Citation Nr: 18155997 Decision Date: 12/06/18 Archive Date: 12/06/18 DOCKET NO. 16-38 537 DATE: December 6, 2018 ORDER Entitlement to service connection for a right thumb disability is denied. REMANDED Entitlement to service connection for prostrating headaches is remanded. FINDING OF FACT The evidence of record demonstrates that the Veteran does not have a currently diagnosed right thumb disability. CONCLUSION OF LAW The criteria for service connection for right thumb disability have not been met. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active duty service in the U.S. Army from March 1986 to January 1994. This case comes to the Board of Veterans’ Appeals (Board) on an appeal from an Agency of Original Jurisdiction (AOJ) decision dated May 2015. In the rating decision, the AOJ denied service connection for a right thumb disability and migraine or prostrating headaches. The Veteran appealed these determinations. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303 (d). In the absence of proof of a current disability, there can be no valid claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223 (1992). Service connection may only be awarded to an applicant who has a disability existing on the date of application or at any time during the appellate period, not for past disability. Degmetich v. Brown, 8 Vet. App. 208 (1995); 104 F.3d 1328, 1332 (1997)); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013). In evaluating whether a current disability exists, the Board must consider reports of the Veteran’s pain, even if there is no diagnosed condition. “Pain alone, without an accompanying diagnosis of a present disease, can qualify as a disability.” Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). However, the pain must functionally impair the veteran to constitute a disability. Saunders, 886 F.3d at 1368. While pain “can cause functional impairment,” its presence does not always “reach[ ] the level of a functional impairment of earning capacity” necessary to “establish the presence of a disability.” Saunders, 886 F.3d at 1367-68. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, tinnitus (ringing in the ears), etc.); (2) the layperson is reporting a contemporaneous medical diagnosis; or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (2012); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Right Thumb Disability The Veteran claims he has a right thumb condition due to an injury sustained while he was in service, in September 1990. For the reasons outlined below, the Board finds that the preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a current disability related to his right thumb. Initially, the Board notes that the Veteran’s physical examination upon his entrance into service was silent for any thumb injuries. However, the Veteran’s service treatment records reflect that he was, in fact, treated for an injury to his right thumb in September 1990. The provider diagnosed the Veteran with a ligament injury, and prescribed that he wear a splint for three months. In February 1991, the Veteran was re-evaluated after complaints of continuing pain in the right thumb. There were no radiographic abnormalities noted, though his range of motion was somewhat limited, and the Veteran was found to have had a bad sprain. The treating provider prescribed a thumb spica static splint for use at the Veteran’s own discretion. At that time, the provider instructed the Veteran to complete an orthopedic follow-up for a persistent or chronic problem that prevented duty performance. The service treatment records do not show any other treatment for a right thumb sprain. The Veteran sought treatment for a right hand animal bite in March 1991, but sought no other treatment for the right thumb or right hand during service. The examination conducted upon the Veteran’s discharge from the Army revealed no right thumb abnormalities. The Veteran’s medical records show that, after his separation from service, he sought no treatment for a right thumb injury until January 2000. At that time, the Veteran reported being scratched by his pet, and was prescribed Motrin and ice for swelling. After that, based on the available records, no health care provider medically assessed the Veteran for a right thumb injury or disability until the VA examination in December 2014. In December 2014, the VA examiner found that, during service, the Veteran had had a ligament strain in his right thumb, but it had resolved. The examiner concluded that there is no current right thumb disability. The Veteran’s thumb was not painful or tender on the date of the examination. The examiner did not find any limitation of motion or evidence of painful motion for the right thumb. Muscle strength was normal. The examiner noted that the Veteran did not have any functional loss or functional impairment of his thumb. The Veteran asserts that the examiner did not do a thorough examination. For the purposes of the Board’s analysis, the examination performed is sufficient to assist in deciding the claim for service connection of the right thumb. If a VA examination is provided, it must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The examiner must provide a fully reasoned rationale that is not conclusory without resorting to mere speculation. Stefl v. Nicholson, 21 Vet. App. 120 (2007). The opinion should address all raised theories of entitlement. Id. In addition, the examiner must consider all the relevant evidence of record. Dalton v. Nicholson, 21 Vet. App. 23 (2007). The VA examiner’s opinion was based on a review of the record, in which the examiner independently noted the same relevant in-service events and injuries as the Board. The opinion was also based on an interview with and examination of the Veteran. The examination relied on the physician’s medical education, experience, knowledge, and training. The opinion also directly addressed the Veteran’s theory of entitlement to service connection. Stefl, supra. The service treatment records do show that the Veteran’s diagnosis in 1990 was a ligament sprain. The examiner explained that the diagnosis of a sprain does not cause problems decades later, which is why he concluded the problem had resolved. This rationale is not merely conclusory. Id. Moreover, the examiner considered whether there was any functional limitation to the Veteran’s thumb, and noted the Veteran’s lay statements that he is limited in holding a pen or knife for long periods of time. However, the examiner also noted that, while the Veteran appeared to have difficulty flexing his thumb during part of the examination, he then had no difficulty with flexion later on. Based on the facts that the Veteran has sought no recent medical treatment for his right thumb, is able to utilize a cane in his right hand without difficulty, and that his claim of difficulty using his right thumb is inconsistent with the medical records, the assertion, while competent, is not credible. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992) (holding that the Board must weigh and assess the evidence). With the examination that was performed, enough information was obtained for the physician to form an opinion on the theory of entitlement that was presented. It was therefore adequate. Barr, 21 Vet. App. at 311. The Board has also considered whether the subjective pain reported in this case would constitute a current disability by causing either functional impairment of the thumb, or functional impairment of earning capacity. Saunders, 886 F.3d 1356. The Veteran has reported pain in his thumb, which he is competent to report. The Board finds his report of pain credible, but in weighing it against the medical evidence of record, the Board gives the report little weight. The Board gives more weight to the VA examination in concluding that the Veteran’s pain does not cause any functional impairment of the thumb or impairment to the Veteran’s earning capacity. As noted above, the medical evidence of record contradicts the Veteran’s claim of his ability to hold a pen or knife for a limited time period. In addition, on examination, there was no evidence of painful motion in the thumb, and there was no functional loss or functional impairment of the thumb, nor limitation in range of motion after repetitive use. The Veteran’s hand grip was normal. The VA examiner also noted that, on the day of the examination, the Veteran did not have tenderness or pain to palpation. Moreover, the VA outpatient records mention that the Veteran ambulates with a cane in his right hand, and there is no mention of difficulty utilizing the cane due to thumb pain. Finally, the Veteran did not otherwise allege that his thumb pain impairs his earning capacity. Thus, given that the VA examination of the Veteran’s thumb was normal, and that any pain the Veteran experiences does not constitute a functional impairment of earning capacity, the Board must conclude that the Veteran does not have a current right thumb disability. Without a current disability, service connection may not be granted. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998). Consequently, the claim for a right thumb disability must be denied. Romanowsky, 26 Vet. App. at 294. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine does not apply to this appeal. Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001). REASONS FOR REMAND Entitlement to service connection for migraine headaches is remanded. Unfortunately, due to reasons that follow, a remand is required. Although the Board sincerely regrets this additional delay, it is necessary to ensure the Veteran is afforded adequate due process and every possible consideration. The December 2014 VA examiner did conclude that the Veteran has migraine headaches, including migraine variants. However, the examiner was asked to assess whether the Veteran’s headaches were specifically related to a motor vehicle accident that occurred in service. Having concluded that they are not related, the examiner concluded his inquiry without further assessing the etiology of the migraines. The service treatment records indicated that the Veteran suffered a possible concussion separate and apart from the identified motor vehicle accident, and had other various headaches during service and within the presumptive period after service. In addition, the Veteran claims that the headaches may be related to his sinusitis or allergic rhinitis, and the December 2014 examiner did not consider this assertion. Dalton, 21 Vet. App. 23. It is also unclear as to whether there is an etiological relationship between the Veteran’s headache disorder and his service-connected adjustment disorder with anxiety and depression as there is at least one November 2012 VA outpatient treatment record indicating that the Veteran’s lightheadedness and dizziness were likely due to panic attacks. Therefore, the Board finds that another VA examination is warranted to determine the nature and etiology of the Veteran’s headaches. Stefl, 21 Vet. App. 120; Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board’s duty to return an inadequate examination report “if further evidence or clarification of the evidence...is essential for a proper appellate decision.”). The matter is REMANDED for the following action: 1. Obtain any updated and current relevant VA treatment records and supplement the claims file. 2. Schedule the Veteran for a VA examination to ascertain the nature and etiology of the Veteran’s migraine headaches. All necessary tests should be conducted. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. The examiner should address the following: (a.) Whether it is at least as likely as not (50 percent or greater likelihood) that the Veteran’s current prostrating headaches manifested during service, were manifest to a compensable degree within one year of service, or are otherwise causally or etiologically related to a period of active duty service. The examiner should consider and discuss the following: i. Whether the current headaches are related to the possible concussion, dizziness, or forehead bruising the Veteran had in October 1987; ii. Whether the current headaches are related to any headaches or dizziness noted in service treatment records from October 1988, February 1989, June 1990, January 1991, March 1993, May 1993, August 1993, or September 1993; iii. Whether the current headaches are related to any headaches or dizziness noted in the records within the presumptive period, including from January 1994 or August 1994; iv. Per the Veteran’s contention, whether the current headaches are related to any in-service allergic rhinitis or sinusitis; v. Whether it is at least as likely as not that the Veteran’s headaches are proximately due to or alternatively, aggravated by, a service-connected disability to include service-connected adjustment disorder with anxiety and depression. v. In rendering the opinion, the examiner should consider the Veteran’s statements regarding the symptoms of his headaches to be competent. The examiner must provide all findings, along with a complete rationale for his or her opinion(s), in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state so and provide a rationale for this conclusion, including an explanation of whether there is any potentially available information that, if obtained, would allow for a non-speculative opinion. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Smith, Associate Counsel