Citation Nr: 21074434 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 17-40 486 DATE: December 15, 2021 REMANDED Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a left hand disability is remanded. Entitlement to service connection for a right hand disability is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from February 1985 to January 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Board previously remanded the matter in June 2020. In February 2020, the Veteran testified at a hearing before a Veterans Law Judge (VLJ) who is no longer employed by the Board. In an October 2021 letter, VA informed the Veteran that the prior VLJ was no longer employed by the Board and that he may request another optional Board hearing. The letter further stated that if the Veteran did not respond within thirty days that the Board would proceed accordingly. To date, the Board has not received a response to the October 2021 letter. Therefore, the Board will proceed with adjudication. The Board notes that throughout the course of this appeal, the issue of service connection for a low back disability was granted in a June 2021 rating decision. Therefore, the benefit sought has been granted in full; the appeal is no longer before the Board. 1. Entitlement to service connection for a left knee disability is remanded. 2. Entitlement to service connection for a left hand disability is remanded. 3. Entitlement to service connection for a right hand disability is remanded. In August 2020, a VA examiner provided an opinion as to whether the Veteran's left knee and bilateral hand disabilities were related to his active service. The examiner concluded that it was less likely than not that the conditions were related to service. The Board initially finds the August 2020 VA opinions to be inadequate regarding the Veteran's left knee, left hand, and right hand disabilities. Specifically, regarding the Veteran's left knee, the examiner referred to the February 2015 VA examiner's opinion in providing a rationale. The Board notes that the February 2015 VA examiner's opinion is, in part, inadequate because it was based on an inaccurate factual premise regarding whether there was a disability. Regarding the Veteran's left hand and right hand disabilities, again, the examiner referred to the February 2015 VA examiner's findings, which the Board found inadequate as it did not address whether there was a left hand disability in the first place and also reasoned that the medical records were silent as to right and left hand problems. The Board also notes that the August 2020 VA examiner determined that the Veteran did not have a right hand disability, which is inconsistent with the record findings of a diagnosis of Quervain's tenosynovitis. Ultimately, both opinions include rationale suggesting that a lack of contemporaneous records is the basis for a lack of service connection. The Board points out that a lack of contemporaneous records is not an absolute bar to service connection. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (finding lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr v. Nicholson, 21 Vet. App. 303 (2007) ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms"). Also, if in fact the Veteran does not have a left hand or right hand diagnosis, the examiner must consider Saunders v. Wilkie, 886 F.3d 1356, 1368 (Fed. Cir. 2018), where the Court held that pain in the absence of a presently-diagnosed condition can cause functional impairment, which may qualify as a disability for VA purpose. Finally, in September 2021, the Veteran's representative submitted an Informal Hearing Presentation (IHP) on behalf of the Veteran. In the IHP, the representative stated that the Veteran challenges the competency of the August 2020 examiner. Along with this contention, the representative requested "the curriculum vitae and other information about the qualifications of the examiner that demonstrates that he was competent to provide an opinion on the specific issues under appeal." In Francway v. Wilkie, 940 F.3d 1304 (Fed. Cir. 2019), the Federal Circuit held that VA's duty to assist mandates that "[o]nce the request is made for information as to the competency of the examiner, the Veteran has the right, absent unusual circumstances, to the curriculum vitae and other information about qualifications of a medical examiner." The Board does not note any unusual circumstances in this matter. Accordingly, the Board finds that a remand is warranted to obtain clarifying VA opinions for the Veteran's left hand, right hand, and left knee disabilities. Further, remand is required to obtain the information that the Veteran has requested regarding the examiner's qualifications. The matters are REMANDED for the following actions: 1. Contact the VA Medical Center that arranged the Veteran's August 2020 VA opinion for the issues currently on appeal, and request copies of the examiner's curriculum vitae and any other information relevant to the examiner's qualifications, or an explanation as to why such cannot not be provided. Thereafter, provide the Veteran and his representative with copies of such information or an explanation as to why such could not be provided. 2. Also, obtain VA opinions for the Veteran's left knee, right hand, and left hand disabilities with an appropriate examiner to determine the etiology of these conditions. The claims file and a copy of this remand must be made available for review. Following review of the pertinent evidence, the examiner must determine the following: (a) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's left knee disability is related to service. (b) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's left hand disability is related to service. If the examiner determines that the Veteran does not have a left hand diagnosis than the examiner must discuss the functional impairment of the Veteran's left hand pain. (c) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's right hand disability is related to service. If the examiner determines that the Veteran does not have a right hand diagnosis than the examiner must discuss the functional impairment of the Veteran's right hand pain. A clear rationale must be provided for all opinions expressed. The examiner must not consider the February 2015 VA examiner's opinions in providing a rationale. The examiner also must note that a lack of contemporaneous records is not an absolute bar to service connection. If the examiner is unable to provide an opinion without resorting to mere speculation, then the examiner must state this and provide any information needed to make an opinion, if possible. 3. Thereafter, readjudicate the claims on appeal. If the benefit sought remains denied, issue the Veteran and his representative a supplemental statement of the case and provide a reasonable opportunity to respond before returning the matter to the Board for further appellate review. Saudiee Brown Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Watkins, 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.