Citation Nr: 20022089 Decision Date: 03/30/20 Archive Date: 03/30/20 DOCKET NO. 16-48 860 DATE: March 30, 2020 REMANDED Entitlement to service connection for a neck condition is remanded. Entitlement to service connection for left index finger (claimed as left middle finger injury) is remanded. Entitlement to service connection for breathing problems is remanded. REASONS FOR REMAND The Veteran served during Peacetime and the Gulf War era on active duty from January 1982 to September 1993 and from October 2001 to April 2003. These matters are before the Board of Veterans’ Appeals (Board) on appeal of a March 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office in St. Petersburg, Florida (RO). The Veteran was afforded a hearing before the undersigned Veterans Law Judge in August 2019. A transcript of the hearing has been associated with the Veteran’s electronic claims file. The Veteran asserts that his left index finger condition and breathing problems are related to military service. At an August 2019 Board hearing, the Veteran testified that he injured his left index finger in service while working on a tank and that he currently experiences pain. The Veteran also testified that his breathing problems began after training in the desert during military service and that he has had breathing problems since. The Veteran asserts that his neck condition is due to an injury sustained while doing sit ups during physical training in service. 1. Entitlement to service connection for left index finger (claimed as left middle finger injury) is remanded. The Veteran was afforded a VA examination for hand and finger conditions in December 2013. The Veteran was diagnosed with an old distal trauma middle distal finger, left prior to March 1994. The Veteran reported an injury to his finger in 1988 which required hospitalization. The Veteran complained of sharp pain sensitivity while typing. In determining that the Veteran’s condition impacts his ability to work, the examiner noted an x-ray showing mild degenerative changes at the second and third MCP joints, “a common distribution for CPPD, perhaps associated with hemochromatois arthropathy.” The examiner also noted limitation of motion of the right index and long fingers unrelated to the Veteran’s claim. The examiner determined that the Veteran’s condition is unrelated to military service, stating that “it is skeptical that Left finger injury occurred in service for these reasons: The injury was documented at Re-enlistment 1994. The subjective history of injury at age 29 would place injury at 1988 or during service, yet there is no evidence of treatment. The evidence does not clearly state injury as "Line of Duty", which is usual verbiage.” The Veteran’s STRs show that the Veteran suffered a crush injury to his left third finger in 1988. The Veteran was diagnosed with a fracture, distal left and was hospitalized for three days. Upon hospitalization the Veteran was noted to have an open fracture and nail bed laceration, which was treated with irrigation and debridement of the wound. The STRs note multiple follow up visits to monitor the Veteran’s injury. Once VA undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The December 2013 VA examination is based on the inaccurate factual premise that the STRs contain no evidence of any treatment related to a left finger injury during the Veteran’s active service. This premise is explicitly contradicted by the STRs which show that the Veteran was hospitalized after a left finger injury and received follow up care. Additionally, since the time that the VA opinion was obtained, the U.S. Court of Appeals for the Federal Circuit recently found that the term "disability" as used in 38 U.S.C. § 1110 "refers to the functional impairment of earning capacity, not the underlying cause of said disability," and held that "pain alone can serve as a functional impairment and therefore qualify as a disability." Saunders v. Wilkie, 886 F.3d. 1356 (Fed. Cir. 2018). Here, there have been complaints of flare ups of pain and pain sensitivity while typing. The VA examination noted that the Veteran’s condition impacts his ability to work. In light of Saunders v. Wilkie, a remand is needed to schedule the Veteran for a physical examination as pain alone can serve as a functional impairment and therefore qualify as a disability. If such pain does result in functional impairment then it must be determined if such functional impairment is related to the Veteran's military service. 