Citation Nr: 18146116 Decision Date: 10/31/18 Archive Date: 10/30/18 DOCKET NO. 16-10 158 DATE: October 31, 2018 ORDER Entitlement to service connection for residuals for a 3rd and 4th finger sprain right hand is denied. REMANDED Entitlement to service connection for a low back disability is remanded. FINDING OF FACT The Veteran does not have a residual disability of a 3rd and 4th finger sprain of the right hand. CONCLUSION OF LAW The criteria for residuals of a 3rd and 4th finger sprain of the right hand have not been met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Marine Corps (USMC) from December 2001 to June 2002 and from June 2006 to August 2009. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Augusta, Maine. Jurisdiction over the case has since been transferred to the RO in Detroit, Michigan. Service Connection 3rd and 4th finger sprain right hand The Veteran asserts that he has current pain in his right hand that began in service. His medical records show that he was treated for pain in his right hand during service. He was afforded a VA examination in April 2013. At that time, the examiner noted that the Veteran had 3rd and 4th digit sprain in service, but that the Veteran had a normal X-ray. Upon examination, the Veteran did not have limitation of motion or evidence of painful motion for any fingers or thumbs. The Veteran was able to perform repetitive-use testing with three repetitions without limitation of motion for any fingers. The examiner noted that there was no gap between the thumb pad and the fingers post-test. There was no gap between any fingertips and the proximal transverse crease of the palm. Moreover, the examiner found that the Veteran did not have any functional loss or functional impairment of any fingers or thumbs. The Veteran’s hand grip strength was normal. The examiner opined that the Veteran’s finger sprain was at least as likely as not incurred in service. The examiner noted that his opinion was based on emergency room discharge notes form August 28, 2007. A review of the post-service medical evidence of record shows that the Veteran received treatment for various disabilities from a VA Medical Center. Those records do not show the Veteran was diagnosed with a disability of the hands and fingers. Further, there is no indication from the record that the Veteran has reported symptoms of a disability of the hands and fingers related to service during the course of his treatment at the VA Medical Center. For a disability to be service connected, it must be present at the time a claim for VA disability compensation is filed or during, or contemporary to, the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Here, there is no evidence of record showing the Veteran to have a diagnosis of a disability of the hands and fingers. Congress has specifically limited entitlement to service-connected benefits to cases where there is a current disability. In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223 (1992). The Board recognizes the recent decision in Saunders v. Wilkie that “pain alone can serve as a functional impairment and therefore qualify as a disability.” No. 2017-1466, 2018 U.S. App. LEXIS 8467 (Fed. Cir. Apr. 3, 2018). However, the Court in Saunders cautioned that a Veteran cannot demonstrate service connection simply by asserting subjective pain. Id. Rather, the Court stated “[t]o establish the presence of a disability, the veteran will need to show that [his or] her pain reaches the level of functional impairment of earning capacity.” Id. In this case, while the Board acknowledges the Veteran’s subjective complaints of right hand pain, it finds that those symptoms are not shown in medical records to be severe enough to reach the level of functional impairment of earning capacity. Accordingly, the preponderance of the evidence is against the claim and entitlement to service connection for residuals of a 3rd and 4th finger sprain of the right-hand disability is not warranted. 38 U.S.C. § 5107 (b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Low back disability The Board finds that additional development is required before the remaining claim on appeal is decided. The Board notes that the Veteran has consistently asserted that he injured his back while serving in Iraq. Specifically, that he began having severe back pain while deployed in Iraq. The Veteran has also stated that he further injured his back during training in July 2011. The Veteran was afforded a VA examination in March 2013. At that examination, the examiner found that the Veteran had been diagnosed with a thoracolumbar spine disability, yet that the Veteran had no diagnosis of a lumbar spine disability. The examiner found that the Veteran had a normal examination. The examiner then explained that the Veteran’s X-ray findings of mild dextro convex scoliosis was most likely a finding that dates from the Veteran’s childhood. Further, that spina bifida occulta at L5 was a congenital disorder and was not caused by service. In general, service connection may not be granted for congenital or developmental defects, as they are not considered a disease or injury for the purpose of service connection. 38 C.F.R. §§ 3.303 (c), 4.9 (2018). However, service connection may be granted for a congenital or hereditary disease, as opposed to a defect, where the disease first manifested during service, or where it preexisted service but was aggravated or worsened beyond its normal progression as a result of service. VAOPGCPREC 82-90 (July 18, 1990); VAOPGCPREC 67-90 (July 18, 1990). Moreover, although VA regulations specifically prohibit service connection for congenital defects, if a defect is subject to a superimposed disease or injury, service connection may be warranted for the resultant disability. See VAOPGCPREC 82-90. In this case, the March 2013 examiner did not address whether the Veteran’s back disabilities were aggravated or worsened beyond their normal progression as a result of service; or whether the disabilities were subject to a superimposed disease or injury for which service connection is warranted for the resultant disability. Moreover, the examiner did not adequately address the Veteran’s lay statements of record. Thus, on remand, the VA examiner should provide the necessary opinions for determining whether service connection is warranted for any disability deemed to be a congenital or developmental defect. The matters are REMANDED for the following action: 1. Identify and obtain any pertinent, outstanding VA and private treatment records and associate them with the claims file. 2. Then, schedule the Veteran for a VA examination by an examiner with appropriate expertise to diagnose any currently present back disability. The claims file must be made available to, and reviewed by the examiner. Any indicated studies must be performed. Based upon the examination results and the review of the record, the examiner should make a determination as to whether any currently present back disability is a defect, disease, or are the result of an injury. In determining whether a condition is a defect, as opposed to a disease or injury, the examiner should consider that the term “disease” is broadly defined as any deviation from or interruption of the normal structure or function of any part, organ, or system of the body that is manifested by a characteristic set of symptoms and signs and whose etiology, pathology, and prognosis may be known or unknown. On the other hand, the term “defects” are defined as structural or inherent abnormalities or conditions that are more or less stationary in nature. Once all currently present back disabilities have been identified and characterized as a defect, disease, or the result of an injury, the examiner should provide the following opinions: a) Does the Veteran have a low back disability (a disease or a disability resulting from injury ONLY, not defect) that clearly and unmistakably existed prior to his active service? If so, was any pre-existing back disability (a disease or a disability resulting from injury ONLY) clearly and unmistakably NOT aggravated during active service? b) For any disability determined to be a defect, is it at least as likely as not (50 percent or better probability) that the Veteran developed superimposed low back pathology as a result of his active service? c) For any diagnosed low back disability NOT found to clearly and unmistakably exist prior to the Veteran’s service, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that the disability had its onset during the Veteran’s active service, or is otherwise etiologically related to such service. In forming the opinion, the examiner should specifically consider and address the Veteran’s lay statements regarding in-service complaints of back pain. The rationale for all opinions expressed must be provided. 3. Confirm that the VA examination report and all opinions provided comport with this remand, and undertake any other development found to be warranted. 4. Then, readjudicate the remaining issue on appeal. If the decision is adverse to the Veteran, issue a supplemental statement of the case and allow appropriate time for response. Then, return the case to the Board. Kristin Haddock Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD I. Cannaday, Associate Counsel