Citation Nr: 20026059 Decision Date: 04/15/20 Archive Date: 04/15/20 DOCKET NO. 19-28 963 DATE: April 15, 2020 REMANDED Entitlement to service connection for a right hand disability evidenced by numbness and tingling along the ulnar nerve distribution (also claimed as right hand ring finger and fifth finger numbness and tingling), to include as secondary to service-connected disabilities is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1955 to February 1957. The issue comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2018 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the Veteran’s service treatment records (STRs) are not of record. An April 2008 Memorandum on the Finding of Unavailability indicates that the Veteran’s STRs were destroyed in a fire at the National Personnel Records Center (NPRC) in St. Louis, Missouri, in 1973. In cases where records were once in the hands of the government and are lost, the Board has a heightened obligation to explain its findings and conclusions and to consider the benefit-of-the-doubt rule carefully. Cromer v. Nicholson, 455 F.3d 1346, 1351 (Fed. Cir. 2006); O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The case law does not, however, lower the legal standard for proving a claim for service connection, but rather increases the Board’s obligation to evaluate and discuss in its decision all the evidence that may be favorable to the appellant. Russo v. Brown, 9 Vet. App. 46 (1996). Missing STRs do not obviate the need for the Veteran to have still competent and credible evidence supporting his claim for service connection by showing he has the claimed disability and suggesting there is a correlation (“nexus”) between his claimed condition and his military service. Milostan v. Brown, 4 Vet. App. 250, 252 (1993) (citing Moore v. Derwinski, 1 Vet. App. 401(1991) and O’Hare, 1 Vet. App. at 367). The issue was previously before the Board in January 2020 and was remanded for a medical examination. The Board, however, finds that the examination afforded to the Veteran in March 2020 is inadequate for adjudication purposes. Thus, there has not been substantial compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998) This appeal has been advanced on the Board’s docket pursuant to 38C.F.R. §20.900 (c) (2018). 38U.S.C. §7107 (a)(2) (2012). Entitlement to service connection for a right hand disability evidenced by numbness and tingling along the ulnar nerve distribution (also claimed as right hand ring finger and fifth finger numbness and tingling), to include as secondary to service-connected disabilities is remanded. The Veteran seeks service connection for a right hand disability. In a November 2017 correspondence, he avers that his right hand numbness and tingling along the ulnar nerve is caused by his sleeping position. His service-connected right foot disability makes him lie on his left side, causing the nerve pain in his right hand/arm. The Board notes that although the Veteran has not attested that his right hand disability started in service or a result of any incidents therein, the record contains a reported history to his private physician, in November 2016, indicating that “his usual hand numbness at these fingers had been present for over the last 60 plus years due to nerve injury.” During a clinical evaluation dated in August 2017, the Veteran reported to his private physician that he had “a bone spur on the 5th metacarpal removed approximately 60-65 years ago, and his physician at that time told him that a ‘nerve was cut’ during the procedure. He has had numbness on the ulnar aspect of the hand and small finger since that time.” The latter part of this time frame puts the Veteran in service. Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2017). Secondary service connection may also be established for a nonservice-connected disability which is aggravated by a service-connected disability. 38 C.F.R. § 3.310(b) (2019); see Allen v. Brown, 7 Vet. App. 439, 448 (1995). In January 2020, the Board remanded this case to obtain an adequate opinion regarding the aggravation prong of a secondary service connection claim because prior examiners had concluded that there was no permanent aggravation of the Veteran’s right hand disability by his service- connected disabilities. Aggravation of a service connected disability is not required to be permanent for secondary service connection to be established. Ward v. Wilkie, 31 Vet. App. 233 (2019). After the January 2020 remand, the Veteran was afforded VA examination in March 2020. The examiner provided a negative nexus and stated as a rationale: It is less likely the [V]eteran suffered right hand injury military service as he does not recall an injury to the right hand as he stated surgery right hand to remove bony growth was before the military. There is no evidence that the military permanently aggravated the [V]eteran’s ulnar neuropathy right hand. His sleeping did not cause any permanent nerve damage [to the] right hand as he responded to physical therapy. His sleeping position was related to relieving some pain low back. This causes some palmar flexion right hand under his left shoulder for support sleeping on the left side. This position of hand would affect the median nerve more than the ulnar nerve in hand. He does apply compression pressure right elbow region when using help to get up from the table along with the use of a cane for the other hand. I cannot determine if there was any permanent aggravation to the right elbow ulnar nerve without resort to speculation. First dorsal interossei atrophy right hand could be related to ulnar neuropathy, but there is no way to prove it was related to the [V]eteran describing pressure on the ulnar nerve at the elbow when getting up from the table. The veteran stated the ulnar nerve was cut during surgery right hand before the military service, which adds to the complexity of the claimed right hand disability. I cannot determine the cause for his cubital tunnel syndrome right elbow (ulnar nerve) found on EMG 2017 without resort to speculation. The right hand disability was not caused by or permanently aggravated by the result of service-connected left ankle arthritis, lumbosacral degenerative disease, right hip arthroplasty, left foot pes planus and right lower extremity radiculopathy. The Board again finds that the examiner’s findings inadequate. The examiner’s use of the word “permanent” in his rationale to describe any aggravation is inadequate. The proper standard in an aggravation inquiry is not whether there was “permanent worsening” but rather “any increase” in the disability. Ward v. Wilkie, 31 Vet. App. 233 (2019). A remand is again warranted as there is no adequate opinion on record. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Accordingly, the matter is REMANDED for the following action: 1. Provide the Veteran’s claims file to a qualified examiner so that a supplemental opinion may be provided for his right hand disability. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must acknowledge the review of these materials. A new examination of the Veteran is only required if deemed necessary by the clinician. Although an independent review of the claims file is required, the Board calls the clinician’s attention to: a. November 2016 notes by his private physician indicating that the Veteran’s “usual hand numbness at these fingers had been present for over the last 60 plus years due to nerve injury.” b. November 2017 correspondence wherein the Veteran reports right hand numbness and tingling along the ulnar nerve is caused by his sleeping position. c. August 2017 notes by his private physician, indicating the Veteran reports of “a bone spur on the 5th metacarpal removed approximately 60-65 years ago, and his physician at that time told him that a ‘nerve was cut’ during the procedure. He has had numbness on the ulnar aspect of the hand and small finger since that time.” The examiner must then provide an opinion as to: a. Whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s right hand disability began during active service, or is related to an incident of service. b. Whether it is at least as likely as not (at least a 50 percent probability) that the Veteran’s right hand disability was proximately due to or the result of service-connected left ankle arthritis, lumbosacral degenerative disease, right hip arthroplasty, left foot pes planus and right lower extremity radiculopathy. c. Whether it is at least as likely as not that the Veteran’s right hand disability has been aggravated (increased in severity beyond its natural progression) by his service-connected left ankle arthritis, lumbosacral degenerative disease, right hip arthroplasty, left foot pes planus and right lower extremity radiculopathy. The examiner is advised that the standard is whether there is “any increase” in the disability, and that a requirement that aggravation be permanent is inadequate based upon precedent from the U. S. Court of Appeals for Veterans Claims. 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 this and provide a rationale for such a conclusion. 2. Then, readjudicate the claim. If any decision is adverse to the Veteran, issue a supplemental statement of the case, and allow the applicable time for response. Then, return the case to the Board. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Stevens, 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.