Citation Nr: 0005326 Decision Date: 02/29/00 Archive Date: 03/07/00 DOCKET NO. 97-01 277 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for residuals of a right hand injury. REPRESENTATION Appellant represented by: Oklahoma Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL The appellant and his sister ATTORNEY FOR THE BOARD James A. Frost, Counsel INTRODUCTION The veteran served on active duty from February 1948 to July 1950. This appeal to the Board of Veterans' Appeals (Board) arises from a rating decision in November 1996 by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The Board notes that a rating decision in March 1994 denied entitlement to service connection for residuals of a right hand injury; the veteran was duly notified of the decision; he did not file a timely notice of disagreement and a timely substantive appeal, and the decision became final. In October 1996 and thereafter, the veteran submitted additional evidence in an attempt to reopen the claim; the RO found that the additional evidence was not new and material, and the current appeal ensued. FINDINGS OF FACT 1. A decision by the agency of original jurisdiction in March 1994 denied entitlement to service connection for residuals of a right hand injury. 2. Additional evidence presented or secured since March 1994 is so significant that it must be considered in order to fairly decide the merits of the claim. 3. There is no competent medical evidence of a nexus between a current right hand disability and the veteran's period of active service. CONCLUSIONS OF LAW 1. A rating decision in March 1994, which denied entitlement to service connection for residuals of a right hand injury, is final. 38 U.S.C.A. § 7105 (West 1991). 2. Additional evidence presented or secured since March 1994 is new and material, and the veteran's claim for service connection for residuals of a right hand injury is reopened. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (1999). 3. The claim of entitlement to service connection for residuals of a right hand injury is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection may be granted for disability resulting from injury or disease incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 1991). The law provides that, except as provided in § 5108, when a claim is disallowed by an agency of original jurisdiction, the claim may not thereafter be reopened and allowed and a claim based upon the same factual basis may not be considered. 38 U.S.C.A. § 7105. If new and material evidence is presented or secured with respect to a claim which has been disallowed, the claim shall be reopened and the former disposition of the claim shall be reviewed. 38 U.S.C.A. § 5108. "New and material evidence" means evidence not previously submitted to VA decision makers which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant of prior evidence and which, by itself, or in connection with evidence previously assembled, is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156. When a veteran seeks to reopen a final decision based on new and material evidence, a three-step analysis must be applied. See Elkins v. West, 12 Vet. App. 209, 214-5 (1999); Winters v. West, 12 Vet. App. 203, 206-7 (1999); Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). The first step is to determine whether new and material evidence has been received under 38 C.F.R. § 3.156(a). Second, if new and material evidence has been presented then, immediately upon reopening the veteran's claim, VA must determine whether the claim is well grounded under 38 U.S.C.A. § 5107(a). In making that determination, all of the evidence of record is to be considered and presumed to be credible. See Robinette v. Brown, 8 Vet. App. 69, 75-76 (1995). Third, if the claim is found to be well grounded, then the merits of the claim may be evaluated, after ensuring that the duty to assist under 38 U.S.C.A. § 5107(a) has been met. A well-grounded claim for service connection requires that three elements be satisfied. First, there must be competent evidence of a current disability, as established by a medical diagnosis; second, there must be competent evidence of an incurrence or aggravation of a disease or injury in service, as established by lay or medical evidence, as appropriate; and, third, there must be competent evidence of a nexus or relationship between the inservice injury or disease and the current disorder, as established by medical evidence or a medical opinion. See generally Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997). A service connection claim may also be well grounded, under 38 C.F.R. § 3.303(b), if evidence, regardless of its date, shows that a veteran had a chronic condition in service and still has such condition. Such evidence must be medical, unless it relates to a condition as to which, under the Court's case law, lay observation is competent. If a chronic condition in service and since service is not shown, the claim may still be well grounded on the basis of 38 C.F.R. § 3.303(b) if the condition is observed during service, continuity of symptomatology is demonstrated thereafter, and competent evidence relates a present disorder to that symptomatology. Savage v. Gober, 10 