Citation Nr: 22051277 Decision Date: 09/09/22 Archive Date: 09/09/22 DOCKET NO. 20-28 286A DATE: September 9, 2022 ORDER New and material evidence having been received, the claim for service connection for a right shoulder condition is reopened. Entitlement to service connection for a right pinky finger injury is granted. REMANDED Entitlement to service connection for a right shoulder condition is remanded. FINDINGS OF FACT 1. An April 2009 rating decision denied the Veteran's claim for service connection for a right shoulder condition; the Veteran did not appeal that decision or submit new and material evidence during the appeal period and that decision is final. 2. Some of the evidence received since the April 2009 final denial is new and raises a reasonable possibility of substantiating the Veteran's claim for service connection for a right shoulder condition. 3. An April 2009 rating decision denied the Veteran's claim for service connection for a right pinky finger injury. Service treatment records showing a right pinky finger injury were received subsequent to that decision. 4. The Veteran suffered a right pinky finger injury during service and a residual scar is currently shown. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claim for service connection for a right shoulder condition. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. The criteria for entitlement to service connection for a right pinky finger injury have been met. 38 U.S.C. § 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from July 2005 to February 2009. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). As an initial matter, the Board is accepting the July 2020 substantive appeal (VA Form 9) pertaining to the right shoulder disability, as timely filed in light of the pandemic challenges extant at the time. 38 U.S.C. § 7105; 38 C.F.R. § 19.30. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in April 2021. A transcript of the hearing is of record. New and Material Evidence Generally, if a claim of entitlement to service connection has been previously denied and that decision has become final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108. 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). The threshold to reopen a claim is low. See Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). New and material evidence can be construed as that which would contribute to a more complete picture of the circumstances surrounding the origin of a Veteran's disability or injury, even when it would not be enough to convince the Board to grant the claim. Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). 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. Whether new and material evidence has been received to reopen a claim for a right shoulder condition The Veteran's claim for service connection for a right shoulder condition was initially denied by way of an April 2009 rating decision. The Veteran did not initiate an appeal or submit new and material evidence during the appeal period and that decision became final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b); 20.302, 20.1103; see also Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). The Veteran again filed a claim to establish service connection for a right shoulder condition in September 2018. In the January 2019 rating decision that is the subject of this appeal, the RO reopened the claim for service connection for a right shoulder condition, but confirmed and continued the denial. The Board has an obligation to make an independent determination of its jurisdiction regardless of actions by the RO. Barnett v. Brown, 8 Vet. App. 1 (1995), aff'd, 83 F.3d 1380 (Fed. Cir. 1996). The April 2009 final rating decision denied the claim for a right shoulder condition because there was no evidence of a chronic condition during service. Evidence added to the record since the April 2009 rating decision includes VA treatment records, a November 2018 VA shoulder examination, additional service treatment records, and the April 2021 hearing transcript in which the Veteran testified to having chronic shoulder pain since service from carrying up to 100 pounds of gear. The Board has considered the provisions of 38 C.F.R. § 3.156(c), but the additional service treatment records reveal no complaints or findings concerning a right shoulder disability. Some of the evidence is new and contributes to a more complete picture of the origins of the claimed disability. Accordingly, the Board finds that new and material evidence has been received, and the claim for service connection for a right shoulder condition is reopened. See Shade, 24 Vet. App. 110. Service Connection The Veteran's claim for service connection for a right pinky finger injury was initially denied by way of an April 2009 rating decision. Since that time, additional service treatment records have been received showing the Veteran suffered an injury to the right pinky during service. These are relevant and official service department records that existed and had not been associated with the claims file when VA first decided the claim and, therefore, the issue is considered as one not requiring new and material evidence, and the claim will be decided on the merits. 38 C.F.R. § 3.156(c). Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2020). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). 2. Entitlement to service connection for a right pinky finger injury The Veteran contends that he suffered a right pinky finger injury during service and has current residuals. At the Veteran's April 2021 hearing, the Veteran testified that he received his injury while deployed to Iraq when a door was closed on his finger. The Veteran further testified that he sometimes has pain, especially during cold weather, and testified to the visible scar on his finger. The Veteran's newly received service treatment records (STRs) reveal a December 2007 medical note stating the Veteran's right little finger was smashed by an up-armored HUMVEE door, and noted some abrasions and contusions. The medical note further documents the right little finger was swollen, to include along the underside and over the middle phalanx, and over the distal phalanx along the extensor surface. An April 2009 examination noted the Veteran had a sustained laceration to his small right finger during service which was repaired with stitches and was placed in a splint during service, but provided no opinion as to whether the Veteran's claim was related to service. On examination, a well-healed 1.5 cm linear scar at small finger middle phalanx was noted. An x-ray of the hand revealed no bony abnormality. The examiner diagnosed status post laceration to right small finger with normal examination. During the Board hearing, the undersigned also observed a scar to the right pinky finger. Upon review of the record, the Board finds the evidence reveals an injury to the right pinky finger during service and the presence of a current residual. Thus, after resolving all doubt in the Veteran's favor, the Board finds that service connection for a right pinky finger injury is warranted. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 3. Entitlement to service connection for a right shoulder condition is remanded While further delay is regrettable, the Board finds that a remand is necessary prior to adjudicating the claim for entitlement to service connection for a right shoulder condition. During the Veteran's April 2021 hearing, the Veteran testified to having chronic shoulder pain since service from carrying up to 100 pounds of gear. Accordingly, the Board finds an additional opinion is needed. Moreover, it appears that some of the Veteran's STRs are missing from the claims file, to include the Veteran's separation examination from service. On remand, attempts should be made to obtain the Veteran's outstanding STRs. The matter is REMANDED for the following action: 1. Ask the Veteran to provide the names and addresses of all medical care providers who have treated him for his right shoulder condition. After securing any necessary releases, request any relevant records identified. In addition, obtain updated VA treatment records and associate them with the claims file. If any requested records are unavailable, the Veteran should be notified of such. 2. Obtain outstanding STRs and associate them with the claims file, to include the Veteran's separation examination from service. If additional STRs are unavailable, issue a memorandum of unavailability and associate the memorandum with the record. 3. After records development has been completed to the extent possible, obtain an addendum opinion of the right shoulder claim. Following a review of the claims file the examiner is asked to opine whether the Veteran's right shoulder condition is related to his service. The examiner should explain why or why not, to include addressing the Veteran's contention of the onset of shoulder pain from carrying up to 100 pounds of gear during service, and addressing the Veteran's contention that he has had ongoing shoulder pain since service. A complete rationale should be provided for the opinion expressed. 4. If the claim remains denied, issue a supplemental statement of the case. K. A. BANFIELD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Perez, 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.