Citation Nr: 20004544 Decision Date: 01/21/20 Archive Date: 01/21/20 DOCKET NO. 09-02 137 DATE: January 21, 2020 REMAND Service connection for a deformity of the right little finger is remanded. REASONS FOR REMAND The Veteran had active military service from May 1975 to April 1981. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in April 2008 by the Department of Veterans’ Affairs (VA) Regional Office (RO) in Roanoke, Virginia. The Board remanded this matter in January 2012 for an appropriate VA examination, which was conducted in March 2018. This matter was returned to the Board and again remanded in May 2019. The May 2019 remand directed the RO to obtain private treatment records from April 2006 regarding the Veteran’s treatment for his right-hand. In August 2019, the Veteran informed the RO that the treatment records had been destroyed. Also, in the May 2019 remand, the RO was directed to obtain an addendum opinion to the March 2018 VA examination if private medical records were obtained. The RO determined that, because the private medical records from 2006 were destroyed and therefore unavailable, no addendum opinion was necessary as a result. Initially, and in this regard, the Board finds that the RO has made all reasonable effort to obtain the outstanding private medical records and has substantially complied with that portion of the remand instructions. However, the Board concludes that further evidentiary development with regard to the requested medical opinion is necessary. The January 2012 remand directed the examiner to consider if the deformity of the Veteran’s right little finger was related to his July 1979 car accident or was due to a post-service intercurrent cause such as the April 2006 right-hand injury. The examiner was further directed to consider the Veteran’s lay statements regarding continuing right little finger pain since service. The March 2018 examiner opined that the Veteran’s disability was less likely than not related to service as there was no record of treatment in service after the accident or for a long interval after service. Unfortunately, the examiner did not adequately explain his rationale as to why the Veteran’s right little finger deformity is not related to service, nor is there any evidence that the examiner considered the Veteran’s treatment in 2006 or his lay statements of pain since service. Additionally, the examiner indicated that the Veteran does not experience flare ups. However, in a November 2015 VA medical record, it was reported that the Veteran’s finger locks up and goes into spasms when holding certain objects. For these reasons, the Board reiterates that a new VA examination—with a clarifying medical opinion—is necessary. The Board errs when it fails to ensure substantial compliance with a Board remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (Board remand confers a right on a claimant to compliance with the remand order); Dyment v. West, 13 Vet. App. 141, 147 (1999) (clarifying that substantial compliance with Board remand is required). Where the Board fails to ensure substantial compliance, remand is appropriate. Stegall, 11 Vet. App. at 271. Further, the RO has indicated in the August 2019 Supplemental Statement of the Case (SSOC) that VA medical records dated from January 2019 to August 2019 located in “Legacy Content Manager Documents” have been considered. Significantly, however, these documents are not associated with the Veteran’s claim file. On remand, these documents should be associated with the Veteran’s claim file to adequately adjudicate this matter. This matter is REMANDED for the following action: 1. After procuring the appropriate authorization forms where necessary, obtain any outstanding medical treatment records relating to medical care that the Veteran has received for his right little finger disability. The Board is particularly interested in records of VA treatment that the Veteran received January 2019 to August 2019. 2. Then, schedule the Veteran for an appropriate examination to determine the nature and etiology of his right little finger disability. The examiner should review the claims file in conjunction with the examination and should acknowledge such review in the examination report. All necessary testing should be completed. After review of the claims file, as well as an interview with, and examination of, the Veteran, the examiner should render an opinion as to whether it is at least as likely as not (i.e., at least a 50 percent probability) that any right little finger disability had its onset during his active service or is otherwise related to active service. In rendering this opinion, the examiner must discuss whether any current deformity of the Veteran’s right little finger is related to his report of an injury in the July 1979 motor vehicle accident—noted as lacerations on the hands in the Military Police report—or is due to an intercurrent cause, to include the post-service April 2006 right-hand injury or the malunion of the finger noted in May 2017. Also, the examiner must discuss the Veteran’s reports of a continuity of right little finger pain and spasm since service. See the Veteran November 2015 report. If his reports are discounted, the examiner should provide a reason for doing so. A complete rationale for all opinions expressed must be provided. An examiner’s report that he or she cannot provide an opinion without resort to speculation is inadequate unless the examiner provides a rationale for that statement. As such, if the examiner is unable to offer an opinion, it is essential that the examiner provide a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided or whether the inability to provide the opinion is based on the limits of medical knowledge. No action is required of the Veteran until he is notified by VA. However, he is advised of his obligation to cooperate in ensuring the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005). His failure to report for a VA medical examination may impact the determination made. 38 C.F.R. § 3.655. The Veteran also is advised that he has the right to submit additional evidence and argument with respect to this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded prompt treatment. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Edward G. Lent 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.