Citation Nr: 18132342
Decision Date: 09/06/18	Archive Date: 09/06/18

DOCKET NO. 16-06 107
DATE:	September 6, 2018
ORDER
New and material evidence having been received, the claim of entitlement to service connection for a right elbow disability is reopened.  To that extent only, the appeal is granted.  
REMANDED
The claim of entitlement to service connection for a right elbow disability is remanded for additional development.  
FINDINGS OF FACT
1. An unappealed November 2008 rating decision denied entitlement to service connection for a right elbow disability.  
2. The evidence received since the final November 2008 rating decision is not cumulative or redundant of the evidence of record, does relate to an unestablished fact, and does raise a reasonable possibility of substantiating the Veteran’s claim of entitlement to service connection for a right elbow disability.  
CONCLUSIONS OF LAW
1. The November 2008 rating decision denying entitlement to service connection for a right elbow disability is final.  38 U.S.C. § 7105; 38 C.F.R. § 20.1103.  
2. New and material evidence has been received; the claim for service connection for a right elbow disability is reopened.  38 U.S.C. §§ 5107, 5108, 7105; 38 C.F.R. § 3.156.  
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran had honorable active duty service with the United States Army from August 1969 to February 1971.  The Veteran received the Vietnam Campaign Medal and the Vietnam Service Medal, among other commendations.  
The Board of Veterans’ Appeals (Board) notes that the Veteran’s VA Form 9 (substantive appeal) is missing from the record.  However, the Veterans Appeals Control Locator System (VACOLS) lists the receipt of the VA Form 9 as February 5, 2016, which was within 60 days of the mailing of the statement of the case (SOC) on December 8, 2015.  The Board notes that the Veteran filed a VA Form 21-4138 on February 5, 2016, requesting additional time to submit evidence in support of his claim for a right elbow disability.  The local Regional Office (RO) has treated the VA Form 21-4138 as the equivalent of a VA Form 9.  Therefore, although a VA Form 9 stamped as received on that date is not found in the claims file, the Board concludes that the equivalent of one was received by VA and that the appeal is properly before the Board.  See Percy v. Shinseki, 23 Vet. App. 37 (2009) (stating that “[i]f VA treats an appeal as if it is timely filed, a veteran is entitled to expect that VA means what it says”).  
The Board further notes that as the VA Form 21-4138 was treated as the Veteran’s VA Form 9, it is unclear as to whether the Veteran wished for a hearing before the Board.  While there is nothing in the record to suggest that the Veteran requested a hearing, and VACOLS does not otherwise reflect a hearing request, it is possible that the Veteran could have requested a Board hearing had he filed a VA Form 9, which specifically asks the Veteran whether he wishes for a Board hearing, instead of a document treated as its equivalent.  
The Board notes that as the claim for service connection for a right elbow disability is remanded herein for another VA examination and readjudication of the claim, it is deemed unnecessary to seek clarification as to whether the Veteran desires a hearing before the Board, and if so, the type of hearing desired.  If the Agency of Original Jurisdiction (AOJ) again denies service connection for the Veteran’s right elbow disability on remand, the Veteran may request a Board hearing at that time, if he in fact wishes to do so.  
In addition, the Board notes that new evidence, including VA treatment records, has been associated with the claims file since the most recent SOC in December 2015.  However, as the Board’s decision herein is to reopen the claim of entitlement to service connection for a right elbow disability and remand the claim for further development, there is no prejudice in proceeding with adjudication of the new and material issue at this time.  
The Board also notes that an April 2015 hearing was held at the RO before a Decision Review Officer (DRO).  However, a copy of the April 2015 DRO hearing transcript has not been associated with the electronic claims file.  This should be accomplished upon remand as indicated below.  
As a final matter, the record reflects that prior to his current representation, the Veteran was represented by Attorney Michael F. Hacker.  VA received a signed VA Form 21-22 in February 2017, changing representation from Attorney Hacker to the Disabled American Veterans.  


