Citation Nr: 21005885 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 15-43 601 DATE: February 2, 2021 ORDER Entitlement to service connection for contusion, left hand (previously claimed as crush hand) is denied. REMANDED Entitlement to service connection for an acquired psychiatric disability is remanded. Entitlement to service connection for chronic back pain (claimed as lower back condition) is remanded. FINDING OF FACT 1. The preponderance of the evidence is against finding that the Veteran’s left-hand condition began during active service or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW 1. The criteria for service connection for left hand contusion are not met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1988 to April 1997. The Veteran testified before the undersigned Veterans Law Judge during a September 2018 Board of Veterans’ Appeals (Board) hearing. A transcript of the hearing is associated with the claims file. This matter was previously remanded in February 2019, it now returns for further appellate review. While on remand, the Regional Office (RO) granted service connection for trapezius muscle strain (claimed as upper back or neck condition) in a June 2020 Rating Decision. Thus, the service connection claim for trapezius muscle strain is no longer before the Board because a grant of service connection constitutes a full grant of benefits on appeal. Grantham v. Brown, 111 F.3d 1156 (Fed. Cir. 1997). Service Connection 1. Contusion, left hand (previously claimed as crush hand) The Veteran contends his current left-hand contusion is related to his active service injury while working on an installation on the submarine mast. See Hearing Transcript. Specifically, the Veteran testified that “[w]e were installing a [inaudible] – well let’s just say there was a ferry on the submarine…. I had to, basically we were installing, and [my left hand] got stuck on what are called the brakes.” Id. Legal criteria Service connection may be granted for any current disability that is the result of a disease contracted or an injury sustained in the line of duty during active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for a disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a link between the claimed in-service disease or injury and the present disability. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013). Relevant Facts and Analysis The Veteran was diagnosed with left hand trigger finger in the third to fifth fingers and left-hand contusion (resolved) during the August 2013 VA examination. See August 2013 VA Hand and Finger Conditions DBQ. As such, the first element of service connection, a current disability, has been met. Regarding the second element of service connection, an in-service injury or illness, the Veteran has provided lay statements and testimony that he injured his hand on the submarine. See Hearing Transcript. Additionally, the Veteran’s STRs confirm that he reported he fractured his left hand of the first metacarpal in 1984 during his 1988 enlistment examination. See October 1988 Report of Medical History, STR-Medical. During the April 1997 separation examination, the Veteran reported his left-hand knuckles were smashed. See April 1997 Report of Medical History, STR-Medical. The Naval clinician indicated that the Veteran dropped a faring on his left hand and reported experiencing pain and gripping use of index and long finger. Id. Thus, based on the foregoing, the second element of service connection has been met. Thus, the question for the Board is whether there is a nexus between the Veteran’s current disability and his in-service injury. On this issue, the record contains two medical opinions. The August 2013 VA examiner provided a negative nexus opinion for the Veteran’s left-hand disability. See August 2013 VA Hand and Finger Conditions DBQ. The examiner reasoned that the “Veteran’s current left-hand condition is not the same condition he was treated for in service.” Id. The Board found the August 2013 opinion was incomplete and remanded for a new medical opinion, because the examiner did not address whether the Veteran’s in-service injury was related to the Veteran’s current left-hand disability. As such, this opinion is entitled to little probative weight. Pursuant to the February 2019 Board remand, the Veteran was provided another VA examination in December 2019. See December 2019 VA Hand and Finger Conditions DBQ. The examiner diagnosed the Veteran with left first metacarpal joint arthritis. Id. The examiner noted the Veteran reported a prior history of first left metacarpal fracture during his October 1988 enlistment examination but denied any ongoing problems. The examiner also noted the Veteran’s report of injuring his left hand when “his hand was caught in a submarine fairing which he was working on when a weight was dropped.” Id. However, the examiner stated that