Citation Nr: 20052500 Decision Date: 08/06/20 Archive Date: 08/06/20 DOCKET NO. 10-28 065 DATE: August 6, 2020 REMANDED Entitlement to service connection for right hand condition is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Navy from July 1978 to July 1982. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2008 rating decision issued by a Regional Office (RO) of the Department of Veterans Affairs (VA). In November 2016, the Board denied the Veteran’s claim for entitlement to service connection for right hand disability. The Veteran appealed the Board’s decision to the U.S. Court of Appeals for Veterans Claims (Court). In a September 2018 Order, the Court granted a Joint Motion for Partial Remand (Joint Motion), vacating the Board’s November 2016 decision with regard to the issue addressed herein, and remanded the matter for readjudication. In December 2018, the Board remanded this matter for further development consistent with the Joint Motion. The December 2018 Board remand found that the Veteran should be afforded another VA examination to determine whether he has a current disability of the right hand and whether that disability is causally related to an in-service injury. The Board noted that Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) requires that the examiner determine whether pain in the right hand results in functional impairment such that if may qualify as a disability in the event that an underlying diagnosis is not provided. The remand instructed that the Veteran be scheduled for an examination with an appropriate clinician to determine the nature and etiology of any diagnosed disorder or functional limitation of the right hand. It further instructed that the examiner must determine whether the Veteran had a diagnosed disorder of the right hand, or if there was no diagnosed disorder, if he had functional limitations of his right hand stemming from pain. If there was either a diagnosed disorder of the right hand or functional limitations due to pain of the right hand, the examiner was to opine whether it is at least as likely as not related to an in-service injury, event, or disease, including the right fourth metacarpal fracture in 1981. The Veteran was afforded a VA Hand and Finger Conditions examination in September 2019. The VA examiner noted the Veteran was diagnosed with healed fracture of right fourth metacarpal in 1981 and diagnosed the Veteran with tendonitis of the right hand. The VA examiner opined that the condition claimed was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. She explained that the Veteran’s service treatment records (STRs) document a right fourth metacarpal fracture on September 29, 1981 and that subsequent STRs show follow up management of said fracture. An STR documented by an orthopedic doctor on December 31, 1981, stated “well healed fracture with normal movement, good rotation, and normal neuro exam.” The Veteran’s separation from service examination in June 1982 noted normal upper extremity. The examiner noted that the Veteran was first treated for a right hand complaint post-service in August 2008, more than 20 years after his last in-service treatment for the condition. At that time, the Veteran was evaluated by a hand specialist and rheumatologist without cause found of hand pain diagnosed as right hand pain. The Veteran was then sent to occupational therapy and pain management. As part of the September 2019 VA examination, x-rays were taken of the Veteran’s right hand. No acute bony pathology was found in these x-rays. The VA examiner concluded that there was no causal relationship between the Veteran’s in-service injury related to his right hand fourth metacarpal fracture and his current right hand disability. The VA examiner explained that current medical literature supports metacarpal fractures have excellent outcomes with conservative treatment (casting), which the Veteran’s available STRs document. Although the September 2019 VA examiner found the Veteran had a current diagnosable disability of the right hand, being tendonitis, the rationale provided as to whether there is a direct causal relation between his active service and his current right hand disability is inadequate. The examiner neglected to address the private nexus opinion dated May 2010 provided by K.F., M.D., which found there was more likely than not a direct relationship between the September 1981 metacarpal fracture and his current right hand pain and that his current medical condition “more likely than nor originated while the patient served in the military.” See Medical Treatment Record – Government Facility, received by VA in July 2010. The examiner also did not address a lay statement from the Veteran in May 2009, indicating that he has experienced pain in his right hand since the cast for the metacarpal fracture he incurred in September 1981 was removed, as well as a lay statement from the Veteran’s mother in May 2010, indicating that since separation from the military, the Veteran has continuously been on medication for his right hand condition. See NOD, received by VA in May 2009; and Buddy/Lay Statement, received by VA in May 2010. Accordingly, on remand the Veteran should be afforded an addendum opinion to adequately address the nature and etiology of the Veteran’s right hand condition. The matters are REMANDED for the following action: 1. Send the claims file to a qualified examiner to obtain an addendum opinion as to the nature and etiology of the Veteran’s right hand disability. All pertinent evidence of record must be made available to and reviewed by the clinician. If the clinician determines that an examination is necessary, one should be scheduled. After reviewing the record, the examiner is asked to determine whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s current right hand condition is related to an in-service injury, event, or disease, including the metacarpal fracture he incurred in September 1981. In providing an answer to this question, the examiner is advised that he/she must address the private nexus opinion dated May 2010 provided by K.F., M.D., the Veteran’s lay statement that he has experienced pain in his right hand since the cast for the metacarpal fracture was removed, and the Veteran’s mother’s lay statement that since separation from service the Veteran has continuously been on medication for his right hand condition. If it is less likely that the Veteran’s current right hand disability is related to his active duty service, the examiner should explain why this is the case, with full consideration of the Veteran’s own reported history. The examiner must provide any and all opinions as to etiology in the form of a probability and must provide a complete rationale for any opinion expressed. The Board recognizes the practical difficulties of scheduling an examination in view of the COVID-19 epidemic, and requests flexibility and understanding in affording the Veteran an opportunity for an examination if an examination is deemed necessary. If a VA examination proves not feasible for any reason, the claims file should still be reviewed by an appropriate professional for the purpose of providing the requested opinions. 2. After completing the above development, and any other development deemed necessary, readjudicate the issue on appeal. If any benefit sought on appeal remains denied, provide an additional supplemental statement of the case to the Veteran and his representative, and return the appeal to the Board for appellate review, after the Veteran and his representative have had an adequate opportunity to respond. ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Fairlie, 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.