Citation Nr: 21064999 Decision Date: 10/22/21 Archive Date: 10/22/21 DOCKET NO. 17-30 790 DATE: October 22, 2021 REMANDED The issue of entitlement to an initial compensable evaluation for the period prior to December 14, 2019, and in excess of 10 percent disabling for the period thereafter, for service-connected right fourth finger fracture, hand crush injury, is remanded. The issue of entitlement to an initial compensable evaluation for service-connected scar right hand, dog bite, is remanded. The issue of entitlement to service connection for a back disability is remanded. The issue of entitlement to service connection for a hip disability, to include as secondary to a back disability, is remanded. The issue of entitlement to service connection for residuals of a chest injury, to include scar tissue, is remanded. The issue of entitlement to service connection for residuals of viral syndrome, to include memory loss, is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1974 to June 1980, and from April 1981 to December 1984. In March 2019, the Board remanded the issues on appeal for additional development. For the reasons outlined below, the Board finds that remand is again needed in this matter. Following the March 2019 Board remand, the evaluation for the service-connected right fourth finger fracture, hand crush injury, was increased from a noncompensable disability rating to a 10 percent disability rating, effective December 14, 2019. See Rating decision, May 2020. The increase is reflected in the issues on appeal. The Board notes that the Veteran filed an application for compensation for, inter alia, "chest injury and stomach problems," in May 1987. However, in September 1987, it appears that the RO found that the "claimant failed to prosecute claim" and that the "evidence of record is insufficient for rating purposes." See Deferred or Confirmed Rating Decision, September 1987. Nevertheless, the Board does not review the issue of entitlement to service connection for residuals of a chest injury, to include scar tissue, as one to reopen, as relevant service treatment records were added to the claim file thereafter. See STRs, January 2015; and 38 C.F.R. § 3.156 (c). 1. Entitlement to an initial compensable evaluation for the period prior to December 14, 2019, and in excess of 10 percent disabling for the period thereafter, for service-connected right fourth finger fracture, hand crush injury. 2. Entitlement to an initial compensable evaluation for service-connected scar right hand, dog bite. The Board finds that additional development is needed prior to final adjudication of the issues on appeal. First, regarding the claim for an increased evaluation for the service-connected right fourth finger fracture, hand crush injury, the Board finds that a new VA examination is needed. The Board acknowledges the December 2019 VA examination, but finds it to be inadequate. For example, for the initial range of motion testing, the December 2019 VA examination report notes pain causing functional loss in right finger flexion and extension. However, the report does not address in degrees of range of motion where the pain begins. In addition, the Board notes that the Veteran has indicated that his hand hurts, not just his finger. For example, in a statement accompanying the VA Form 9, he states: "My hand hurts [sic] Why do they just concentrate on a finger? Its [sic] my hand Hurts, swells, and at times can't lift. Why just the finger?" However, the December 2019 VA examination report indicates that there is no evidence of pain with the use of the right hand. The Board seeks clarification upon remand. As the right hand/finger is being reevaluated, the Board will defer adjudication of the right hand scar pending further development. 3. Entitlement to service connection for a back disability. In addition, the Board finds that the following development is needed upon remand. First, regarding the claimed back disability, the Board finds that a new VA opinion is needed. In the March 2019 remand, the Board directed that the examiner should discuss the September 1979 fall from a railway car and the Veteran's report of recurrent back pain at his November 1987 examination. The Board acknowledges the December 2019 VA opinion, but finds it to be inadequate. Specifically, the opinion states that the Veteran "fell from the railway car and had back pain in 1979 but was noted to not have trouble with his back on the report in November 1987 as documented." However, the Board finds that further development is needed that addresses other evidence of record. For example, the November 1987 Report of Medical History notes recurrent back pain. Further notations state: "recurrent back pain due [sic] injury 1981 [L.G.] fell off railroad car, no trouble now. See STR, November 1987. The Board assumes that the examiner's opinion relies on the phrase "no trouble now." However, the nature of the Veteran's back pain was described as "recurrent," which suggests that it is not continuous, but with periods of absence. Thus, the fact that the Veteran was not experiencing back pain on the date of the examination, is not necessarily an indication that the pain had resolved completely. Further, the Veteran's VA treatment records note chronic back pain, a piece of evidence that the Board asks that an examiner consider in a new opinion. See CAPRI, August 2016. Accordingly, the Board will remand for a new VA opinion. 4. Entitlement to service connection for a hip disability, to include as secondary to a back disability. In addition, the Board finds that a new VA examination and opinion are needed regarding the claimed hip disability. The Board acknowledges the December 2019 VA opinion, but seeks the following clarification. Specifically, the opinion states: "The strains of the hip resolve over time and the current condition of the hip is likely arthritic and the result of the aging process." Similarly, in addressing a potential connection to the claimed back disability, the opinion states: "There is no aggravation of any hip condition by any current back disability (strain) as strains of the back do not cause arthritis of the hip as noted in the medical literature." However, the December 2019 VA examination report does not indicate an arthritis diagnosis. In addition, pertinent to an arthritis diagnosis, the examination report indicates "no" to the question: "Have imaging studies of the hip or thigh been performed and are the results available?" Accordingly, the Board seeks clarification of the Veteran's current hip diagnosis, particularly whether the Veteran has arthritis. 