Citation Nr: 21009845 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 14-18 765 DATE: February 23, 2021 ORDER Service connection for a left-hand disorder with residual sensory neuropathy of the left little finger is granted. REMANDED Service connection for fatigue is remanded. Service connection for joint pain of left upper extremity is remanded. Service connection for joint pain of left lower extremity is remanded. FINDING OF FACT The weight of the competent and probative evidence is at least in equipoise as to whether a current left-hand disorder, with residual sensory neuropathy of the left little finger, had its onset in or is otherwise related to the Veteran’s period of active service. CONCLUSION OF LAW The criteria for service connection for a left-hand disorder with residual sensory neuropathy of the left little finger have been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1979 to March 1999, and he is in receipt of the Kuwait Liberation Medal which is sufficient evidence of service in Southwest Asia during the Persian Gulf War. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an October 2009 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board in February 2018 and December 2019, on which occasions the issues of service connection for fatigue, joint pain of the left upper and left lower extremities were remanded for further development. As will be discussed in the “Remand” section of this decision, a review of the record reflects that the Agency of Original Jurisdiction (AOJ) failed to substantially comply with the December 2019 Board’s Remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection Service connection for a left-hand disorder with residual sensory neuropathy of the left little finger. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). As a general matter, establishing service connection requires competent evidence of (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). In relevant part, 38 U.S.C. § 1154(a) requires that VA give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990). After review of the record, the Board finds that the criteria for service connection for a left-hand disorder with residual sensory neuropathy of the left little finger have been met. The record contains a competent diagnosis of a laceration of the left-hand with residual sensory neuropathy of the left little finger. May 2000, VA examination. The Board, accordingly, finds competent evidence of a current disorder. Service treatment records indicate the Veteran accidently stabbed himself in the left-hand with a knife in June 1999 and had surgery for complex laceration of the left-hand to repair the ulnar digital nerve of the small finger. At a follow up appointment in September 1999, the Veteran complained of numbness in his left little finger. The treating doctor diagnosed left-sided traumatic neurotmesis of the palmar digital nerve and a branch of the ulnar nerve which supplies the abductor digiti minimi. The doctor further stated, “I suspect the area of numbness will be permanent as will the weakness of the abductor digiti minimi.” STRs dated June 1999, September 1999, and October 1999. Post-service private treatment records indicate the Veteran’s complaints of continuous numbness in his left little finger since the in-service injury. See May 2000, VA treatment record. During a May 2000 VA examination, the Veteran reported that his left little finger is numb, weak, and that he has difficulty using his left little finger while typing. The VA examiner noted abnormal range of motion in the left little finger with paresthesia outside the left little finger. See May 2000, VA examination. In February 2020, a VA examiner noted the Veteran had minimal numbness in the left ulnar border of the fifth digit due to a cut from a severed nerve in 1999. See February 2020, VA examination. In light of the forgoing, the Board finds the weight of the competent and probative evidence is at least in equipoise as to whether the Veteran’s left-hand disorder with residual sensory neuropathy of the left little finger had its onset during or is otherwise related to active service. See 38 C.F.R. § 3.102, 3.303. The Board finds the Veteran’s complaints of continuous left little finger numbness since discharge from service and the February 2020 VA examiner’s positive nexus opinion to be competent and credible, and therefore, accords high probative weight to same. See February 2020, VA examination; Jandreau, 492 F.3d at 1377. Resolving all reasonable doubt in favor of the Veteran, the Board finds service connection for left-hand disorder with residual sensory neuropathy of the left little finger is warranted. See 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 57-58. REASONS FOR REMAND Service connection for fatigue. The Veteran contends that he began to suffer from insomnia and fatigue after his return from the Gulf War and said symptoms have persisted since discharge from active service. In July 2014, the Veteran reported that fatigue is not as pronounced so long as he takes two packets of AndroGel 1% gel, but fatigue still persists. See July 2014, VA Form 9; October 2009, NOD; February 2009, VA Form 21-4138. The Board notes that a VA opinion concerning direct service connection for fatigue has not been obtained. The Veteran contends that fatigue has been continuous since his return from the Gulf War and a May 2000 treatment record indicates the Veteran’s complaints of insomnia and frequent fatigue; thus, a medical opinion regarding direct service connection is warranted. Service connection for joint pain of left upper extremity. Service connection for joint pain of left lower extremity. The February 2018 and December 2019 Board Remand directives stated the VA examiner should render an opinion on direct service connection and determine whether joint pain in the left upper and lower extremities is attributable to a diagnosed disability or