Citation Nr: 21006279 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 15-08 213 DATE: February 3, 2021 REMANDED Entitlement to service connection for a right index finger disability is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1976 to December 1977. This appeal originated from a May 2013 rating decision, which denied service connection for a right index finger disability. The Veteran appealed the decision to the Board of Veterans’ Appeals (Board) in March 2015. See March 2015 VA Form 9. The Veteran testified at an August 2018 Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is in the claims file. In March 2019, the Board denied the Veteran’s claim for a right index finger disability finding that there was no evidence of a current diagnosis based on the evidence of record at the time of the decision. See March 2019 Board Decision.The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In a January 2020 Joint Motion for Partial Remand (JMPR), the parties agreed that “the Board did not adequately address whether the Appellant’s alleged pain rises to the level of a functional impairment of earning capacity under Saunders v. Wilkie, 886 F. 3d 1356, 1363 (Fed. Cir. 2018). See January 2020. Pursuant to the JMPR, the Board remanded the claim in July 2020 for additional development. It now returns to the Board for further review. During the remand, the Veteran identified his private medical providers and Veteran provided authorizations to obtain those medical records. See September 2020 VA Form 21-4142. Accordingly, the Regional Office (RO) sent requests for medical records to Grady Memorial Hospital and Piedmont Physicians Group in September 2020. However, no new private medical records were received. In letters dated October 2020, the VA informed the Veteran of its inability to obtain the private medical records despite numerous attempts. See i.e., October 2020 Notification Letter. As such the Board finds further attempts to obtain these records would be futile. The Board also finds substantial compliance with the July 2020 Board remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998)(holding veterans are entitled to compliance with Board remand instructions). 1. Right Index Finger Although further delay is regrettable, the Board finds that a remand is necessary to provide the Veteran a VA examination in compliance with the January 2020 JMPR. The parties to the JMPR agreed that the Board failed to assess whether the Veteran’s right index pain caused functional impairment pursuant to Saunders v. Wilkie, 886 F. 3d 1356 (Fed. Cir. 2018). See January 2020 JMPR. The parties further agreed that if the Board found evidence of a current disability, or “that the Appellant’s pain amounts to functional impairment that satisfies the requirements of a current disability, or that the Appellant’s statements regarding his symptoms qualify as evidence of persistent or recurrent symptoms under Mclendon, then the Board should discuss whether Appellant is entitled to an examination.” Id. at 4 of 8. At the time of the March 2019 Board decision, the claims file did not include the Veteran’s VA treatment records, and no medical treatment records confirmed a right index finger complaint or condition. The Veteran testified during the August 2018 Board hearing that he received private treatment for his right index finger. See CAPRI received October 2019. The Board remanded the claim in July 2020 to obtain such private treatment records. As indicated above no private treatment records were obtained on remand. However, the Board also notes that VA treatment records were received in October 2019 following the March 2019 Board decision which was vacated. See CAPRI received October 2019. Importantly, the VA treatment records reflect that the Veteran began complaining of a right finger problem as early as April 2015. See April 2015 VA Nursing Traige Note in CAPRI received October 2019. An April 2015 VA X-ray of the Veteran’s right-hand revealed healing oblique fracture of the shaft of the proximal phalanx of the index finger. See April 2015 VA X-ray Report in CAPRI received October 2019. The Veteran was diagnosed with chronic right finger status post injury in August 2015. See August 2015 VA Primary Care Attending Note in CAPRI received October 2019. Finally, a January 2019 VA primary care note confirms right finger pain as an active problem. See January 2019 VA Primary Care Progress Note in CAPRI received October 2019. As such, the Board finds that a current disability has been established. Pursuant to Mclendon, VA is obliged to provide an examination or obtain a medical opinion in a claim when (1) the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, (2) the record indicates that the disability or signs and symptoms of disability may be associated with active service, and (3) the record does not contain sufficient information to decide the claim. 38 U.S.C. § 5103A (d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board finds that the requirements of a VA examination under Mclendon have been met. Here, as noted above the Veteran’s VA treatment records confirm a diagnosis of right finger pain. Second, the Veteran has provided competent and credible lay statements including testimony that he injured his finger in 1977 while cleaning his rifle. See March 2015 VA Form 9. He further contends “I have consistently had problems with this finger since and now currently have arthritis in that finger.” Id. However, there is no medical opinion in the record regarding the etiology of the Veteran’s current right index finger disability. Thus, the Board lacks sufficient information to decide the claim. Thus, based on the foregoing, the Board finds a remand is necessary for a VA examination to determine the nature and etiology of the Veteran’s current right index finger disability. The Board notes the claims file reflects that the Veteran has been receiving treatment from the Atlanta VA Medical Center (VAMC), to include the Fort McPherson Community Based Outpatient Clinic (CBOC), and that records dated through December 2020 are associated with the file; however, more recent records may exist.   The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file.   See Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016).  Thus, on remand the RO should obtain any outstanding VA treatment records to include records from Atlanta VAMC, Fort McPherson Clinic. The matters are REMANDED for the following action: 1. Obtain the Veteran’s comprehensive VA treatment records for the period from December 2020 to the present, to include from VA medical centers, clinics, counseling centers, hospitals, and outpatient treatment centers.  See 38 C.F.R. § 3.159(c)(3) (2020).  The Board observes that the Veteran has been treated at various VA facilities, to include Atlanta VAMC and Fort McPherson Clinic. 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. Schedule the Veteran for a VA examination by a clinician with appropriate expertise to determine the nature and etiology of the Veteran’s right index finger disability. 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.  Any clinically indicated testing and/or consultations should be performed.  4. The examiner is asked to provide the following information:  (a.) Identify the Veteran’s current right index finger disability(s). (b.) Assuming that the standard is at least as likely as not, is it possible that the Veteran’s current right index finger disability(s) could be related to or caused by the Veteran’s reports of injuring his right index finger when he was cleaning his rifle in November 1977. See March 2015 VA Form 9. (c.) Are the Veteran’s assertions that his current right index disability was caused by his in-service injury while cleaning his rifle consistent with medical knowledge or implausible with how the Veteran’s right index finger disability is known to develop? (d.) Is it medically feasible that his current right index finger disability was caused by his in-service injury while cleaning his rifle? i. If not, state why not and on what basis this conclusion was made. ii. If so, state why and on what basis this conclusion was made. (e.) 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 the Veteran’s lay statements of record indicating in-service symptoms and the Veteran’s statements regarding continuity of symptomatology. • The examiner may NOT rely on the absence of a medical record or evidence of medical treatment as the sole rationale for any negative medical nexus opinion. • 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.  See Jones v. Shinseki, 23 Vet. App. 382, 390 (2010). 5. 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.