Citation Nr: 21009540 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 17-48 513 DATE: February 22, 2021 ORDER Entitlement to service connection for a left third finger distal interphalangeal contracture is granted. FINDING OF FACT The evidence is at least in equipoise as to whether the Veteran’s left third finger distal interphalangeal contracture is related to active duty service. CONCLUSION OF LAW The criteria for service connection for left third finger distal interphalangeal contracture are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1954 to May 1956. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a September 2015 rating decision by the Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran presented testimony at a Board hearing in April 2019. A transcript of the hearing is associated with the Veteran’s claims folder. This case was previously before the Board in July 2019, on which occasion claims for entitlement to service connection for left third finger distal interphalangeal contracture and keloid lesions were remanded. In an October 2020 rating decision, the RO granted service connection for keloid lesions. This constitutes a full grant of the benefits sought by the Veteran. Therefore, there is no longer a case or controversy regarding the issue of entitlement to service connection for keloid lesions for the Board to consider. The remaining claim has been returned to the Board for further adjudication. Entitlement to service connection for a left third finger distal interphalangeal contracture. The Veteran asserts that his left third finger distal interphalangeal contracture is related to an injury sustained while loading artillery shells into an artillery piece. (4/10/2019, Hearing Transcript, p. 2). At the outset, the Board notes that the Veteran's service treatment records were destroyed in the July 1973 fire at the National Personnel Records Center, and are therefore unavailable for review. (5/22/2015, VA 21-3101, p. 2). Given the missing service treatment records, VA has a heightened duty to assist the Veteran in developing his claim. O'Hare v. Derwinski, 1 Vet. App. 365 (1991). The Board concludes that the Veteran has a current disability that began during active service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). A January 2020 hand and fingers disabilities examination shows the Veteran has a current diagnosis of a flexion deformity of the left distal interphalangeal joint of the middle finger. Thus, the question becomes whether the current disability is related to service. On this question there are probative opinions in favor of and against the claim. The evidence against the claim includes a January 2020 VA opinion, wherein a VA examiner opined that the Veteran’s finger disability was less likely than not incurred in-service. In rendering her opinion, the examiner found no evidence of an in-service injury and no report of a finger injury in the Veteran’s separation examination. (1/13/2020, C&P Exam, p. 13). The Board finds that the January 2020 VA opinion is inadequate, as the examiner relied on the absence of the Veteran’s service treatment records as substantive negative evidence. The Board may not consider the absence of evidence as substantive negative evidence, unless silence in the record tends to disprove the Veteran’s assertion. See Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011). In the present case, the Veteran’s service treatment records are absent as a result of the 1973 fire. Despite the missing records, the January 2020 VA examiner concluded that there are no reports of an injury during the Veteran’s period of active duty service. In doing so, the examiner essentially treats the destruction of the Veteran’s service treatment records as evidence that tends to disprove his assertions. This finding does not comport with the Court’s holding in Buczynski, therefore the Board finds that the January 2020 opinion is inadequate. Regarding the lack of a diagnosis in the Veteran’s separation examination, the Board notes that the examination report is incomplete. Specifically, the report of medical history and examiner’s summary sections are not associated with the separation examination. (6/11/1956, Medical Treatment Record, p. 1-2). Because the report is incomplete, the Board assigns little probative value to the separation examination. The evidence in favor of the claim includes an October 2019 VA opinion, wherein a VA examiner found that the Veteran’s finger disability was at least as likely as not incurred in or caused by the claimed in-service injury. In rendering her opinion, the examiner noted lay testimony provided by the Veteran indicating that he injured his finger while loading artillery shells into an artillery piece. The examiner also noted objective evidence of a scar on the Veteran’s left palm. Based on the Veteran’s lay testimony and the scar, the examiner concluded that the injury was related to service. (10/29/2019, C&P Exam, p. 2). The probative value of medical opinion evidence is based on the medical expert’s personal examination of the patient, the physician’s knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Whether a physician provides a basis for his or her medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician’s access to the claims folder and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000); Nieves-Rodriguez, 22 Vet. App. 295 (2008); Prejean v. West, 13 Vet. App. 444, 448-9 (2000). (Continued on the next page)   Here, the October 2019 opinion was provided by a VA medical professional who possesses the necessary education, training, and expertise to provide the requested opinions. Additionally, the opinion is shown to have been based on a review of the Veteran’s record and is accompanied by a sufficient explanation as to why the Veteran’s left third finger distal interphalangeal contracture is related to service. Conversely, the January 2020 VA examiner’s opinion was found to be inadequate for evaluation purposes. The Board thus places more probative weight on the October 2019 medical opinion. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran’s current left third finger distal interphalangeal contracture arose in service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Glenn, 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.