the Veteran’s STRs did not document this event except for an April 1997 separation examination, wherein the military clinician “clarified that the Veteran had had fairing dropped on his left hand 3 weeks earlier” and reported occasional pain in his index and long finger “for which ‘NCD’ (no chronic disability) was assessed.” Next, the examiner noted that the Veteran complained of left-hand problems in November 2009, more than 10 years after active service, the suspected diagnosis was trigger finger of the third to fifth fingers. Id. The November 2009 x-ray revealed degenerative joint disease of the first metacarpal (thumb) “(i.e. not the areas described for the crush injury but rather pre-service 1st metacarpal [fracture] issue).” Id. The December 2019 VA examiner provided a negative nexus opinion for the Veteran’s left-hand disability. See December 2019 VA Medical Opinion DBQ. In his rationale, the examiner stated that the “only ‘confirmable’ left hand condition at this time is 1st MCP joint arthritis which is NOT due to inservice contusion event.” The examiner explained that the Veteran’s current left-hand disability was “in a different location on this hand and because it is attributable instead to the prior to service thumb fracture event.” Id. The examiner also stated that the Veteran’s reports of fingers being stuck were “NOT typical of triggering, and the VA similarly did NOT find evidence of triggering.” Finally, the examiner concluded that there was no residual of in-service contusion confirmed during the VA examination. The Board affords more probative weight to the December 2019 VA examiner’s opinion because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Importantly, this medical opinion is uncontroverted by any medical evidence of record.  In fact, the Veteran has not submitted any medical evidence supporting his contention that his current left-hand disability was due to or the result of his active service.  The Board acknowledges the Veteran’s competent and credible lay statements regarding the symptoms he experienced. Although the Veteran believes his current left-hand 1st metacarpal arthritis is related to an in-service left-hand injury, his lay statements are not competent for the purpose of establishing a nexus. The Veteran in this case is not competent to provide a nexus opinion regarding this issue.  The etiology of his left-hand 1st metacarpal arthritis is medically complex and falls outside the realm of common knowledge of a lay person.  Essentially, the record does not demonstrate that the Veteran has any special training or acquired any medical expertise in evaluating that his left-hand 1st metacarpal arthritis was due to his in-service left-hand crush injury.  See King v. Shinseki, 700 F.3d 1339, 1345 (2012).  Consequently, the Board gives more probative weight to the December 2019 VA medical opinion. Thus, based on the foregoing, the Board finds that the evidence fails to establish a nexus between the Veteran’s current disabilities and his active service. Therefore, the third element of service connection has not been met. Accordingly, the preponderance of the evidence weighs against a finding that the Veteran’s current left-hand 1st metacarpal arthritis is related to his service.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990). As such, service connection is denied for the Veteran’s left-hand 1st metacarpal arthritis.  REASONS FOR REMAND 1. Acquired Psychiatric Disorder Upon review of the record, the Board finds that remand is warranted for compliance with the previous remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (A remand by the Board confers on the claimant, as a matter of law, a right to compliance with the remand orders). Specifically, the Board in February 2019 requested that the examiner, inter alia, state whether there is clear and unmistakable evidence that the Veteran’s psychiatric disability existed prior to service. If so, the examiner was to opine as to whether there was clear and unmistakable evidence that the pre-existing psychiatric disability was not aggravated during service. While the examiner appropriately utilized the correct standard to address the first question posed, from a review of the examination it cannot be discerned what standard the examiner utilized to address the second question posed. Given such, an addendum opinion is required to clarify what standard was used. 38 C.F.R. § 4.2. Accordingly, remand is warranted for compliance with the Board’s directive. 