Citation Nr: 21012329 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 16-17 446 DATE: March 4, 2021 ORDER The May 18, 2020 Board of Veterans' Appeals (Board) decision, addressing the issue of entitlement to a compensable initial rating for right fifth finger contracture is vacated. REMANDED Entitlement to a compensable initial rating for right fifth finger contracture is remanded. FINDING OF FACT The Board was in constructive possession of additional evidence relevant to the claim which was not considered in its May 18, 2020 decision, and as such, the Veteran was denied due process of law. CONCLUSION OF LAW The criteria for a motion of vacatur of the Board Decision issued on May 18, 2020, which denied the Veteran's claim for entitlement to a compensable initial rating for right fifth finger contracture have been met. 38 U.S.C. § 7104 (a); 38 C.F.R. § 20.904. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1995 to December 1999. In September 2019 the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a videoconference hearing. During the hearing, the VLJ clarified the issue on appeal, explained the concept of increased rating claims, identified potential evidentiary defects, and held the file open for 60 days to allow for any submissions. These actions comply with 38C.F.R. §3.103. A transcript of the hearing is of record. This matter was previously adjudicated by the Board in May 2020 Board decision. Motion to Vacate Whether a vacatur of a May 2020 Decision of the Board of Veterans' Appeals that denied a compensable initial rating for right fifth finger contracture is warranted. In a May 2020 decision, the Board denied the Veteran's claim of entitlement to a compensable initial rating for right fifth finger contracture. The Veteran has moved the Board to vacate the decision on the grounds that the Board did not consider additional evidence relevant to his claim. The Board of Veterans' Appeals (Board) may vacate an appellate decision at any time upon request of the appellant or his or her representative, or on the Board's own motion, when an appellant has been denied due process of law or when benefits were allowed based on false or fraudulent evidence. 38 U.S.C. § 7104 (a); 38 C.F.R. § 20.904. Depending on the facts of the case, denial of due process may include a failure to consider relevant evidence that was constructively in the Board's possession. Pursuant to 38 C.F.R. § 20.1100, all decisions of the Board will be stamped with the date of mailing on the face of the decision. Here, the Board's decision was mailed on May 18, 2020. The Veteran had already submitted additional relevant evidence to support his claim in the form of argument read into the record at his hearing which was partially noted as inaudible. See hearing transcript. In September 2020, he submitted the transcript of what he read into the record in September 2020 that was largely noted as inaudible. The United States Court of Appeals for Veterans Claims (Court) indicated in Bell v. Derwinski, 2 Vet. App. 611 (1992) that certain VA evidence is constructively before adjudicators. See Bell, 2 Vet. App. at 613 (where documents are in VA control and could reasonably be expected to be a part of the record, such documents are, in the contemplation of law, before VA and should be included in the record). Here we reasonably conclude that the Veteran submitted additional relevant evidentiary data that was constructively in VA's possession prior to the signature and mailing date of the pertinent decision of May 18, 2020. As such, the Board finds that the Veteran was denied proper due process of law because the Board failed to consider evidence that was constructively in its possession as of the signature and mailing date of its May 18, 2020 decision that denied entitlement to a compensable initial rating for right fifth finger contracture. Accordingly, the motion to vacate is granted and the May 18, 2020 Board decision addressing the issue of entitlement to a compensable initial rating for right fifth finger contracture is therefore vacated. 38 U.S.C. § 7104 (a); 38 C.F.R. § 20.904. REASONS FOR REMAND Entitlement to a compensable initial rating for right fifth finger contracture is remanded. A remand is necessary for additional development. As discussed earlier in this decision, the Veteran submitted additional recent and relevant evidence/argument to support his claim of entitlement to a compensable initial rating for right fifth finger contracture. He has urged the condition has worsened since the most recent VA examination, conducted in November 2014. He described what he feels are neurological and orthopedic symptoms. In light of this additional evidence, and in an effort to provide the Veteran the opportunity with due process to accurately assess his current level of disability, he should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of right fifth finger contracture. Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). The matters are REMANDED for the following action: Schedule the Veteran for an examination of the current severity of his right fifth finger contracture. The examiner should identify the nature and severity of all associated symptoms (and related impairment of function). The examiner should report all signs and symptoms necessary for rating the disability. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. RIPPEL 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.