5. Entitlement to service connection for residuals of a chest injury, to include scar tissue. Similarly, the Board seeks clarification regarding the Veteran's claimed residuals of a chest injury, to include scar tissue. The Board acknowledges the December 2019 VA opinion from December 2019, which states: "The diagnosed costochondritis is less likely than not the result of an in-service event. No scar was noted as the symptoms the veteran reports appear to be related to the condition of costochondritis." However, the opinion later states: "There [sic] no evidence to support current residuals of the chest injury as the chest problem at that time was costochondritis which is inflammation of the rib and cartilage junction and is treated with ibuprofen and ice to the area." These opinions appear to the Board to be contradictory, as the first suggests that there is a diagnosis of costochondritis, but it is less likely than not the result of an in-service event, while the second suggests that the costochondritis was due to service, but it is now resolved. The Board seeks clarification upon remand. In clarifying the Veteran's diagnosis and providing a new VA opinion, the Board asks that an examiner also address the following notation from an August 2015 VA treatment record: "when in the service he was weight lifting for PT adn [sic] he dropped a weight on his hcets adn [sic] did not have anyone available to remove it and had injury to the chest wall and muscle [sic]. [H]as developed scar tissue." The Board notes that the Veteran's claim specifically includes the contention that he has "scar tissue in [his] sternum due to his weight lifting while on active duty." See IHP, January 2019. 6. Entitlement to service connection for residuals of viral syndrome, to include memory loss. Finally, the Board seeks a new VA examination and opinion regarding the Veteran's claimed residuals of viral syndrome, to include memory loss. Specifically, the Board asks that the Veteran be examined by an individual with background and/or expertise in neurocognitive disorders. The Board acknowledges the December 2019 VA opinion, which states that the "Veteran has a significant neurocognitive disorder and secondary depression. However, it is unknown whether there is a direct relationship between Veteran's viral syndrome experienced while in the military and his cognitive issues as this practitioner is a Ph.D. in psychology and not an MD or DO." Further, the Board acknowledges the subsequent May 2020 VA opinion, which was obtained from a general practitioner M.D. However, the Board finds this opinion to be inadequate because it did not consider the following. First, a VA treatment record that notes: "while in military had an event where he passed out . . [sic] no drug use. unknown virus syndrome. he woke up in the hopsital [sic]. has had memory loss since then." See CAPRI, August 2015 (emphasis added). In addition, an opinion is need that addresses contentions from the January 2019 IHP, specifically that: "The veteran contends that he is entitled to service connection for residuals, memory loss due to constant confusion that the veteran says he has when dealing with his duty for over 20 years in the Army." The matters are REMANDED for the following action: 1. After securing any necessary consent forms from the Veteran, obtain any outstanding treatment records, to include any VA and/or private treatment records, pertaining to the issues on appeal. All efforts should be documented in the claim file. If any records could not be obtained, this should be noted in the claim file. 2. Upon completion of the above, schedule the Veteran for the following VA examinations: Increased rating claims (a) A VA examination to evaluate the current level of severity of the service-connected right fourth finger fracture, hand crush injury, and right hand scar disabilities. The claim folder and all pertinent treatment records should be made available to the examiner for review, and review of such records should be noted in any subsequent report. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. In addition, the examiner is asked to address the following regarding the service-connected right fourth finger fracture, hand crush injury. Full ROM testing must be conducted on the opposite joint, unless the opposite joint is damaged, which includes any disorder that would make the joint in question abnormal. If the opposite joint is determined to be damaged, and no ROM testing is conducted, this must be explained in the report. For all ranges and planes of motion where pain is noted, the exact point at which pain starts must be clearly noted. (1) The examiner is asked specifically to provide range of motion testing (ROM) for active motion, passive motion, weight-bearing, and nonweight-bearing. (2) In addition, the examiner must discuss pain for ROM movements on active, passive, and repetitive use testing. The examiner is asked to address the following questions: (i) Are any ROM movements painful on active, passive, and repetitive use testing? If yes, identify whether active, passive, and repetitive use. (ii) If yes (there are painful movements), does the pain contribute to functional loss or additional limitation of ROM? Please further describe the functional loss or additional limitation of ROM. (iii) If no (the pain does not contribute to functional loss or additional limitation of ROM), explain why the pain does not contribute. (3) In addition, the examiner must discuss pain when used in weight-bearing or in nonweight-bearing. The examiner is asked to address the following questions: (i) Is there pain when the joint is used in weight-bearing or nonweight-bearing? If yes, identify whether weight-bearing or nonweight-bearing. (ii) If yes (there is pain when used in weight-bearing or nonweight-bearing), does the pain contribute to functional loss or additional limitation of ROM? Please further describe these limitations. (iii) If no (the pain does not contribute to functional loss or additional limitation of ROM), explain why the pain does not contribute. