Citation Nr: 19164366 Decision Date: 08/20/19 Archive Date: 08/20/19 DOCKET NO. 16-32 718 DATE: August 20, 2019 ORDER New and material evidence having been submitted, the claim of entitlement to service connection for right upper extremity carpal tunnel syndrome is reopened; to this extent only, the appeal is granted. New and material evidence having been submitted, the claim of entitlement to service connection for left upper extremity carpal tunnel syndrome is reopened; to this extent only, the appeal is granted. REMANDED Entitlement to service connection for right upper extremity peripheral neuropathy is remanded. Entitlement to service connection for left upper extremity peripheral neuropathy is remanded. FINDING OF FACT 1. Service connection for right and left upper extremity carpal tunnel syndrome was denied in a July 2008 rating decision in part on the basis that there was no current diagnosis. 2. The Veteran did not file a notice of disagreement for the July 2008 rating decision, and that decision became final. 3. Evidence received since the January 2008 rating decision relates to unestablished facts necessary to substantiate the service connection claims for right upper extremity carpal tunnel syndrome and left upper extremity carpal tunnel syndrome. CONCLUSION OF LAW 1. New and material evidence has been received, and the Veteran’s claim for service connection for right upper extremity carpal tunnel syndrome is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). 2. New and material evidence has been received, and the Veteran’s claim for service connection for left upper extremity carpal tunnel syndrome is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1978 to July 1982, from November 1983 to January 1990, and from June 2006 to February 2008. This matter comes before the Board of Veterans’ Appeals (Board) from an October 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office in Houston, Texas. In May 2019, the Veteran testified before the undersigned Veterans Law Judge via videoconference. A transcript of that hearing is of record. The Board notes that the issue on appeal was characterized as entitlement to service connection for right upper extremity carpal tunnel and entitlement to service connection for left upper extremity carpal tunnel. At the May 2019 Board hearing the Veterans Law Judge broadened the issue to cover any current diagnosis of a disability of the Veteran’s upper extremities. New and Material Evidence Service connection for right and left upper extremity carpal tunnel syndrome was initially denied in a July 2008 rating decision. The RO found that service treatment records did not show treatment or a diagnosis for either condition. A claim which has been finally denied may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c) (2012). The exception to this rule is 38 U.S.C. § 5108 (2012), 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. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2017). In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). The evidence received since the July 2008 rating decision includes medical evidence showing a diagnosis of cubital tunnel syndrome and testimony from the Veteran’s May 2019 Board hearing. The evidence is new as it was not previously considered and material as it pertains to an unestablished fact of the claim, i.e., evidence of a current disability; therefore, raising a reasonable possibility of substantiating the claim. See Shade v. Shinseki, 24 Vet. App. 110 (2010). New and material evidence having been submitted, reopening of the previously denied claim is appropriate REASONS FOR REMAND 1. Right Upper Extremity Peripheral Neuropathy, Left Upper Extremity Peripheral Neuropathy As the Veteran’s medical records establish diagnoses or persistent symptoms of a right and left upper extremity peripheral neuropathy condition and there is an indication, through assertions and testimony of the Veteran, that the disabilities may be related to service, the Board finds that a medical examination with an opinion is necessary to decide the claim. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 70 (2006). Specifically, a remand is required to afford the Veteran VA examinations to determine the nature and etiology of any right and left upper extremity peripheral neuropathy, to include left and right cubital tunnel syndrome. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the nature and etiology of any currently diagnosed left and right upper extremity peripheral neuropathy, to include left and right cubital tunnel syndrome. The examiner should review the claims folder and note such review in the examination report. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s diagnosed left and right upper extremity peripheral neuropathy, to include left and right cubital tunnel syndrome, had its onset or is otherwise related to the Veteran’s military service. The examiner should consider all evidence, including lay statements, medical records, and other medical opinions of record. Any opinions offered should be accompanied by a clear rationale consistent with the evidence of record. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Daniels, 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.