Citation Nr: 1829782	
Decision Date: 08/10/18    Archive Date: 08/17/18

DOCKET NO.  11-19 725	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Detroit, Michigan


THE ISSUES

1.  Whether new and material evidence has been received to reopen the Veteran's claim for service connection for a bilateral hip condition. 

2.  Whether new and material evidence has been received to reopen the Veteran's claim for service connection for a right hand/wrist condition. 

3.  Entitlement to service connection for a groin condition.

4.  Entitlement to service connection for peripheral neuropathy, bilateral upper extremities (claimed as carpal tunnel syndrome).

5.  Entitlement to service connection for peripheral neuropathy, bilateral lower extremities. 

REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

M. Zimmerman, Associate Counsel


INTRODUCTION

The Veteran served on active duty from November 1988 to November 1992 with additional service in the National Guard.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan.

A Board hearing was scheduled for the Veteran in November 2017 and notice was sent to the Veteran.  The Veteran failed to report for his scheduled hearing.  In January 2018 the Board sent a letter to the Veteran inquiring if he still desired a hearing.  The Board has received no response to this letter and the Veteran's hearing request is therefore considered to have been withdrawn.  See 38 C.F.R. § 20.704(d) (2017).

The issues of entitlement to service connection for peripheral neuropathy, bilateral upper extremities, and entitlement to service connection for peripheral neuropathy, bilateral lower extremities, are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  In a June 1993 rating decision, the Veteran's claim for service connection for a bilateral hip condition was denied.

2.  In a June 1993 rating decision, the Veteran's claim for service connection for a right hand/wrist condition was denied. 

3.  The Veteran filed a timely Notice of Disagreement (NOD) to both issues on the June 1993 rating decision, the RO issued a Statement of the Case (SOC), but the Veteran did not perfect his appeal.

4.  Since the June 1993 rating decision, the Veteran has not submitted evidence in support of his claim for service connection for a bilateral hip condition which is not cumulative or duplicative and had not previously been submitted to either the RO or the Board.

5.  Since the June 1993 rating decision, the Veteran has not submitted evidence in support of his claim for service connection for a right hand/wrist condition which is not cumulative or duplicative and had not previously been submitted to either the RO or the Board.

6.  The most probative evidence of record does not show that the Veteran has been diagnosed with any groin condition.


CONCLUSIONS OF LAW

1.  The June 1993 rating decision denying service connection for a bilateral hip condition is final.  38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§  20.302, 20.1103 (2017).

2.  The June 1993 rating decision denying service connection for a right hand/wrist condition is final.  38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§  20.302, 20.1103 (2017).

3.  New and material evidence has not been received to reopen the Veteran's claim for service connection for a bilateral hip condition.  38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017).

4.  New and material evidence has not been received to reopen the Veteran's claim for service connection for a right hand/wrist condition.  38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017).

5.  The Veteran does not have a groin condition that was incurred in or aggravated by active service.  38 U.S.C. §§ 1101, 1110, 1131 (2012); 38 C.F.R. §§ 3.303, 3.304 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Application to Reopen Claims

A previously denied claim may be reopened by the submission of new and material evidence.  38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017).  Evidence is new if it has not been previously submitted to agency decision makers.  38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (a) (2017).  Evidence is material if, either by itself or considered in conjunction with previous evidence of record, it relates to an unestablished fact necessary to substantiate the claim.  Id.  New and material evidence cannot be cumulative or 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. 

When determining whether a claim should be reopened, the credibility of the newly submitted evidence is to be presumed.  Fortuck v. Principi, 14 Vet. App. 173, 179-80 (2003);  Justus v. Principi, 3 Vet. App. 510 (1992).  Furthermore, in Shade v. Shinseki, 24 Vet. App. 110, 117 (2010), the United States Court of Appeals for Veterans Claims (Court) clarified that the phrase "raises a reasonable possibility of substantiating the claim" is meant to create a low threshold that enables, rather than precludes, reopening.  Specifically, the Court stated that reopening is required when the newly submitted evidence, combined with VA assistance and considered with the other evidence of record, raises a reasonable possibility of substantiating the claim.  Id.
A rating decision of June 1993 denied service connection for a bilateral hip condition and a right hand/wrist condition.  A timely NOD was filed and the RO issued an SOC dated December 1993.  As no substantive appeal or new evidence was filed within 60 days after the Statement of the Case was mailed, or during the remainder of the year after the rating decision was mailed, the rating decision became final.  38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§  20.302, 20.1103 (2017).

A.  Bilateral Hip Condition

At the time of the June 1993 rating decision denying service connection for a claimed bilateral hip condition the Veteran's medical records were silent for complaint, diagnosis, or treatment of any hip condition.  The Veteran told a March 1993 VA examiner that his hips had hurt since about 1989 or 1990 and that he had been told it was because he did a lot of running.  He told the examiner that his hips did not always hurt, but would start to hurt after walking or standing for 2 or more hours.  There was no pain associated with sitting.  During range of motion testing, the Veteran complained of pain on motion for abduction, adduction, and external rotation of his right hip and on flexion and adduction of his left hip.  X-rays showed no significant abnormality of either hip.  

