Citation Nr: 21070863 Decision Date: 11/26/21 Archive Date: 11/26/21 DOCKET NO. 13-21 966A DATE: November 26, 2021 ORDER Entitlement to service connection for a left long (middle) finger disability is denied. FINDING OF FACT The preponderance of the probative evidence weighs against finding that the Veteran's left long (middle) finger disability began during active service or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for entitlement to service connection for a left long (middle) finger disability have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had qualifying service from August 1990 to November 1993. In August 2015, September 2017, and January 2019 Decisions, the Board, in pertinent part, remanded the issue herein for further medical development. In an October 2020 Decision, the Board, in pertinent part, denied the issue herein for lack of a present disability for VA purposes. In a July 2021 Joint Motion for Partial Remand (JMPR), the U.S. Court of Appeals for Veterans Claims (Court) vacated and remanded the part of the October 2020 Board Decision that denied the issue herein for the Board's failure to adequately analyze whether the Veteran has a disability for VA purposes. 1. Entitlement to service connection for a left long (middle) finger disability Direct service connection may be warranted if the evidence shows: (1) the existence of a present disability; (2) 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran generally contends that his current left long (middle) finger disability is due to an in-service injury during which a hatch was closed on his left long (middle) finger resulting in continuous pain and functional loss since. See October 2012 Notice of Disagreement (NOD); June 2014 Statement; April 2016 VA hand and finger conditions examination; July 2017 Brief; October 2018 Brief; October 2019 VA hand and finger conditions examination; July 2020 Brief; November 2021 Brief. Preliminarily, the Board finds that the Veteran's left long (middle) finger pain and resulting functional loss is a disability for VA purposes because the level of functional impairment affects earning capacity; specifically, the Veteran's left long (middle) finger pain resulted in limited flexion, avoidance of pushing/pulling/lifting heavy objects greater than five pounds, favoring the right hand to avoid pain in the left long (middle) finger, avoidance of using his left long (middle) finger for typing (even though he is in the IT field for work), and zero to one week of work time lost in the last 12 months due to the disability. Saunders v. Wilkie, 886 F.3d 1356, 13667-68 (Fed. Cir. 2018); Wait v. Wilkie, 33 Vet.App. 8, 17 (2020); October 2019 VA hand and finger conditions examination. These functional limitations affect the Veteran's earning capacity for jobs in the workforce generally and for his specific job in the IT field because they limit his ability to maintain persistence and pace with typing and other physical activities involving that finger; thus, the Board concedes that the Veteran has a disability for VA purposes. Crucially, however, the preponderance of the probative evidence weighs against finding that the Veteran's left long (middle) finger disability began during active service or is otherwise related to an in-service injury or disease. Specifically, the Board highlights that there was no documented in-service injury to the left long (middle) finger and that the Veteran's more recent reports of injury to the left long (middle) finger are inconsistent with his earlier reports to providers during service and for several years post separation (when he reported in-service injuries to his bilateral index fingers only, and not his left long/middle finger). Service treatment records are silent regarding any complaints of, treatment for, or diagnoses related to the left long (middle) finger at any time upon entrance to or during service. See March 1990 enlistment examination; October 1990 examination. Notably, a September 14, 1991, service treatment record documented the Veteran's report that a hatch fell on his right index finger causing limited range of motion in the DIP joint secondary to increased edema, which the providers treated by cleansing the wound, trimming flesh, and dressing with a splint; additionally, October 1993 service treatment records documented the Veteran's report of ongoing pain in the right index finger since the September 1991 injury. None of the service treatment records documented any reports by the Veteran or observations by a provider regarding a left long (middle) finger injury. Notably, although the October 2020 Board Decision mentioned, in pertinent part, that the September 1991 service treatment record did not specify which hand and finger was injured, it is now apparent to the Board (after further analysis of the service provider's handwriting) that the service record clearly identifies the injury as being of the right index finger only. The Board further notes that the Veteran's reports of the in-service injury to the left long (middle) finger have fluctuated throughout the record. In the March 2011 VA hand, thumb, and fingers examination, the Veteran reported hitting his right hand on a hatch in 1991, fracturing his right index finger, having a cyst removed from his right wrist, and fracturing the tip of his left index finger in 1992 when coming down from a pushup with clapping; he did not report an in-service injury to the left long (middle) finger. In the April 2012 VA hand and finger conditions examination, the Veteran reported fracturing his right index finger in the early 1990s; he did not report an in-service injury to the left long (middle) finger. Then, in an October 2012 NOD and a June 2014 Statement, the Veteran began reporting that he injured his left long (middle) finger when a hatch closed on it in service. In the April 2016 VA hand and finger conditions examination, the Veteran reported injuring his left long (middle) finger on a hatch in 1991 in service. In the July 2017 Brief, the Veteran's representative presented arguments in favor of service connection for the right index finger, not in favor of service connection for the left long (middle) finger; in doing so, the representative pointed out that the October 1993 service treatment records documented in-service injury of the right index finger. In the October 2018 Brief, the representative contended that service connection is warranted because the left long (middle) finger disability had its onset during the Veteran's period of active duty service. In the October 2019 VA hand and finger conditions examination, the Veteran reported injuring his left long (middle) finger on a hatch in 1991 in service. In the July 2020 Brief, the representative contended that service connection is warranted based on continuity of symptomatology. In the November 2021 Brief, the representative contended that a new etiological opinion was warranted to satisfy VA's duty to assist because the October 2019 VA examiner railed to provide sufficient rationale for the opinion. Although the Board has considered the representative's contentions regarding etiology, the Board notes that etiology is irrelevant unless the other two elements of service connection are established (the existence of a present disability for VA purposes and an in-service event, injury, or disease). Crucially, however, the probative evidence does not establish that the Veteran had an in-service event, injury, or disease pertinent to the current left long (middle) finger disability. As discussed above, the service treatment records and the Veteran's post-separation reports through the April 2021 VA hand and finger conditions examination only establish an in-service hatch injury to the right index finger and an in-service pushup injury to the left index finger, without any mention of in-service injury to the left long (middle) finger. Then, since the October 2012 NOD, the Veteran's reports changed to being that he injured his left long (middle) finger in the hatch in service. Based on the Veteran's inconsistent reports of in-service injury to the left long (middle) finger, the Board finds his earlier statements (reporting injuries only to the bilateral index fingers) to be more probative because they were contemporaneous with and in closer proximity to service, when the Veteran's recollection of in-service injuries would likely be more accurate. Thus, because the probative evidence has not established an in-service event, injury, or disease pertinent to the left long (middle) finger, the Board finds that further etiological development is not required, service connection is not warranted, and the claim must be denied. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Daus, 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.