Citation Nr: 25003735 Decision Date: 03/19/25 Archive Date: 03/19/25 DOCKET NO. 20-25 044 DATE: March 19, 2025 ORDER New and material evidence has been received to reopen the claim of entitlement to service connection for a right-hand condition. REMANDED Entitlement to service connection for a right-hand condition is remanded. FINDING OF FACT Evidence received more than one year since the final June 1990 rating decision is neither cumulative nor redundant of evidence at the time of the prior decision and raises a reasonable possibility of substantiating the Veteran's claim for entitlement to service connection for a right-hand condition. CONCLUSIONS OF LAW 1. The June 1990 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. 2. New and material evidence has been received to reopen the claim of entitlement to service connection for a right-hand condition. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty in the United States Army from July 1986 to July 1989. This matter comes before the Board on appeal from an October 2016 rating decision of a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). In February 2024, the Board denied the reopening of the Veteran's service connection claim for a right-hand condition, entitlement to service connection for a right ankle condition, and entitlement to service connection for a bilateral eye condition. The Veteran appealed the Board's denial of the reopening of the Veteran's service connection claim for a right-hand condition to the United States Court of Appeals for Veterans Claims (Court). In November 2024, the Court granted a Joint Motion for Partial Remand (JMPR) submitted by the Veteran and the Secretary of Veterans Affairs (Parties), vacated the February 2024 Board decision insofar as it denied the reopening of the Veteran's service connection claim for a right-hand condition, and remanded that matter to the Board for compliance with the JMPR instructions. The Parties to the JMPR agreed that the Board erred by providing an inadequate statement of reasons or bases in support of its decision. See JMPR at 3. Specifically, the Board failed to presume the credibility of evidence submitted and failed to address arguments submitted by the Veteran's attorney asserting lay reports of current symptoms and impairment made by the Veteran as sufficient confirmation of a disability. Id. In this regard, the Parties agree that on remand the Board must provide an adequate statement of reasons or bases addressing (1) whether new and material evidence was received, without conducting a credibility evaluation of the evidence; and (2) the Veteran's expressly raised March 2021 arguments. Id. 1. New and material evidence has been received to reopen the claim of entitlement to service connection for a right-hand condition. A decision of the AOJ becomes final and is not subject to revision on the same factual basis unless a notice of disagreement is filed within one year of the notice of the decision, or new and material evidence is received during the appeal period after the decision. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.302, 20.1103. If a claim of entitlement to service connection has been previously denied and that decision became 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; see Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). New evidence is defined as existing evidence not previously submitted to agency decision-makers. 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. 38 C.F.R. § 3.156(a). The AOJ denied the Veteran's claim for service connection for a right-hand condition in a June 1990 rating decision based on no current diagnosis. The Veteran was informed of this decision the next month, he did not appeal this decision, and new and material evidence was not received within one year of notice of issuance of the decision. Thus, the June 1990 rating decision became final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.1103; Buie v. Shinseki, 24 Vet. App. 242, 252 (2010). Evidence received more than one year since the final June 1990 rating decision constitutes new and material evidence as to the Veteran's service connection claim for a right-hand condition. Specifically, there is a January 2025 (signed November 2024) VA Form 21-4138 noting symptoms, including pain, and relates to evidence of a current diagnosis. This evidence is new, as it was not previously considered by the AOJ. The evidence is also material, as it is not cumulative or duplicative of evidence previously considered and it raises a reasonable possibility of substantiating the claim. As such, the claim for a right-hand condition is reopened. REASONS FOR REMAND 2. Entitlement to service connection for a right-hand condition is remanded. Based on the Veteran's assertion of pain in his right hand and an in-service injury, a remand is necessary to obtain a VA examination and corresponding opinion to address the same. See Barr v. Nicholson, 21 Vet. App. 303, 310-11 (2007). Of note, the Board acknowledges the Veteran's attorney's statement that the Veteran submitted a VA Form 21-4138 dated December 15, 2017. There is no record of this document in the Veteran's casefile or that it was ever submitted to the VA. The Veteran or his attorney should to resubmit for consideration. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. With any necessary assistance from the Veteran, obtain any outstanding relevant private treatment records. 3. Schedule the Veteran for an examination to determine the nature and etiology of any disability or functional impairment of the right hand. The claims file should be made available to and should be reviewed by the examiner. Any necessary testing should be performed. The examiner should address the following: (a.) Please diagnose any current disability or functional impairment of the right hand. The examiner is advised that for purposes of this question, pain that is productive of a functional impairment may represent a current disability even in the absence of a diagnosed disorder. (b.) For each disorder or functional impairment diagnosed in subpart (a), please opine as to whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that such impairment had its onset during or is otherwise etiologically related to the Veteran's active service, to include the documented incidents involving his right hand. In answering this question, please discuss the VA Form 21-4138 submitted January 2025 and the in-service incidents involving the Veteran's right hand. (Continued on the next page) ? A complete rationale for each of the examiner's opinions should be provided, citing to specific evidence of record, as necessary. If the examiner cannot provide an opinion without resort to speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). If the inability to provide an opinion without resorting to speculation is due to a deficiency in the record (additional facts are required), the AOJ should develop the claim to the extent it is necessary to cure any such deficiency. If the inability to provide an opinion is due to the examiner's lack of requisite knowledge or training, then the AOJ should obtain an opinion from a medical professional who has the knowledge and training needed to render such an opinion. JIMMY L. BARDIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. J. Rogers, 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.