Principi, 3 Vet. App. 510, 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). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly received evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA Secretary's duty to assist or through consideration of an alternative theory of entitlement. Shade, 24 Vet. App. at 118. Regardless of the local regional office's (RO's) determination as to whether new and material evidence has been received to reopen the claim, the Board must address this issue preliminarily, so in the first instance, because this initial determination affects the Board's jurisdiction to reach the underlying claim to adjudicate it de novo. See Woehlaert v. Nicholson, 21 Vet. App. 456, 460-61 (2007) (citing Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996)). If the Board determines that the evidence submitted is both new and material, it must reopen the claim and readjudicate it in light of all the evidence. Justus, 3 Vet. App. at 512. But once the claim is reopened, the presumption of credibility regarding this evidence no longer applies. Id. at 513. If, on the other hand, the Board determines there is not the required new and material evidence to reopen a claim, that is where the analysis ends because further consideration of the claim is neither required nor permitted. See Barnett at 1384; see also Butler v. Brown, 9 Vet. App. 167, 171 (1996). In this case, the Board finds that the required new and material evidence has been submitted since the last final and binding denial of the claim to permit reopening it. 38 C.F.R. § 3.156(a). This claim earlier was denied in a March 2010 rating decision because the evidence then of record failed to show this claimed disability was either incurred during or caused by the Veteran's military service. But the Veteran more recently testified during his October 2021 hearing before this Board that, while in service, he was involved in a serious motor vehicle accident on a major freeway that involved multiple car pileups. See October 2021 Board Virtual Hearing Transcript. This additional evidence is new and material to the claim since not before the local RO when it previously considered and denied the claim, and this evidence is not cumulative or redundant of the evidence then of record. This additional evidence also raises a reasonable possibility of substantiating the claim since, as mentioned, the Court has held that the law should be interpreted to enable reopening of a claim rather than to preclude it. See Shade, 24 Vet. App. at 117. Therefore, in this sense this evidence also is material. Additionally, the Board points out the Veteran alternatively argues that his left arm numbness is from overcompensating for his already determined to be service-connected cervical spine degenerative disc disease (DDD) and degenerative arthritis and the associated radiculopathy of both upper extremities. See October 2021 Board Virtual Hearing Transcript. Essentially, then, he has raised a new theory of entitlement that being secondary service connection. See 38 C.F.R. § 3.310. A new theory of entitlement does not, on its face, constitute new and material evidence unless evidence supporting the new theory of entitlement is, itself, new and material. Boggs v. Peake, 520 F.3d 1330, 1336-37 (Fed. Cir. 2008); Ashford v. Brown, 10 Vet. App. 120, 123 (1997). However, given the "low" threshold espoused in Shade, the Board finds this, too, is new and material evidence in this instance. Accordingly, the claim for service connection for left arm numbness must be reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. This claim requires further development, however, before being re-adjudicated on its underlying merits, meaning on a de novo basis, so the Board is remanding it back to the Agency of Original Jurisdiction (AOJ), i.e., back to the RO. REASONS FOR REMAND 1. Entitlement to service connection for left elbow strain is remanded. The Veteran has not been afforded a VA examination in response to his claim for service connection for left elbow strain. VA's duty to assist includes providing a medical examination or obtaining an opinion when needed to decide a claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The Veteran testified during his October 2021 hearing before this Board that, during his service, he was involved in a serious motor vehicle accident on a major freeway that involved multiple car pileups. See October 2021 Board Virtual Hearing Transcript. In the alternative, he asserts his left arm numbness is from overcompensating for his service-connected cervical spine disability and associated upper extremity radiculopathy. Id; see also September 2003 service treatment record (STR). As such, the Board finds it necessary to have him undergo a VA examination for a medical nexus opinion to assist in determining the etiology of this claimed condition, especially insofar as its purported relationship with his military service either directly owing the motor vehicle accident mentioned or secondarily by way of his service-connected disabilities. McLendon, 20 Vet. App. at 79. 2. Entitlement to service connection for left arm numbness is remanded. 3. Entitlement to service connection for left hand numbness is remanded. The Veteran already had a VA examination in May 2014 to determine the nature and etiology of the numbness in his left arm and left hand, but the Board finds the examination inadequate for adjudication purposes. Thus, more medical comment is needed before deciding the appeal of these remaining claims. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007). Specifically, the evaluating VA clinician failed to review the Veteran's claims file and, consequently, did not consider potentially relevant electromyography (EMG) findings, post-service VA treatment records, or STRs. And, while review of the claims file is not necessarily required or determinative of the probative value of a medical opinion since, as an example, the Veteran may be a credible historian in recounting his relevant history, it has significance when, as here, the examiner neglected to consider potentially relevant evidence that may affect the basis of the opinion or tend to undermine it. See Kowalski v. Nicholson, 19 Vet. App. 171 (2005); Coburn v. Nicholson, 19 Vet. App. 427 (2006). So additional medical comment also is needed concerning these other claims. Accordingly, these claims are REMANDED for the following action: Provide the Veteran a VA examination with the appropriate clinician to determine the nature and etiology of his left elbow strain and numbness in his left arm and hand, especially in terms of whether directly related or attributable to his military service or secondary to his service-connected disabilities. A copy of this remand and all relevant medical and other records must be made available to the examiner. The examiner must review the pertinent evidence, including the Veteran's lay assertions. The appropriate Disability Benefits Questionnaire (DBQ) must be used or a report allowing for provision of all necessary information. Based on review of the claims file and the Veteran's statements regarding the development and treatment of his disability, the examiner is asked to answer the following questions: (a.) List all diagnoses referable to the Veteran's left elbow, left arm, and left hand. (b.) Is it at least as likely as not (a 50 percent probability or greater) the Veteran's claimed left elbow strain, left arm numbness, and/or left hand numbness are caused OR aggravated by any service-connected disability including especially by his cervical spine DDD and degenerative arthritis and the associated radiculopathy of both upper extremities, as well as the other impairments referable to his right elbow and right wrist? This includes considering whether having to overcompensate for these service-connected disabilities cause OR aggravate the additionally claimed left elbow strain, left arm numbness, and/or left-hand numbness. If aggravation is found, please identify to the extent possible the baseline level of disability prior to the aggravation and determine what degree of additional impairment is attributable to aggravation of the Veteran's left elbow strain, left arm numbness, and/or left-hand numbness by his service-connected disability/ies. (c.) Alternatively, is it at least as likely as not (50 percent or greater probability) the Veteran's left elbow strain, left arm numbness, and/or left hand numbness are directly attributable to his service meaning began during his service from February 1987 to February 2007, or manifested to a compensable degree within a year of his discharge from service so by February 2008 (if involving arthritis), or are otherwise directly related or attributable to any disease, event, or injury during his service including especially the September 2003 motor vehicle accident (MVA)? Rationale for the opinions therefore is essential, regardless of whether favorable or unfavorable to the claims, preferably citing to findings or evidence in the file supporting conclusions and/or accepted medical authority. The mere absence of treatment for these claimed disabilities in the Veteran's STRs cannot, alone, be reason for disassociating them from his service, especially in the secondary service connection context. This is a permissible consideration, however, at least as pertaining to direct incurrence of a condition in service (though not also secondary service connection), provided the examiner also explains why it is reasonable to have expectation of documentation of the condition in the STRs or sooner than when indicated or diagnosed. The Veteran is competent to report his symptoms and history, and these reports must be acknowledged and considered in formulating responses. If the examiner rejects the Veteran's reports of symptomatology, a reason for doing so must be provided. KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mukherjee, Cameron B. 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.