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups, as expressed in ROM. In addition, the Board notes that the Veteran has indicated that his hand hurts, not just his finger. For example, in a statement accompanying the VA Form 9, he states: "My hand hurts [sic] Why do they just concentrate on a finger? Its [sic] my hand Hurts, swells, and at times can't lift. Why just the finger?" However, the December 2019 VA examination report indicates that there is no evidence of pain with the use of the right hand. The Board seeks clarification upon remand. Service connection claims For all examinations and opinions, the examiner should be given access to the claim file. The examiner should state that a review of the claim file was completed. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. A detailed rationale is requested for all opinions provided. Back (b) A VA examination to clarify the diagnosis of his claimed back disability and to address the etiology of any diagnosed disability(ies). For each disability diagnosed, the examiner is asked to address whether it is at least as likely as not (i.e., a 50 percent or greater probability) that it was caused by the Veteran's active duty service. The examiner is asked to specifically address: (1) The November 1987 Report of Medical History that notes recurrent back pain. Further notations state: "recurrent back pain due [sic] injury 1981 [L.G.] fell off railroad car, no trouble now. See STR, November 1987. The Board notes that the nature of the Veteran's back pain was described as "recurrent," which suggests that it is not continuous, but with periods of absence. Thus, the fact that the Veteran was not experiencing back pain on the date of the examination, is not necessarily an indication that the pain had resolved completely. (2) VA treatment records that note chronic back pain. See CAPRI, August 2016. (3) The September 1979 fall from a railway car. Hip (c) A VA examination to clarify the diagnosis of his claimed hip disability and to address the etiology of any diagnosed disability(ies). For each disability diagnosed, the examiner is asked to address whether it is at least as likely as not (i.e., a 50 percent or greater probability) that it was caused by the Veteran's active duty service. The examiner is asked to specifically address whether the Veteran has an arthritis diagnosis. In addition, the examiner should discuss the September 1979 fall from a railway car and the June 1981 slip and fall hip injury. In addition, the examiner should provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that claimed hip disability is proximately due to, or the result of, or aggravated (permanently worsened) beyond normal progression by the Veteran's claimed back disability. Chest (d) A VA examination to clarify the diagnosis of his claimed residuals of a chest injury, to include scar tissue and to address the etiology of any diagnosed disability(ies). For each disability diagnosed, the examiner is asked to address whether it is at least as likely as not (i.e., a 50 percent or greater probability) that it was caused by the Veteran's active duty service. The examiner is asked to specifically address whether there is scar tissue. The examiner should address the following: (1) The March 1984 chest injury while weightlifting and subsequent report of chest pain or pressure and shortness of breath at his November 1987 examination. (2) The contention that the Veteran has "scar tissue in [his] sternum due to his weight lifting while on active duty." See IHP, January 2019. (3) An August 2015 VA treatment record, which states: "when in the service he was weight lifting for PT adn [sic] he dropped a weight on his hcets adn [sic] did not have anyone available to remove it and had injury to the chest wall and muscle [sic]. [H]as developed scar tissue." Residuals of viral syndrome, to include memory loss (e) A VA examination to clarify the diagnosis of his claimed residuals of viral syndrome, to include memory loss and to address the etiology of any diagnosed disability(ies). The Board asks that the Veteran be examined by an individual with background and/or expertise in neurocognitive disorders. For each disability diagnosed, the examiner is asked to address whether it is at least as likely as not (i.e., a 50 percent or greater probability) that it was caused by the Veteran's active duty service. The examiner is asked to specifically address: (1) A VA treatment record that notes: "while in military had an event where he passed out.. [sic] no drug use. unknown virus syndrome. he woke up in the hopsital [sic]. has had memory loss since then." See CAPRI, August 2015 (emphasis added). (2) The January 2019 IHP, specifically the contention that: "The veteran contends that he is entitled to service connection for residuals, memory loss due to constant confusion that the veteran says he has when dealing with his duty for over 20 years in the Army." (3) A May 2019 VA treatment record, which indicates no complaints of memory loss. (4) The loss of consciousness in June 1978, the diagnosed viral syndrome with syncope in July 1978, and the report at the November 1987 examination that the Veteran experiences "[t]rouble sleeping, excessive worry, unconsciousness due to viral syndrome 1981," reportedly "caused by exhaustion from working too long, not a problem now." 3. If upon completion of the above action the issues are denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Foster, 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.