Citation Nr: 21071617
Decision Date: 11/30/21	Archive Date: 11/30/21

DOCKET NO. 17-64 737
DATE: November 30, 2021

REMANDED

Entitlement to service connection for right-hand arthritis, to include as secondary to the service-connected right-hand scar, is remanded.

REASONS FOR REMAND

The Veteran served on active duty from June 1976 to September 1979.

This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a March 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). 

In August 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the proceeding has been associated with the claims file. 

Entitlement to service connection for right-hand arthritis, to include as secondary to the service-connected right-hand scar, is remanded.

The Veteran contends that his service-connected right-hand scar has proximately caused or aggravated his currently diagnosed degenerative arthritis of the right hand. Additionally, in a July 2021 private medical opinion, Dr. S.D. suggested that the Veteran's initial right-hand injury, which resulted in the service-connected scar, may have contributed to his right-hand arthritis. 

Although the February 2016 VA opinion discussed the Veteran's medical history and provided a supporting rationale, the question of aggravation was not addressed. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). "Related to" is not sufficient to address the aggravation avenue to establish secondary service connection. The Court of Appeals for Veterans Claims holding in El-Amin v. Shinseki, 26 Vet. App. 136 (2013), indicates that in circumstances such as this case, a medical opinion addressing the aggravation question should be sought. As such, remand is needed for an addendum opinion. 

Further, at the August 2021 hearing, the Veteran referenced private treatment records from Kaiser Permanente medical facilities that are not of record. Accordingly, a remand is warranted to obtain the outstanding private treatment records

The matter is REMANDED for the following action:

1. Ask the Veteran to complete a VA Form 21-4142 for any treatment providers who treated his right hand, including at Kaiser Permanente medical facilities. Make two requests for the authorized records from any identified treatment providers unless it is clear after the first request that a second request would be futile. 

2. Obtain an addendum opinion from an appropriate VA clinician. The complete electronic record should be made available to and be reviewed by the clinician.

(A) Determine whether it is at least as likely as not (50 percent probability or higher) that his right-hand arthritis was aggravated by his service-connected right-hand scar. Aggravation is defined as a worsening beyond the natural progression of the disability. 

(B) If aggravation is shown to exist, the clinician should set out the baseline level of severity of the right-hand arthritis established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity.

Provide a comprehensive rationale for all provided. 

 

 

MICHAEL KILCOYNE

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Erin J. Trojanowski, 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.