Citation Nr: 20049919 Decision Date: 07/27/20 Archive Date: 07/27/20 DOCKET NO. 15-37 621 DATE: July 27, 2020 ORDER The claim of service connection for a right-hand condition is reopened; to this limited extent, the appeal is granted. REMANDED Entitlement to service connection for a right-hand condition is remanded. FINDINGS OF FACT 1. In an unappealed July 2010 rating decision, the RO declined to reopen a previously denied claim of service connection for a right-hand condition on the basis that new and material evidence was not submitted. 2. Some evidence received since the June 2010 rating decision was not previously considered by agency decision makers; is not cumulative and redundant of evidence already of record; relates to an unestablished fact; and could raise a reasonable possibility of substantiating the claim were the claim to be reopened. 3. The Veteran is found to have participated in combat during service in Vietnam. CONCLUSION OF LAW The criteria to reopen the claim of entitlement to service connection for a right-hand condition have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from July 1967 to February 1969, to include service in Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2012 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). Application to Reopen Previously Denied Claims The Secretary must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. New evidence means existing evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156(a). 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 must raise a reasonable possibility of substantiating the claim. Id. The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied, but instead should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering VA’s duty to assist or through consideration of an alternative theory of entitlement. Shade, 24 Vet. App. at 118. Finally, for the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). 1. The claim of service connection for a right-hand condition is reopened; to this limited extent, the appeal is granted. Service connection for a residual of shrapnel wound to the hands, claimed as numbness, was originally denied in a January 2002 rating decision. Relevant VA medical records were received within one year of that rating decision, and in a March 2002 rating decision, the RO reconsidered the claim. Service connection was again denied on the basis that service treatment records did not show a hand injury and the evidence did not show a hand condition was incurred in or was related to service. The Veteran was notified of this decision and of his appellate rights via correspondence dated April 5, 2002. He did not initiate an appeal of this decision and it became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. New and material evidence was not received within a year of notice of the decision. 38 C.F.R. § 3.156(b). The Veteran sought to reopen service connection for a right-hand disability in February 2009. In a June 2010 rating decision, the RO declined to reopen the claim on the basis that new and material evidence was not submitted. The Veteran did not initiate an appeal after he was notified of the decision and of his appellate rights via correspondence dated June 11, 2010. Hence, it became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. New and material evidence was not received within a year of notice of the decision. 38 C.F.R. § 3.156(b). The Veteran submitted the current application to reopen this claim in January 2012. The RO initially declined to reopen the claim in the July 2012 rating decision currently on appeal citing a lack of new and material evidence. However, in the subsequent statement of the case issued in July 2015; the RO reopened the appeal upon finding new and material evidence was revived. The RO continued the denial of service connection on the merits. Notwithstanding previous determination by the RO, the Board must address whether new and material evidence has been received to reopen the claim. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). At the time of the last final rating decision issued in June 2010, the evidence included service treatment records, the Veteran’s DD Form 214, and post-service VA treatment records which contained the Veteran’s complaints of hand pain. Since the last final denial, the Veteran’s June 2020 brief was added to the file. In it, he raised a new theory of entitlement to service connection by contending that his right-hand condition is secondary to his service-connected diabetes mellitus. This theory of entitlement was not previously considered and could reasonably substantiate the claim were the claim to be reopened, and thus constitutes new and material evidence. See Shade, 24 Vet. App. at 118. Moreover, new VA treatment records, including a March 2015 record, reflect a current complaint of right-hand pain and numbness that was believed to be ‘carpal tunnel syndrome vs diabetic nephropathy.’ [The Board notes ‘neuropathy’ may have been misspelled as ‘nephropathy.’] This evidence relates to causal nexus- an unestablished fact necessary to substantiate the claim. For these reasons, the claim for service connection for a right-hand condition is reopened. This issue is further addressed in the remand section below. REASONS FOR REMAND 1. Entitlement to service connection for a right-hand condition is remanded. The Veteran seeks service connection for a right-hand condition which he contends was injured during combat service in Vietnam. Service treatment records are negative for complaints of, or treatment for a hand condition. The Veteran marked “no” for neuritis on his separation examination. The RO has conceded his combat exposure. The Board likewise finds that the Veteran participated in combat while in Vietnam. His DD Form 214 shows a military occupational specialty of 12B30, combat engineer. His personnel records reflect receipt of the Army Commendation Medal for ‘exceptionally meritorious service in the support of allied counterinsurgency operations in the Republic of Vietnam’ during the period of January 1968 to January 1969 while serving as a demolition specialist with Company B, 4th Engineer Battalion, 4th Infantry Division. As such, the Board must accept the Veteran’s lay assertions of in-service incurrence of injuries or disease incurred or aggravated in combat, to the extent they are consistent with the circumstances, conditions or hardships of such service. See 38 U.S.C.A. § 1154 (b);38 C.F.R § 3.304 (d). Regardless, the Veteran must still establish that a causal relationship exists between the present disability and the in-service injury or disease. See Reeves v. Shinseki, 682 F.3d 988, 999 (Fed. Cir. 2012). Post-service VA treatment records show the Veteran has long complained right hand pain and numbness which he, at times, related to a remote shrapnel injury in service. Of note, these records include a January 2002 right hand X-ray finding of a single small metallic foreign body in the soft tissue medial-palmar to the index metacarpal head; no bony abnormality is identified; joint spaces are normal. As noted, in his June 2020 appellate brief, the Veteran asserted that his right-hand numbness and pain could also be related to his service-connected diabetes mellitus. He noted there was a two-year period between the diagnosis of diabetes and the appearance of peripheral neuropathy in his lower extremities, which is also now service-connected. The Board observes that VA treatment notes, including a March 2015 record, reflect current findings of ‘carpal tunnel syndrome vs diabetic neuropathy.’ The Veteran previously underwent VA peripheral nerve examinations in March 2014 and January 2016, but no relevant upper extremity symptoms were noted. A remand for a medical opinion regarding the nature and etiology of the Veteran’s right-hand condition, to include whether it is related to his service-connected diabetes mellitus, is needed. The matters are REMANDED for the following action: Obtain an opinion from an appropriate clinician to determine the nature and etiology of the Veteran’s right-hand condition, claimed as numbness and pain. The examiner must review the claim file. a) The examiner should identify any and all current right-hand disabilities. b) The examiner must then opine whether the Veteran’s right-hand condition is at least as likely as not related to an in-service injury, event, or disease, including his reported shrapnel injury during combat in Vietnam from January 1968 to January 1969. The examiner is advised that the Veteran’s exposure to combat is conceded. Thus, his report of suffering a right-hand shrapnel injury in service must be accepted, even in the absence of service treatment record documenting the injury. In answering this question, the examiner should discuss whether the Veteran’s current right-hand disability is consistent with the nature and history of the injury described. c) If peripheral neuropathy is found, the examiner must opine as to whether it is at least as likely as not: (i) began during active service, (ii) manifested within one-year after discharge from service, or (iii) was noted during service with continuity of the same symptomatology since service. d) The examiner must also opine whether it is at least as likely as not that the Veteran’s current right-hand condition is either: (i) proximately due to his service-connected diabetes mellitus, or (ii) aggravated beyond its natural progression by his service-connected diabetes mellitus. A complete rationale must be provided for all opinions. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Telamour, 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.