disease, undiagnosed illness, or a diagnosable but medically unexplained chronic multi symptom illness. The Board finds the February 2020 examination report violated the December 2019 Board Remand directives. Specifically, the VA examiner only rendered an opinion concerning direct service connection for the left upper and lower extremities. In that opinion, the VA examiner disregarded the Veteran’s statements of continuity for left elbow and knee pain since discharge because there was an absence of medical documentation in the record corroborating the Veteran’s statements. Most notably, the examiner stated, “Since there were no symptoms on the first C&P examination in 2000 and also second examination in 2009, it is very difficult to say when symptoms started.” The Board, accordingly, finds an addendum opinion is necessary. See February 2020, VA examination; Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning); Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007) (a medical opinion is inadequate if it does not take into account the Veteran’s reports of symptoms and history or if it is based solely on the absence of documentation in the record) (emphasis added); Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006) (finding the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence). Additionally, the Board notes that the Veteran stated he received treatment for joint pain in the left upper and lower extremities by Dr. Bob Butts, but VA has not requested rested those records. See July 2014, VA Form 9. Additionally, the claims file has VA treatment records to ¬¬¬¬¬June 2020. On remand, any previously unobtained ongoing relevant medical records should be procured and associated with the Veteran’s claims file. The matters are REMANDED for the following action: 1. Contact the Veteran and request that he provide the names and addresses of any and all health care providers or treatment facilities where he has received treatment for joint pain in his left upper and lower extremities, to include Dr. Bob Butts. After acquiring this information and obtaining any necessary authorization, attempt to obtain all the records of treatment or examination from all the sources listed by the Veteran.  All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran. 2. Obtain all outstanding records of VA evaluation and/or treatment records of the Veteran dated since June 2020 and associate them with the claims file. 3. After completing directives #1 and #2, obtain an addendum opinion for the February 2020 VA examination from the original VA examiner to determine the nature and etiology of any disability related to fatigue and joint pains of the left upper and lower extremities. The examiner should opine: (a.) Whether the Veteran’s symptoms of fatigue and joint pains of the left upper extremity and left lower extremity developed during or after his Persian Gulf War service and are at least as likely as not at attributable to (1) a diagnosed disability or disease, (2) an undiagnosed illness, or (3) a diagnosable but medically unexplained chronic multi symptom illness (MUCMI), in that either the etiology or pathophysiology is unknown or inconclusive. A condition is not a MUCMI where both the etiology and pathophysiology are partially understood. The examiner should consider the evidence for the Veteran’s particular circumstances in determining if there is MUCMI. In rendering this opinion, the examiner should address: i) a May 2000 VA treatment record noting complaints of insomnia and frequent fatigue; and ii) the October 2009 notice of disagreement wherein the Veteran indicated he was diagnosed with joint pain in 2000-01. (b.) Whether it is at least as likely as not (50 percent or greater probability) that any current disability related to fatigue, if any, began during active service, or manifest during the one-year period following service. In rendering this opinion, the examiner should address: i) the May 2000 treatment record noting insomnia and fatigue, ii) the Veteran’s statements that insomnia and fatigue began after his return from the Gulf War and said symptoms have persisted since discharge from active service, and iii) the Veteran’s statement that fatigue is not as pronounced so long as he takes two packets of AndroGel 1% gel, but fatigue still persists. (c.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s left lower extremity disability, including left knee osteoarthritis, began during active service, or manifest during the one-year period following service. In rendering this opinion, the examiner should address the October 2009 notice of disagreement wherein the Veteran indicated he was diagnosed with joint pain in 2000-01, the Veteran’s statements of continuity of left knee pain, and the in-service laceration of the left distal and medial knee. See May 1988, service treatment record. (d.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s left upper extremity disability, including left elbow osteoarthritis, began during active service, or manifest during the one-year period following service. In rendering this opinion, the examiner should address the October 2009 notice of disagreement wherein the Veteran indicated he was diagnosed with joint pain in 2000-01 and the Veteran’s statements of continuity of left elbow pain. The Veteran is competent to report his symptoms, experiences, and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran’s reports of symptomatology, he or she must provide a reason for doing so. 4. The examiner is reminded that lack of medical evidence is not an adequate reason for discounting the Veteran’s statements of continuity of fatigue and joint pain in the left upper and lower extremities. See Buchanan, 451 F.3d at 1336-37. A rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical, should be considered. JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Straughn, 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.