Citation Nr: 18146887 Decision Date: 11/02/18 Archive Date: 11/01/18 DOCKET NO. 18-32 740 DATE: November 2, 2018 ORDER Entitlement to service connection for right thumb disability is denied. REMANDED Entitlement to service connection for left ankle disability is remanded. FINDING OF FACT The weight of the evidence is against a finding that the Veteran has a current right thumb disability. CONCLUSION OF LAW The criteria for service connection for right thumb disability have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1999 to November 2011. Service Connection The Veteran claims that his right thumb pain is a result of the recoil from shooting different weapons while in service. Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Generally, service connection requires (1) the existence of a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Service treatment records reflect that the Veteran had a deployment related right hand injury, but there is no notation of a right thumb injury. The Veteran, however, asserts that he received treatment for his right thumb while on the field and that the corpsman gave him Motrin. The August 2017 VA examination report noted the Veteran’s complaints of constant right thumb pain that became worse, but that he is unsure of the onset of pain. The Veteran denied flare-ups and also denied having any functional loss or functional impairment of the right thumb. The VA examiner found no limitation of motion and no pain in range-of-motion testing or following repetitive motion. Range of motion testing was normal. X-rays taken during the VA examination showed no arthritis. The examiner indicated there was insufficient objective evidence to support the Veteran’s claim of a right thumb condition and no diagnosis was warranted. For the following reasons, the claim must be denied. The presence of a disability at the time of filing of a claim or during its pendency warrants a finding that the current disability requirement has been met, even if the disability resolves prior to the Board’s adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Moreover, the Board cannot draw a bright line at the date of claim but must consider all the evidence of record in determining whether the Veteran has met the current disability requirement. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013) (Board erred in failing to address pre-claim evidence in assessing whether a current disability existed, for purposes of service connection, at the time the claim was filed or during its pendency). In addition, a “disability” for the purposes of awarding VA disability benefits is not only a disease or an injury, but also any “other physical or mental defect.” 38 U.S.C. § 1701 (1); Allen v. Brown, 7 Vet. App. 439, 444-45 (1995) (applying definition of disability in section 1701(1) to statutes describing “eligibility for disability compensation for service connected disabilities”). Recently, the Federal Circuit held that pain can constitute disability if it results in impairment and is due to disease or injury in service. Saunders v. Wilkie, 886 F.3d 1356, 1364-65 (Fed. Cir. 2018) (Fed. Cir. April 3, 2018). In this case, however, the weight of the evidence reflects that the Veteran has not suffered from any functional impairment related to his right thumb at any time during the pendency of the claim. In reaching the conclusion that the right thumb did not cause functional impairment, the examiner considered the Veteran’s statements that it caused him pain. The VA examiner found no pain on range-of-motion testing or following repetitive motion, and no functional impairment of the joint. Here, the objective medical evidence does not show any functional impairment from the Veteran’s right thumb, as the VA examination report reflects that the Veteran also denied functional impairment. Therefore, a preponderance of the evidence is against a finding that the Veteran currently has a diagnosed right thumb disability or any right thumb pain that causes functional impairment that would be considered a disability for compensation purposes. For the foregoing reasons, the preponderance of the evidence reflects that the Veteran has not met the current disability requirement with regard to his claim for entitlement to service connection for right thumb pain. The benefit of the doubt doctrine is therefore not for application in this regard. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. As the Veteran has not met his burden with regard to an essential element of his claim, the claim must be denied. REASONS FOR REMAND Entitlement to service connection for left ankle disability is remanded. The Veteran asserts that his left ankle disability is a result of his service. Specifically, in the October 2017 notice of disagreement, the Veteran asserts that his left ankle was injured multiple times while on active duty because he constantly rolled his ankle. The Veteran also indicated in his June 2018 substantive appeal that his complaints were not in his service treatment records, because he saw a corpsman out in the field on active duty. Here, the Veteran’s DD-214 reflects the Veteran participated in Operation Iraqi Freedom and his primary specialties includes rifleman, infantry unit leader, and martial arts instructor. In a May 2011 service treatment record, the clinician noted a deployment related injury to his right hand. Overall, the asserted injuries to the ankles are found to be consistent with the types and circumstances of the Veteran’s service. 38 U.S.C. § 1154(a). The Board finds that an additional opinion is required. The Veteran underwent a VA examination in August 2017 and the examiner provided a negative nexus as to whether his left ankle disability was caused by his service-connected right ankle disability. As noted above, however, given that the Veteran also asserts that this left ankle disability was caused by his service, a remand is warranted to obtain an addendum opinion to address this theory of service connection. The matter is REMANDED for the following action: Request an addendum opinion from a qualified VA physician to determine the etiology of his left ankle disability. The need for an additional examination of the Veteran is left to the discretion of the VA examiner(s) providing the opinion. The claims file and a copy of this Remand must be made available to the reviewing examiner, and the examiner shall indicate in the addendum report that the claims file was reviewed. Based on review of the record, the physician should determine whether it is as least as likely as not (50 percent probability or more) that the left ankle disability had its onset during service or was otherwise causally or etiologically related to service, to include the Veteran’s contention that he rolled his left ankle numerous times during service and that he was treated by a corpsman while on the field in Iraq. In answering all of the questions, the physician may not rely solely on the absence of medical records as a basis for the opinion and should consider the Veteran’s statements, particularly his reports of continuity of symptoms. The physician is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran’s reports, the examiner must provide a reason for doing so. The physician should provide a rationale for each opinion given. ERIC S. LEBOFF Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Sarah Campbell