Citation Nr: 21064033 Decision Date: 10/18/21 Archive Date: 10/18/21 DOCKET NO. 17-46 784 DATE: October 18, 2021 ORDER Entitlement to service connection for a right hand disability is denied. REMANDED Entitlement to service connection for a back disability is remanded. Entitlement to service connection for an ankle disability is remanded. FINDING OF FACT The competent evidence of record does not show that the Veteran has a currently diagnosed right hand disability. CONCLUSION OF LAW The criteria for entitlement to service connection for a right hand disability have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 5103(a), 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309, 3.317 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1973 to August 1974. Sadly, the Veteran passed in July 2020, during the pendency of his appeal. The AOJ has recognized the Veteran's surviving spouse on a substituted basis. 38 U.S.C. § 5121A; Breedlove v. Shinseki, 24 Vet. App. 7 (2010); December 2020 Correspondence. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2017 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran timely submitted a notice of disagreement (NOD) and in August 2017, the RO issued a statement of the case (SOC). In September 2017 the Veteran filed a substantive appeal. The issues on appeal were previously before the Board in March 2019 and were remanded for additional evidentiary development, which has been substantially completed. Stegall v. West, 11 Vet. App. 268, 271 (1998). As a preliminary matter, the Board acknowledges that the RO deemed the Veteran's STRs unavailable after exhaustive efforts to secure them were unsuccessful. In cases where the STRs are unavailable, the Board has a heightened duty to assist the Veteran in the development of his claim. Cuevas v. Principi, 3 Vet. App. 542 (1992). 1. Entitlement to service connection for a right hand disability is denied. The appellant is seeking service connection for a right hand disability. Specifically, she contends that the Veteran had a right hand disability related to service. See May 2016 Claim. A veteran is entitled to VA disability compensation if there is a current disability resulting from a personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C. § 1131. Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d). As a layperson, the Veteran is competent to report the symptoms he has experienced. See Layno v. Brown, 6 Vet. App. 465 (1994). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The competence of lay testimony depends on the nature of the condition. See Young v. McDonald, 766 F.3d 1348, 1353 (Fed. Cir. 2014). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence, which it finds to be more persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Having reviewed the entirety of the record and based on the applicable legal criteria, the Board finds that service connection for a right hand disability is not warranted because the Veteran did not have current diagnosis of a right hand disability. Specifically, although the Veteran claimed entitlement to service connection for a right hand disability in his May 2016 Claim, March 2017 NOD, and September 2017 VA Form 9, the record does not contain lay statements or treatment records noting complaints, treatment, or a diagnosis of a right hand condition during the appeal period or persistent symptoms since service. See, e.g., December 2016 Statement in Support of Claim. The record also does not show any statements from the Veteran or the appellant that the Veteran's disability or any right hand pain resulted in decreased range of motion or an impairment of earning capacity. The Appellant has also not indicated there are any additional records that VA should seek to obtain on her behalf. As such, the record does not show that the Veteran had a currently diagnosed disability. Where the evidence does not support a finding of current disability upon which to predicate a grant of service connection, there can be no valid claim for that benefit. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Degmetich v. Brown, 104 F.3d 1328 (1997). In reaching this determination, the Board has considered that the Veteran was not afforded a VA examination/opinion for his disability and that STRs are unavailable. On the facts of this case, however, such an examination is not required. VA will provide a medical examination or obtain a medical opinion if the evidence indicates the existence of a current disability or persistent or recurrent symptoms of a disability that may be associated with an injury, event, or disease in service, but the record does not contain sufficient medical evidence to decide the claim. 38 U.S.C. § 5103(d)(2); 38 C.F.R. § 3.159(c)(4)(i); McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, the claim does not meet these requirements for obtaining a VA medical opinion, as there is no evidence of a current right-hand disability, or persistent or recurrent symptoms of a right hand disability. Based on the foregoing, there is no reasonable possibility that a nexus opinion could substantiate the claim. Accordingly, the duty to obtain a VA opinion is not triggered. In light of the above, the Board finds that the preponderance of the evidence is against the appellant's claim for service connection for a right hand disability. