Citation Nr: 21062895 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 15-15 209 DATE: October 12, 2021 REMANDED Entitlement to service connection for a bilateral hand disorder, claimed as bilateral hand pain and numbness, is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1990 to July 1996. This matter comes before the Board of Veteran's Appeals (Board) from a June 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in April 2020, when the Board denied the claim. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In May 2021, the Court granted a Joint Motion for Remand (JMR) wherein the parties requested vacatur of the April 2020 Board decision and for the matter to be remanded back to the Board for development. The matter is again before the Board. In July 2021, the Veteran submitted a lay statement wherein he asserted he had been diagnosed with CTS (carpal tunnel syndrome), bilaterally, and noted he was submitting medical evidence in support of the statement. See statement of June 2021, associated with the claims file in July 2021. It is noted that the statement associated with the claims file consists of two pages and did not include any additional medical records. Additionally, the Veteran requested the Board to hold his case for the remainder of the 90-day period following the June 2021 notification that his case had been received by the Board following the Court's remand, as he would submit evidence and/or argument in favor of his claim. See waiver of opportunity to submit additional evidence of argument and additional evidence response form, associated with he claims file in July 2021. The 90-day period has since expired. It is noted that although the Veteran submitted lay statements in favor of his claim, no additional medical evidence was associated with the claims file. Upon remand, the RO must attempt to obtain this additional evidence or provide the Veteran opportunity to submit it. The Board has recharacterized the claim as it appears on the title page of this decision in view of the Veteran's statement that he has been diagnosed with CTS, which may be related to the claim on appeal. See Clemmons v. Shinseki, 23 Vet. App. 1 (2009). Entitlement to service connection for a bilateral hand disorder, claimed as bilateral hand pain and numbness, is remanded. The Veteran seeks service connection for a bilateral hand disorder, claimed as bilateral hand pain and numbness. In favor of his claim, the Veteran asserts that he had problems with his hands in service. He explained that he was not diagnosed with a condition but was prescribed Motrin and was told to rub some ointment. See hearing transcript pages 3 5. In July 2018, the Board remanded the matter for an examination and medical opinion pursuant to McLendon v. Nicholson, 20 Vet. App. 79 (2006), in view of the testimony provided at the September 2017 hearing and the service treatment records (STRs) which noted a complaint for joint pain during service. See STRs dated December 1993- noting finger joint pain. In April 2019, pursuant to the Board remand directives, the Veteran was administered a Hand and Finger Conditions Disability Benefits Questionnaire (Hand DBQ). The examiner determined that there was no diagnosis and noted that the physical examination and the x-rays were normal. Additionally, the examiner noted in the remark section of the report that there was pain on passive range of motion testing on all fingers but did not note whether the pain resulted in functional loss. See Hand DBQ of April 2019, including remarks. No medical opinion regarding the Veteran's bilateral hand pain and numbness was rendered. In April 2020, the Board denied the Veteran's claim, and that decision was appealed to the Court. As noted previously, in May 2021, the Court granted a JMR by the parties. In the JMR the parties agreed that the Board's decision needed to be vacated as it relied on the inadequate April 2019 Hand DBQ that did not comply with Correia v. McDonald, 28 Vet. App. 158 (2016), and because no medical opinion addressing the Veteran's bilateral hand numbness and pain was rendered, as requested in the July 2018 Board remand. Accordingly, the Board finds the matter must be remanded for a new examination that complies with Correia, and for a medical opinion that addresses the likely etiology of the Veteran's condition, pursuant to the JMR granted by the Court and for Stegall compliance with the July 2018 Board remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). Additionally, the Board clarifies that a medical opinion must be obtained addressing the Veteran's claimed bilateral hand numbness and pain, even if such symptoms do not correspond to a diagnosis. Pertinent to the present case, the Board notes that in Saunders v. Wilkie, 886 F.3d 1356 (2018), the Federal Circuit 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." In other words, where pain alone results in functional impairment, even if there is no identified underlying diagnosis, it can constitute a disability. Therefore, if the additional medical records obtained pursuant to this remand do not show a diagnosis related to the Veteran's bilateral hands, a medical opinion must still be obtained addressing whether the Veteran's bilateral hand numbness and pain results in functional impairment, pursuant to Saunders, and addressing the likely etiology of the condition. Further, it is noted that although the Hand DBQ of April 2019 notes the Veteran reported flare-ups of his bilateral hand condition, no sufficient information as to the reported flares was obtained, to include an estimate in terms of range of motion of any additional functional loss the Veteran may experience during a flare or following repetitive use. Thus, upon remand, the examiner must obtain information from the Veteran regarding the severity, frequency, duration, characteristics, and/or functional loss related to such flare-ups. Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017) (outlining VA examiners' obligation to elicit information regarding flare-ups of a musculoskeletal disability if the examination is not conducted during such a flare-up, and to use this information to characterize additional functional loss during flare-ups). Finally, it is noted that the Veteran submitted a statement describing how he injured his hands while in service; to include his service duties and their effects on his hands. See statement of September 2021, associated with the claims file in October 2021. His spouse also submitted a statement noting how she had witnessed the Veteran complaining of pain and numbness in his hands while in service. See statement of September 2021, associated with the claims file in October 2021. The medical opinion addressing the likely etiology of the Veteran's bilateral hand condition must also consider and address these statements. The matter is REMANDED for the following actions: 1. Send the Veteran a letter inviting him to submit the medical records referenced in his statement of July 2021 pertaining to a CTS diagnosis, or to otherwise identify the medical care provider that rendered the diagnosis and to provide any necessary authorizations so that VA may assist him in obtaining the records. If the Veteran provides any authorization for records, obtain, and associate such records with the claims file. All efforts to obtain outstanding medical records, to include any notice of unavailability, must be noted in the claims file. 2. Associate with the claims file any outstanding VA medical records. 3. After outstanding VA medical records have been associated with the claims file, and the Veteran has been provided opportunity to submit or identify any additional outstanding records, schedule the Veteran for a VA examination pertaining to his bilateral hand disabilities and obtain a medical opinion addressing the likely etiology of the conditions. a. The examination report must include the following: i. The examiner should report all range of motion measurements in degrees for both hands. To the extent possible, range of motion for the hands should be tested actively and passively, in weight-bearing and nonweight-bearing, and after repetitive use. If any of the above-mentioned range of motions cannot be tested/rendered, the examiner should explain why such testing is unnecessary or why he or she is unable to do so. Correia v. McDonald, 28 Vet. App. 158 (2016). ii. The examiner should note in the report sufficient information as to the severity, frequency, duration, characteristics, and/or functional loss the Veteran may experience with any flares of his condition or following repetitive use over time, to include an estimate of the functional loss he may experience in terms of range of motion measurements. Sharp v. Shulkin, 29 Vet. App. 26, 3436 (2017). b. The examiner is asked to address the following in the medical opinion rendered: i. Clarify whether the Veteran has a current diagnosis and whether such diagnosis manifests with symptomatology of bilateral hand numbness and pain. It is noted that the Veteran asserted he has been diagnosed with CTS. See statement of July 2021. ii. If the Veteran's symptomatology of bilateral hand numbness and pain is not related to a specific diagnosis, the examiner is asked to opine whether the Veteran's symptomatology results in functional impairment pursuant to Saunders v. Wilkie, 886 F.3d 1356 (2018). iii. If there is a diagnosed disorder, disease, condition, or disability of the hands OR functional limitations due to pain, the examiner must opine as to whether the disability or functional limitation is at least as likely as not (50 percent likelihood or greater) related to an in-service injury, event, or disease. iv. In rendering the requested opinion the examiner is asked to consider and address the Veteran's and his spouse's statements regarding the onset and continuity of his symptoms. See hearing transcript, and statements associated with the claims file in July 2021 and October 2021. The examiner must also consider the STRs notation of joint pain in December 1993. The examiner is asked to provide a complete rationale for all opinions expressed. If the examiner cannot provide the requested opinion(s) without resorting to speculation, the report should expressly indicate this, and the examiner should explain why an opinion cannot be provided without resorting to speculation. If the inability to provide an opinion is the result of a need for additional information, the physician must identify the additional information needed. 4. After completing the above requested actions, and any additional notification and/or development deemed warranted, readjudicate the issue on appeal. If the benefit sought on appeal remains denied, furnish to the Veteran and his representative an appropriate supplemental statement of the case that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Gonzalez-Maldonado 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.