Citation Nr: 1321069 Decision Date: 07/01/13 Archive Date: 07/12/13 DOCKET NO. 09-49 891 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for a left hand disability. REPRESENTATION Veteran represented by: James R. Carver, Esquire WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M. N. Hyland, Senior Counsel INTRODUCTION The Veteran served on active duty from August 1974 to August 1976 and from December 1976 to December 1979. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision of the Philadelphia, Pennsylvania Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that this claim was characterized by the RO as a claim to reopen. However, for the reasons explained below, the Board finds this claim is a claim for service connection on the merits arising from the May 2007 RO rating decision. The Veteran first filed for service connection for a left hand disability in a November 2006 claim. In May 2007, the RO issued a rating decision denying the claim. In the same month, prior to issuing the rating decision, the RO made a formal finding of unavailability of service treatment records (STRs) for the Veteran's period of service from December 1976 to December 1979. The Veteran filed claims to reopen his left hand claim in August and October 2008. These claims were denied by the RO for lack of new and material evidence in September 2008 and January 2009 rating decisions. In June 2009, the Veteran submitted copies of STRs from his 1976 to 1979 period of service. These STRs document incurrence of and treatment for a left hand injury during this period of service. 38 C.F.R. § 3.156(c) dictates that at any time after VA issues a decision on a claim, if VA receives relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim. Such records include STRs that are related to a claimed in-service event, injury or disease. Accordingly, in light of the June 2009 receipt of STRs describing a left hand injury during the Veteran's military service, the Board finds that VA must reconsider the initial May 2007 rating decision denying entitlement to service connection for a left hand disability. A Board hearing was held before the undersigned in July 2012. A transcript of this hearing is of record. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the Veteran if further action is required. REMAND At his July 2012 Board hearing, the Veteran contended that the November 2009 VA examination regarding his left hand disability was inadequate. The Board agrees, because the examiner does not appear to have reviewed all of the relevant records regarding the Veteran's in-service left hand injury and because the examiner failed to provide a rationale for his etiology opinion. With respect to the November 2009 VA examiner's review of the record, the examination report reflects that the examiner initially states that he had reviewed the Veteran's claim file, but then states that "the military medical records are incomplete as there is no description of the injury of the claimant's left ring finger. Available notes read that claimant presents some three days after the stab wound with evidence of infection and the stab wound was at the base of the left ring finger on the palmar side and what the treatment of the infected wound was is unclear to the examiner as the military medical records describing that treatment are not available to the examiner. The claimant does have a linear scar at the base of the left ring finger on the palmar side and a linear scar in the third left web space. The claimant reports that those scars are all surgical so that he had some treatment." The Board notes however that the STRs of record include multiple pages of treatment notes regarding the Veteran's stab wound to the left hand, including a description of how the injury was incurred and describing treatment for an infection that consisted of incision and drainage of an abscess, exploration of the flexor tendon of the left right finger, and an exploratory arthrotomy of the metacarpophalangeal joint of the left ring finger in March 1978. Therefore, the records do contain information on how the injury was incurred and treated and reflect that such treatment included a surgical procedure. By the examiner's own admission, he appears to have not reviewed these relevant medical records. Moreover, the examiner's etiology opinion consists simply of the statement that there was "no relationship" found between the injury of the Veteran's left ring finger during military service and his current left hand disorder of weakness of the entire left hand. By way of an apparent rationale, the examiner merely provides the conclusory statement that "the stab wound of the left ring finger and its treatment would have nothing to do with the claimant's symptom of a weak left hand." In light of the examiner's incomplete review of the relevant medical records and incomplete reasoned rationale for the etiology opinion provided, the Board finds the examiner's opinion is inadequate. Therefore, this matter must be remanded to afford the Veteran a new VA examination and etiology opinion. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (stating that once VA undertakes the effort to provide an examination when developing a claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided); see also Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) ("[A] mere conclusion by a medical doctor is insufficient to allow the Board to make an informed decision as to what weight to assign to the doctor's opinion.") Accordingly, the case is REMANDED for the following action: 1. Arrange for the Veteran to undergo a VA examination. The claims folder should be made available to and be reviewed by the examiner in conjunction with this request. The examiner should specifically address the following questions: Does the Veteran have a current left hand disability, (the examiner should note that for VA compensation purposes, a "current" disability includes any disability that existed at some point during the appeal [in this case from November 2006 forward] even if it has resolved by the time of the examination)? If no current left hand disability is found on examination, this should be expressly stated. For any left hand disability diagnosed, the examiner should opine as to whether it is at least as likely as not (a degree of probability of 50 percent or higher) that the current left hand disability is related to the Veteran's military service, to include the stab wound noted in the Veteran's STRs in March 1978. A complete rationale must be provided for all opinions rendered. If the examiner cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 2. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issue on appeal. If any of the benefits sought on appeal remain denied, in whole or in part, provide the Veteran and his attorney with a Supplemental Statement of the Case and afford them a reasonable opportunity to respond. Then return the case to the Board for further appellate review, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ C. CRAWFORD Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).