Citation Nr: 21001070 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 18-47 082 DATE: January 6, 2021 REMANDED Entitlement to service connection for disability of the right hand is remanded. Entitlement to service connection for disability of the left hand is remanded. Entitlement to service connection for disability of the right leg is remanded. Entitlement to service connection for disability of the left hip is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from December 2009 to November 2010 and from August 2011 to May 2012, to include service in Kuwait. He also had service in the Army National Guard, to include a period of active duty for training from June 1987 to March 1988. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a March 2018 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In September 2019, the Board, in pertinent part, declined to reopen claims for service connection for disabilities of the hands, left hip, and right leg. The basis of the Board’s decision was that a January 2016 rating decision denying the claims had become final and that new and material evidence had not been received since that time to warrant their reopening. 38 U.S.C. § 5108; 38 U.S.C. § 3.156(a). The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In July 2020, the Court granted a Joint Motion for Partial Remand (JMPR) filed by the parties to the appeal (the Veteran, through an attorney, and representatives from VA General Counsel), thereby vacating the Board’s decision insofar as it declined to reopen the claims for service connection for disabilities of the hands, left hip, and right leg, and remanding those matters for readjudication. 1. Entitlement to service connection for disability of the right hand is remanded. 2. Entitlement to service connection for disability of the left hand is remanded. 3. Entitlement to service connection for disability of the right leg is remanded. 4. Entitlement to service connection for disability of the left hip is remanded. In the JMPR filed with the Court, the parties to the appeal agreed that there was some ambiguity with respect to whether a January 2016 VA neurological examination was of record at the time of the January 2016 rating decision that denied the Veteran’s claims for service connection for disabilities of the hands, left hip, and right leg. The parties noted, in part, that the “Date of Note” on the January 2016 neurological examination was January 22, 2016; that the date of the rating decision was January 26, 2016; that the notification letter relating to the rating decision was dated January 28, 2016; and that the “Entry Date” and the date of the VA examiner’s signature on the examination report was January 29, 2016. The parties agreed that a remand was warranted for the Board to address whether the report of the neurological examination was of record at the time of the January 2016 rating decision and to readjudicate the issue of whether new and material evidence had been submitted to reopen the claims. The Board has revisited the examination report in question. Careful review of the document reveals that the report includes electrodiagnostic findings dated January 27, 2016, one day after the January 26 rating decision. Therefore, the Board must conclude that the examination report was not of record at the time of the January 26, 2016 rating decision. Under the law applicable to legacy claims, if evidence, including VA treatment records, is received during the one-year period following a rating decision, VA is required to provide a “directly responsive” determination as to whether it constitutes new and material evidence relating to an earlier claim. Mitchell v. McDonald, 27 Vet. App. 431, 437 (2015); Beraud v. McDonald, 766 F.3d 1402, 1405 (Fed. Cir. 2014). If VA does not make the necessary determination, the underlying claim remains pending. Mitchell, 27 Vet. App. at 437-38; 38 C.F.R. § 3.156(b). Here, although the January 2016 VA neurological examination was received after the January 2016 rating decision at issue, the RO did not make a directly responsive determination with respect to whether the report of that examination was new and material as to the claims currently at issue. As such, the underlying claims remain pending and must be considered de novo, without respect to the January 2016 denial. 38 C.F.R. § 3.156(b); Beraud v. McDonald, 766 F.3d 1402, 1407 (2014); Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011). In the March 2018 rating decision on appeal, because the AOJ found that new and material evidence had not been received to reopen the Veteran’s claims for service connection for disabilities of the hands, left hip, and right leg, it did not reach the merits of those claims. To avoid any prejudice to the Veteran, a remand for AOJ consideration of the merits of those matters, in the first instance, is warranted. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). These matters are REMANDED for the following action: 1. Ask the Veteran to identify, and provide appropriate releases for, any private care providers who may possess new or additional evidence pertinent to the issues on appeal. If he provides the necessary release(s), assist him in obtaining the records identified, following the procedures set forth in 38 C.F.R. § 3.159. Any new or additional (i.e., non-duplicative) evidence received should be associated with the record. If any of the records sought are not available, the record should be annotated to reflect that fact, and the Veteran and his representative should be notified. 2. Obtain copies of records pertaining to any VA treatment the Veteran has received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the record. 3. After completing the above, and any other development as may be indicated (to include obtaining any additional examinations and/or medical opinions deemed necessary), the issues on appeal should be adjudicated on the merits based on the entirety of the evidence. If any benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board F. Lanton, 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.