New and Material Evidence
Governing regulations provide that an appeal consists of a timely filed notice of disagreement in writing and, after a statement of the case has been furnished, a timely filed substantive appeal.  38 C.F.R. § 20.200.  Rating actions from which an appeal is not timely perfected become final.  38 U.S.C. § 7105; 38 C.F.R. § 20.1103.  
A final decision cannot be reopened unless new and material evidence is presented.  38 U.S.C. § 5108.  The Secretary must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to that claim.  Knightly v. Brown, 6 Vet. App. 200 (1994).  
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 it must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a).  
The United States Court of Appeals for Veterans Claims (Court) has emphasized that the final sentence of 38 C.F.R. § 3.156(a), especially the phrase “raise[s] a reasonable possibility of substantiating the claim,” does not create a third element or separate determination in the reopening process, but is a component of the question of what is new and material evidence.  See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010) (noting that 38 U.S.C. § 5108 requires only new and material evidence to reopen).  
Shade further holds that 38 C.F.R. § 3.156 “suggests a standard that would require reopening if newly submitted evidence, combined with VA assistance and considering the other evidence of record, raises a reasonable possibility of substantiating the claim[.]”  Id.  Further, the Board should not focus solely on whether the evidence remedies the principal reason for denial in the last prior decision, and regulations do not require new and material evidence as to each previously unproven element of a claim.  Id.  Rather, the Board should focus on whether the evidence, taken together, could at least trigger the duty to assist by providing a medical opinion.  Id.  
The Court has elaborated on what constitutes “new and material evidence.”  New evidence is not that which is cumulative of other evidence already present in the record.  In determining whether new and material evidence has been submitted, the Board must consider the specific reasons for the prior denial.  Evans v. Brown, 9 Vet. App. 273, 283 (1996).  See Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998).  Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record.  Evans v. Brown, 9 Vet. App. at 273.  
For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed.  Justus v. Principi, 3 Vet. App. 510, 513 (1992).  
The Veteran seeks to reopen his claim of entitlement to service connection for a right elbow disability.  
In a November 2008 rating decision, the RO denied entitlement to service connection for a right elbow disability, as no chronic right elbow disability was noted in service and there was no credible evidence of a chronic disability within one year of service separation.  The Veteran was notified of that decision and his appellate rights.  The Veteran did not appeal this decision or submit additional evidence within one year.  Thus, the November 2008 decision became final.  See 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156(b), 20.1103.  In August 2012, the Veteran filed a request to reopen his claim for service connection for a right elbow disability.  
The evidence before VA at the time of the November 2008 rating decision consisted of the Veteran’s service treatment records and the Veteran’s lay assertions.  
The evidence associated with the claims file relating to a right elbow disability following the November 2008 rating decision includes VA treatment records and additional lay assertions of the Veteran.  In addition, VA conducted an examination of the right elbow in September 2012.  
The Board finds that this evidence is new, as it was not previously of record, and tends to relate to a previously unestablished fact necessary to substantiate the underlying claim of service connection.  Furthermore, this evidence is presumed credible for the purpose of reopening the claim.  Consequently, the claim of entitlement to service connection for a right elbow disability is reopened.  
REASONS FOR REMAND
Although further delay is regrettable, the Board finds that a remand is necessary in this case to ensure that due process is followed and that there is a complete record upon which to decide the Veteran’s claim so that he is afforded every possible consideration.  38 U.S.C. § 5103A; 38 C.F.R. § 3.159.  
Since the December 2015 SOC, new VA treatment records have been associated with the claims file; however, they have not been reviewed by the AOJ.  A supplemental statement of the case (SSOC) must be furnished to the claimant when additional pertinent evidence is received after a SOC or the most recent SSOC has been issued.  38 U.S.C. § 7105; 38 C.F.R. § 19.31.  
The Board recognizes that, although the Veteran’s substantive appeal was received after February 2, 2013, the automatic waiver provision does not apply because this additional evidence was obtained by VA and was not submitted by the Veteran.  See Honoring America’s Veterans and Caring for Camp Lejeune Families Act of 2012, Public Law No. 112-154, 126 Stat. 1165 (amending 38 U.S.C. § 7105 to provide that if new evidence is submitted with or after a substantive appeal received on or after February 2, 2013, then it is subject to initial review by the Board unless the Veteran explicitly requests agency of original jurisdiction (AOJ) consideration).  As noted above, this provision only applies to evidence submitted by the Veteran.  Therefore, the issue must be remanded to allow for AOJ consideration of the VA treatment records.  
In addition, the record reflects that the Veteran was afforded a VA examination for his claimed right elbow disability in September 2012.  While the Veteran was afforded a VA examination for his claimed right elbow disability, because the VA medical opinion associated with this examination did not consider all of the Veteran’s medical records associated with the Veteran’s claims file after the examination, the opinion was therefore based on incomplete medical records; thus, the opinion is of limited probative value.  See Shipwash v. Brown, 8 Vet. App. 218, 222 (1995); Flash v. Brown, 8 Vet. App. 332, 339-340 (1995) (regarding the duty of VA to provide medical examinations conducted by medical professionals with full access to and review of a veteran’s claims folder).  Therefore, the Board finds that a new VA examination of the right elbow in consideration of all of the pertinent medical evidence of record is warranted.  
In addition, as noted above, the Veteran was afforded an April 2015 DRO hearing at the RO.  However, a copy of the April 2015 DRO hearing transcript has not been associated with the electronic claims file.  Therefore, a remand is warranted to obtain a copy of the April 2015 DRO hearing transcript and associate it with the claims file.  
Finally, on remand, the AOJ should make appropriate efforts to ensure that all pertinent private treatment records and any updated VA records are associated with the claims file.  



The matter is REMANDED for the following action:
1. Identify and obtain any outstanding VA and private treatment records that are not already associated with the claims file.  If any record identified cannot be obtained, the Veteran and his representative should be notified of this in writing, to include all efforts taken by VA to attempt to obtain any such record.  The Veteran should also be offered the option to provide any such record himself.  
2. Obtain and associate with the electronic claims file a copy of the April 2015 DRO hearing transcript.  
3. After obtaining any outstanding records, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any right elbow disability.  The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease.  
The examiner should address the Veteran’s reports of pain and opine on whether this reported pain in fact results in actual functional impairment.  
A complete rationale must be provided for all opinions offered.  If an opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what additional evidence, if any, would allow for a more definitive opinion.  
4.  After completing all indicated development, the Veteran’s claim should be readjudicated based on the entirety of the evidence.  If the benefit sought on appeal is not granted, the Veteran and his representative should be provided a Supplemental Statement of the Case (SSOC) and afforded the requisite opportunity to respond before the case is remanded to the Board.  For the issue on appeal, the SSOC should consider any new evidence received since the SOC issued in December 2015.  

 
B. MULLINS
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Y. MacDonald, Associate Counsel 

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