Citation Nr: 22015028 Decision Date: 03/16/22 Archive Date: 03/16/22 DOCKET NO. 19-07 341 DATE: March 16, 2022 ORDER New and material evidence has been received, and the claim for service connection for residuals of an injury to the right hand (adjudicated as fracture right 5th digit) is reopened. REMANDED Service connection for residuals of an injury to the right hand is remanded. FINDINGS OF FACT 1. In an unappealed December 2016 rating decision, the RO denied the Veteran's claim of entitlement to service connection for residuals of an injury to the right hand. 2. Evidence received since the December 2016 rating decision is new, relates to an unestablished fact necessary to substantiate the Veteran's claim of service connection for residuals of an injury to the right hand. CONCLUSION OF LAW Since the December 2016 rating decision, new and material evidence has been received with respect to the Veteran's claim of entitlement to service connection for residuals of an injury to the right hand; therefore, the claim is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty with the United States Marine Corps from June 1977 to June 1981 and from December 1981 to December 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an April 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In October 2021, the Veteran provided testimony at a Board hearing before the undersigned Veterans Law Judge (VLJ). A copy of the hearing transcript has been associated with the record. At the hearing, the VLJ noted that the record would be held open for 30 days for submission of additional evidence. The Veteran waived RO consideration of any additional evidence that would be submitted after the hearing and additional evidence that may have been added to the record since the issuance of any earlier statements of the case (SOC) or supplemental statements of the case (SSOC). New and Material Evidence In general, Board decisions and rating decisions that are not timely appealed are final. See 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 20.1100, 20.1103. Pursuant to 38 U.S.C. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured to that claim. "New" evidence means evidence not previously submitted to the agency decision-maker. "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 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. See 38 C.F.R. § 3.156(a). The threshold for determining if there is new and material evidence is low. See Shade v. Shinseki, 24 Vet. App. 110 (2010). In the determination of whether new and material evidence has been received, the credibility of the evidence is to be presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The VA is not, however, bound to consider credible that which is the patently incredible. See Duran v. Brown, 7 Vet. App. 216 (1994). 1. The application to reopen the claim for service connection for residuals of an injury to the right hand The RO denied service connection for residuals of an injury to the right hand in a December 2016 rating decision finding that there was no evidence of an event disease or injury during service and that there was no evidence of a nexus to service. The Veteran did not appeal the December 2016 rating decision and new and material evidence was not associated with the claims folder within one year of the rating decision. The decision became final. In a September 2017 Decision Review Officer (DRO) Conference Report, the Veteran contended that the service treatment records were incorrect in showing treatment for his left hand when he actually injured his right hand. The Veteran also testified at the October 2021 hearing of ongoing pain and discomfort in his right hand as a result of an in-service injury. As this new evidence pertains to the basis for a prior denial, namely whether the Veteran has a current, chronic disability related to service, the claim is reopened. REASONS FOR REMAND 1. Service connection for residuals of an injury to the right hand is remanded. The Veteran testified at the October 2021 hearing that during a field exercise he lacerated and broke a finger on his right. He reports that the finger was never set properly and has continued to cause pain and reduced flexibility. A July 2016 VA radiology report of the Veteran's right hand documents mild degenerative changes at the fifth DIP joint. A remand is warranted for a VA examination and opinion to determine the etiology of any currently diagnosed right hand disability. The matter is REMANDED for the following action: Schedule the Veteran for a VA examination regarding the Veteran's claim for residuals of a right hand injury. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with claims file, including the Veteran's service treatment records, post-service medical records, and assertions. The examiner must opine as to whether it is at least as likely as not that a right hand disability began in service, was caused by service, or is otherwise related to the Veteran's military service. (Continued on next page) The examiner must provide a complete rationale for all opinions expressed and conclusions reached. Evan M. Deichert Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Henriquez, 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.