Since that time, the Veteran's Service Treatment Records (STRs), private medical records, and lay statements have all been added to the claims file.  The STRs are silent for complaint, diagnosis, or treatment of a hip condition in service.  Private medical records mention symptoms of peripheral neuropathy in both legs, but do not specify any separate condition related to the hips.  The Veteran states that he mentioned several conditions, including his hips, when he separated from service.  His separation exam does have a box checked for a history of swollen or painful joints, but does not specify anything about hips.  There were specific comments added about his knee and back conditions.  The Veteran also stated that his back and knee disabilities caused his other conditions generally.  This statement, in light of the lack of any diagnosed hip condition before or after the June 1993 decision, is not sufficient to raise a reasonable possibility of substantiating this claim.  The Board therefore finds that no new and material evidence has been submitted to reopen the claim for service connection for a bilateral hip condition and the application to reopen this claim must be denied. 

B.  Right Hand/Wrist

At the time of the June 1993 rating decision denying service connection for a claimed bilateral hip condition the Veteran's medical records were silent for complaint, diagnosis, or treatment of any right hand or wrist condition.  The Veteran told a March 1993 medical examiner that he had not injured his hand in service, but that he had an unexplained instability of his right hand and wrist in service, often causing him to drop things.  He reported that this would be triggered by minor traumas to his hand.  He said this resolved on its own before he left service.  He also mentioned injuries to his right hand both before and after service.  The only symptom present on exam was slight difficulty flexing the middle finger of his right hand. 

Since that time, the Veteran's STRs, private medical records, and lay statements have all been added to the claims file.  The STRs are silent for complaint, diagnosis, or treatment of a right hand/wrist condition in service.  Private medical records mention symptoms of peripheral neuropathy in the upper extremities, but do not specify any separate condition related to the right hand or right wrist.  The Veteran states that he mentioned several conditions, including his right hand/wrist, when he separated from service.  His separation exam has the box checked for arthritis, rheumatism or bursitis but does not specify anything about his hand.  The box for upper extremities is checked "normal." The Veteran also stated that his back and knee disabilities caused his other conditions generally.  This statement, in light of the lack of any diagnosed right hand/wrist condition before or after the June 1993 decision, is not sufficient to raise a reasonable possibility of substantiating this claim.  The Board therefore finds that no new and material evidence has been submitted to reopen the claim for service connection for a right hand/wrist condition and the application to reopen this claim must be denied. 


II.  Service Connection 

A copy of the relevant laws and regulations governing the Veteran's claim was provided to him in the Statement of the Case dated June 2011.

A.  Groin

In order to grant service connection, the Board must be able to identify a current disability, or one that existed during the period on appeal, that is included in the Veteran's claim.  

The Veteran's STRs show one instance of pain in the left testicle, diagnosed as epidimitis and treated with medication.  The Veteran's separation exam is silent for any groin condition and the box for genitourinary system is checked "normal."  Post-service medical records are silent for complaint, diagnosis, or treatment of any groin condition.  The Veteran has stated that the left side of his groin area sometimes "twangs at certain movement."  There is no record indicating that he ever sought treatment or received a diagnosis for this complaint.  Because the balance of the evidence does not show that the Veteran has had a diagnosed groin condition at any time since service, his claim for service connection for a groin condition must be denied.   See Brammer v. Derwinski, 3 Vet. App. 223 (1992).


ORDER

1.  The application to reopen a previously denied claim for service connection for a bilateral hip condition is denied. 

2.  The application to reopen a previously denied claim for service connection for a right hand/wrist condition is denied. 

3.  Entitlement to service connection for a groin condition is denied. 


REMAND

Once VA has provided an examination, it is required to provide an adequate one, regardless of whether it was legally obligated to provide an examination in the first place.  Barr v. Nicholson, 21 Vet. App. 303 (2007).  

In the present case, the Board notes that the record contains a March 2011 VA opinion indicating, that it is unlikely that the Veteran's polyneuropathy of the bilateral upper and lower extremities is related to his service-connected low back condition.  The Board finds, however, that the opinion is inadequate as it does not address the issue of direct service connection.  An addendum opinion-based on full review of the record and supported by stated rationale-is needed to fairly resolve the appellant's claims.  See 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006).

Accordingly, the case is REMANDED for the following action:

1.  Obtain an addendum opinion from the examiner who authored the March 2011 VA examination report, if available.  Otherwise, provide the claims file to an appropriate medical profession to obtain an addendum opinion.  Whether or not a new examination of the Veteran is necessary is left to the discretion of the examiner.  If necessary to render an opinion, arrange to provide the Veteran with an appropriate examination to determine the nature and etiology of his neuropathy of the bilateral upper and lower extremities.  The examiner should address the following for each extremity:

A.  Identify any current neurological disability(ies) affecting that extremity.
B.  For each such disability identified, provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) the result of disease or injury incurred in or aggravated by service.

2.  Readjudicate the claims. 

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.    The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C. §§ 5109B, 7112 (2012).

______________________________________________
L. M. BARNARD
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

For More Information on Veterans Disability Compensation Benefits! Visit: DisableVeteran.org ~ A Non-Profit Non Governmental Agency


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