2. Chronic back pain (claimed as lower back condition) On review, the Board finds a remand is warranted to ensure compliance with its December 2019 remand directives. The Board remanded the claim in February 2019 to provide the Veteran a VA examination for his low back disability. See February 2019 Board Remand. With regard to the Veteran’s low back disability, the Board directed the examiner to address: “the Veteran’s lay statement regarding injury from carrying pumps and ladders while on the submarine and regarding his motor vehicle accident.” Id. In December 2019, VA obtained a VA examination and medical opinion for the Veteran’s claim. See December 2019 VA Back Conditions DBQ; December 2019 VA Medical Opinion DBQ. The examiner provided a negative nexus opinion and reasoned that there was no evidence in the Veteran’s STRs of a motor vehicle accident. See December 2019 VA Medical Opinion DBQ. However, the examiner did not address the Veteran’s lay statements regarding injuring his back from carrying ladders. As such, the December 2019 VA medical opinion does not comply with the February 2019 Board directive. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (A remand by the Board confers on the claimant, as a matter of law, a right to compliance with the remand orders.) The failure to address Veteran’s lay statements regarding cause of his current disability renders the December 2019 VA medical opinion inadequate. See Miller v. Wilkie, 32 Vet. App. 249, 260 (2020) (holding that the duty to assist requires that an examiner “address the veteran’s lay statements to provide the Board with an adequate medical opinion”). Accordingly, the claim is remanded for an addendum medical opinion to address the Veteran’s lay statement regarding the cause of his current low back disability. The matters are REMANDED for the following action: 1. Obtain and associate with the electronic claims file any outstanding private or VA treatment records relating to the Veteran’s claim following the procedures set forth in 38 C.F.R. § 3.159. 2. The Board recognizes the potential practical difficulties in scheduling an examination in light of the COVID-19 epidemic and requests flexibility and understanding in affording the Veteran any warranted examination. 3. Return the claims file to the December 2019 VA examiner, or a VA clinician with appropriate experience in assessing psychiatric disabilities to provide an addendum opinion to the December 2019 VA examination. 4. The examiner MUST state: (a.) whether there is CLEAR AND UNMISTAKABLE EVIDENCE THAT THE PRE-EXISTING PSYCHIATRIC DISABILITY WAS NOT AGGRAVATED during service. 1. If it was aggravated, the examiner should then address whether it is at least as likely as not that the Veteran’s current psychiatric disability is related to his psychiatric disability in service. 5. Return the claims file to the December 2019 VA examiner, or a VA clinician with appropriate experience in assessing orthopedic disabilities to provide an addendum opinion for the Veteran’s low back disability. 6. The claims file and a copy of this remand must be made available to the reviewing examiner, and the examiner should indicate in the report that the claims file was reviewed.  If the examiner determines a VA examination is necessary, any clinically indicated testing and/or consultations should be performed. 7. The examiner is asked to provide the following information:  (a.) Opine whether the Veteran’s current low back strain or any other diagnosed low back disability was least as likely as not (50 percent probability or greater) due to, or caused by any incident in the Veteran’s active service to include: i. his complaints of injuring his back while carrying 50 pound pump up ladders in submarine; ii. doing a lot of repetitive motion with heavy weights during active service; and/or iii. the February 1997 notation of back pain in the Veteran’s STRs. • In forming his or her opinion, the VA examiner is asked to explicitly consider in the rationale portion of the opinion, the Veteran’s lay statements and all other relevant evidence regarding his low back disability, and comment specifically on whether the Veteran’s statements and all other relevant evidence make sense from a medical point of view. (b.) If arthritis is found, the examiner should opine whether it at least as likely as not any arthritis (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service.  • In offering this opinion, the examiner must address lay statement of record indicating in-service symptoms and the Veteran’s statements regarding continuity of symptomatology. • Any opinion expressed by the VA examiner should be accompanied by a complete rationale.  If medical literature is relied upon in rendering this determination, the VA examiner should identify and specifically cite each reference material utilized.  • If the VA examiner is unable to offer an opinion without resorting to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided.  8. The AOJ must review the claims file and ensure that the foregoing development action has been completed in full. If any development is incomplete, appropriate corrective action must be implemented. If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Lilly, 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.