2. Entitlement to service connection for breathing problems is remanded. The Veteran asserts that his breathing problems began during a 30 day training exercise in the desert in 1986 and that he has experienced breathing problems since. See August 2019 Hearing Transcript. The Veteran further asserts that he is receiving treatment from a private specialist and that he has been diagnosed with hay fever and allergy induced asthma. The Veteran’s STRs show symptoms including nasal congestion; mouth breathing; and chest pain, back pain, stomach pain, shortness of breath and headaches when running. The Veteran was diagnosed at various times with seasonal allergies. A history of shortness of breath with onset in 1986 and bronchitis was noted. STRs also note a possible asthmatic attack. The Veteran reported ear, nose, and throat trouble, shortness of breath, and hay fever in a Report of Medical history at separation, and the examiner noted year round allergies with shortness of breath during peak allergy season. The Veteran’s private treatment records show a diagnosis of allergic rhinitis. See Medical Treatment Records – Non-Government Facility received October 2013. As the evidence of record indicates that the Veteran’s current disability may be associated with an in service injury or disease, the VA duty to assist is triggered. See McClendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The Board finds that a remand is necessary to provide the Veteran with a VA examination to develop his claim. The Board notes that the Veteran claims onset of his breathing problems in 1986, and that STRs covering this period have not been associated with the file. These records should be obtained on remand. 3. Entitlement to service connection for a neck condition is remanded. STRs revealed in a June 1992 record that the Veteran complained of limited mobility and pain for three months after feeling a pop in his neck while doing sit ups. However, the Veteran’s May 1993 separation examination is silent for any neck condition, and the Veteran did not report neck pain, back pain, painful joints, or arthritis at separation from active duty. In addition, on the Veteran's separation examination the physician noted the Veteran’s reports of allergies, shortness of breath, acne, high blood pressure, right shoulder pain, and a fractured middle finger, but no reports of neck pain or a neck condition. Further, on the Veteran's Army Reserve enlistment exam in March 1994, the Veteran's neck was found to be normal and the Veteran answered in the negative to any bone, joint or other deformity, as well as negative to whether he had any illness or injury other than those already noted. The Veteran was afforded a VA examination in December 2013. Diagnostic testing revealed a diagnosis of cervical spine degenerative disc disease C5-6 and degenerative type spondylolisthesis C4-5. The examiner opined that the degenerative disc disease is less likely as not caused by injury in service. The examiner explained that given the Veteran’s age, mild degenerative disc disease and degenerative spondylolisthesis of the type confirmed by the Veteran’s x-ray is more likely than not caused by age and not strain of sit-ups during active duty service. The examiner further explained that, upon review of the Veteran’s STRs, no true neck trauma in service was identified to cause degenerative change. At the August 2019 Board hearing, the Veteran reported that he was treated for neck pain at an emergency room in 1994 or 1995 (hospital in Hinesville, Georgia). Accordingly, efforts should be undertaken to obtain the identified records. The matters are REMANDED for the following action: 1. Obtain service treatment records for the Veteran's first period of active service in the Army, specifically the period from January 1982 to December 1988. These efforts must continue until service treatment records for this period of service are obtained or it is concluded that the records sought do not exist or that further efforts to obtain those records would be futile. If the records cannot be obtained, the Veteran must be notified in accordance with 38 C.F.R. § 3.159(e) and a formal finding of unavailability must be associated with the claims file. 2. Undertake appropriate efforts to obtain private treatment records (emergency room records from 1994 or 1995 from a hospital in Hinesville, Georgia) identified by the Veteran at the August 2019 Board hearing. 3. Once the development above has been completed, schedule the Veteran for VA examinations for his breathing problem and left index finger condition. All indicated tests and studies should be accomplished, and all clinical findings should be reported in detail. For each diagnosed disorder, the examiners should opine as to whether it is at least as likely as not (i.e., 50 percent or greater probability) that the disorder is causally or etiologically due to service. Regarding the Veteran’s left index finger, if no such disorder is identified, the examiner must indicate whether the Veteran's reported left index finger pain causes any functional impairment. If it is determined the Veteran's left index finger pain causes functional impairment, please opine as to whether it is at least as likely as not (a 50 percent or greater probability) that such functional impairment is etiologically related to the Veteran's active duty service. The examiner should specifically address the Veteran's report that he injured his finger while repairing a tank and that he has experienced left index finger symptoms over the years since that time. A fully articulated medical rationale for each opinion expressed must be set forth in the medical report. The medical professional should discuss the particulars of this Veteran's medical history and the relevant medical science that applies to this case, including the use of any medical literature, which may reasonably explain the medical guidance in the study of this case. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Bynum, Associate Counsel 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.