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the claim, that doctrine is not helpful to this claimant. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). REASONS FOR REMAND 1. Entitlement to service connection for a back disability is remanded. 2. Entitlement to service connection for an ankle disability is remanded. The appellant is seeking service connection for a back and ankle disability. Specifically, before he passed away, the Veteran contended that he had current back and ankle pain during and since service. See December 2016 Statement in Support of Claims. Following a review of the evidence of record, the Board finds that further development is required to decide these claims. Here, the Veteran's statements suggest that the Veteran may have had current back and ankle disabilities due to his service. As such, medical opinions regarding the etiology of the Veteran's disabilities are necessary, and a remand is warranted. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matters are REMANDED for the following action: 1. The AOJ should ensure that any outstanding and relevant VA treatment records relating to the Veteran's disabilities are of record. 2. Thereafter, arrange for the Veteran's electronic claims file, including a copy of this remand, to be reviewed by a medical professional to determine the nature and etiology of the late Veteran's back disability. Please note that a physical examination cannot be conducted due to the Veteran's passing in July 2020. Please also note that the RO has indicated that STRs are unavailable. The examiner should not base his/her opinion on a lack of documentation of inservice treatment. The examiner is advised that the Veteran is competent to report symptoms and injuries, as well as diagnoses provided to him by physicians. If the Veteran's reported history is discounted, the examiner should provide a reason for doing so. A veteran's statements may not be discounted solely on the basis of the lack of confirmation in the STR's. After reviewing the claims file, the examiner should opine as to the following question: (A) Identify any back disability during the pendency of the appeal. In the event that the examiner determines no diagnosis is appropriate, the examiner is reminded that pain causing functional loss is a "disability" for VA compensation purposes and should be treated as such. In doing so, the examiner should address the Veteran's lay assertions in his December 2016 Statement in support of claim. (B) For any diagnosed back disability, is at least as likely as not (a fifty percent probability or greater) that the disability was related to the Veteran's active duty service. In doing so, the examiner should address the Veteran's lay assertions in his December 2016 Statement in support of claim. The examiner should provide a rationale for all opinions expressed. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and whether there is additional evidence that would permit the opinion to be provided. 3. Thereafter, arrange for the Veteran's electronic claims file, including a copy of this remand, to be reviewed by a medical professional to determine the nature and etiology of the late Veteran's ankle disability. Please note that a physical examination cannot be conducted due to the Veteran's passing in July 2020. Please also note that the RO has indicated that STRs are unavailable. The examiner should not base his/her opinion on a lack of documentation of inservice treatment. The examiner is advised that the Veteran is competent to report symptoms and injuries, as well as diagnoses provided to him by physicians. If the Veteran's reported history is discounted, the examiner should provide a reason for doing so. A veteran's statements may not be discounted solely on the basis of the lack of confirmation in the STR's. After reviewing the claims file, the examiner should opine as to the following question: (A) Identify any ankle disability during the pendency of the appeal. In the event that the examiner determines no diagnosis is appropriate, the examiner is reminded that pain causing functional loss is a "disability" for VA compensation purposes and should be treated as such. In doing so, the examiner should address the Veteran's lay assertions in his December 2016 Statement in support of claim. (B) For any diagnosed ankle disability, is at least as likely as not (a fifty percent probability or greater) that the disability was related to the Veteran's active duty service. In doing so, the examiner should address the Veteran's lay assertions in his December 2016 Statement in support of claim. The examiner should provide a rationale for all opinions expressed. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and whether there is additional evidence that would permit the opinion to be provided. (Continued on the next page) 4. After completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the issues on appeal. If the benefits sought on appeal remain denied, furnish to the appellant and her representative an appropriate supplemental statement of the case (SSOC) 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 M. Kaufer, 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.