Vet. App. 488, 493 (1997). At the time of the prior final disallowance of the veteran's claim in March 1994, the evidence of record consisted of: The veteran's application for compensation or pension, on which he indicated that he was seeking service connection for a "hand condition"; a report in September 1991 by the National Personnel Records Center (NPRC) that the veteran's service medical records were not on file, and, if the service medical records were present at the NPRC in July 1973, they were destroyed in a fire; and a statement by the veteran, received in March 1992, that he was treated for injuries in 1972-1975 at Kaiser Permanente in Fontana, California, and in 1980-1983 at the VA Medical Center, West Los Angeles, California. The additional evidence presented or secured since March 1994 includes a daily sick report of the veteran's Army unit, which showed that he was taken sick on a day in November 1949, and returned to duty. This item of evidence is "new" but it is not "material," as it contains no information concerning the veteran's right hand. The additional evidence also includes testimony by the veteran and his sister at a personal hearing in April 1997. The veteran testified that: In service, he was pushed into a window, and glass cut the tendons of three fingers of his right hand; he had right hand surgery at Fort Bragg, North Carolina, Army Hospital, and he was hospitalized for about 30 days; after release from the hospital he reinjured his right hand in a parachute jump; for years he had had numbness, tingling, and loss of grip strength of the right hand; he received treatment for a right hand condition in early post service years, but did not have any records of such treatment. The veteran's sister testified that: Prior to service, the veteran had no problem with his right hand; when he came back from service, he had a scar on his right hand, and his family could tell that he had had right hand surgery; the veteran complained of right hand pain and not being able to lift; she was about 12 years old at that time. The Board finds that the testimony by the veteran and his sister is new and material, as it tends to prove that he did sustain an injury to the right hand during active service. The additional evidence also includes a report by the NPRC that there was no listing in indexes of hospital treatment of the veteran in 1949-1950 at the Fort Bragg Army Hospital. That evidence is, the Board finds, new but not material. The additional evidence also includes records from the VA Medical Center, West Los Angeles, California. At that facility in June 1992, the veteran complained of weakness and paresthesias of the last three fingers of the right hand. He gave a history of hand surgery in service. On examination, the right 5th finger was in partial permanent flexion; the 3rd, 4th, and 5th fingers of the right hand were weak; Tinel's sign was positive. The veteran was referred to a hand clinic, where the assessment was possible trigger finger, injected small and ring fingers. The Board finds that the June 1992 VA medical center records are new and material, as they show that the veteran has a current right hand disorder. In sum, the veteran has submitted evidence that he sustained an injury to his right hand in service, and that he currently has a right hand disability. Such evidence, which is new and material, is sufficient to reopen his claim for service connection for residuals of a right hand injury. 38 U.S.C.A. §§ 5108, 7105; 38 C.F.R. § 3.156(a). However, the veteran's claim is not well grounded, because only 2 of the 3 elements required for a well-grounded service connection claim have been satisfied. There is no competent medical evidence of a nexus between a current right hand disability and an injury in service. A chronic right hand disorder in service has not been demonstrated by medical evidence, and there is no competent medical evidence of a nexus between a current right hand disability and claimed continuous postservice symptomatology. The claim must therefore be denied at this time as not well grounded. 38 U.S.C.A. § 5107(a); 38 C.F.R. § 3.303(b), Savage. The veteran's statements do not serve to well ground his claim, because, as a layman, he is not qualified to offer an opinion on a question of medical causation. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-5 (1992). The Board is aware of no circumstances in this matter which would put VA on notice that relevant evidence may exist or could be obtained, which, if true, would make the claim for service connection for residuals of a right hand injury well grounded. See generally McKnight v. Gober, 131 F.3d 1483, 1484-5 (Fed. Cir. 1997). The Board views its discussion as sufficient to inform the veteran of the elements necessary to complete his application for service connection for residuals of a right hand injury. Robinette v. Brown, 8 Vet. App. 69, 77-78 (1995). ORDER New and material evidence having been submitted, a claim of entitlement to service connection for residuals of a right hand injury is reopened. A well-grounded claim not having been submitted, service connection for residuals of a right hand injury is denied. BRUCE KANNEE Member, Board of Veterans' Appeals