Citation Nr: 21011758 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 15-38 299 DATE: March 2, 2021 REMANDED Entitlement to service connection for nerve damage in right hand and fingers is remanded. Entitlement to service connection for nerve damage in left hand and fingers is remanded. Entitlement to service connection for an acquired psychiatric disability is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1985 to January 1988 with additional service in the Reserves. In May 2019, the Veteran testified at a video conference hearing (hearing) before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. The Board denied the Veteran’s claims in an October 2019 decision. The Veteran appealed the Board decision to the United States Court of Appeals for Veterans Claims (Court). Pursuant to a September 2020 Order granting a Joint Motion for Remand (JMR), the Court vacated the Board’s decision and remanded the claims to the Board for action consistent with the terms of the JMR. See September 2020 JMR. In the JMR, the parties agreed that the Board failed to provide an adequate statement of reasons and bases in denying the claims because “the Board failed to assess Appellant’s prior medical training and his specific prior occupation [as] a Medical Specialist, [in] its determination that he was not competent to provide medical analysis.” The parties also agreed that the Board decision must ensure that the duty to assist has been satisfied. Finally, the JMR agreed that the Board’s adjudication of service connection for an acquired psychiatric disorder must address the medical opinion from July 2019 provided by Dr. MRF. This decision has been written in order to comply with the JMR. The Board notes that the Veteran initially filed a claim for adjustment disorder, and the claims file reflects additional diagnosis including dysthymia and major depressive disorder. As such, the claim has been recaptioned more broadly as one for an acquired psychiatric disability. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). 1. Nerve damage in right hand and fingers 2. Nerve damage in left hand and fingers Upon review and in order to comply with the JMR, the Board finds that a remand is necessary for the Veteran’s claims for nerve damage of left and right (bilateral) hand and fingers. Specifically, the Board notes that the Veteran was not provided a VA examination for his claims. The Board finds that the requirements for a VA examination pursuant to McLendon v. Nicholson, 20 Vet. App. 79 (2006) are met.  A VA examination is warranted where (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.  Here, the Veteran testified that he sustained injuries which resulted in bilateral nerve damage of his hands and fingers while climbing a rope during inactive ready reserve training when he held on to the rope in order to avoid falling. See Hearing Transcript. The Board notes that the Veteran’s Form DD 214 indicates that he served as a medical specialist and he testified that he worked in a medical aid station during active service. As such, the Veteran’s statement that he has signs and symptoms of a current disability is accepted as competent evidence based on his prior medical training and occupation. Second, an in-service injury has been established by the Veteran’s testimony which is also confirmed by a May 1990 service treatment record (STR) reflecting that the Veteran was assessed with an abrasion when he sustained injury to his fingertips while sliding down a rope. See STR-Medical. The record also indicates that the Veteran’s bilateral hand nerve disability or signs and symptoms of disability may be associated with active service. However, there is insufficient information to decide the claim. In this regard, the Board notes that the Veteran did not provide a nexus opinion in light of his medical training. Additionally, the Veteran’s private physician Dr. D.P.M. noted that the Veteran’s symptoms began after the injury in the reserve unit from “climbing rope and ultimately lost the skin on his hands. See August 2019 Letter from Advent Health Medical Group. Dr. D.P.M. further states that the Veteran’s “symptoms could be consistent with the injury related to that event.” The Board is unable to adjudicate the claim based on Dr. D.P.M.’s opinion because he used speculative language of mere possibility rather than probability. See Bloom v. West, 12 Vet. App. 185, 186-187 (1999) (treating physician’s opinion that service “could have” precipitated a disability found too speculative). Here, Dr. D.P.M. stated that the Veteran’s current nerve damage symptoms “could be consistent” with his in-service injury. Dr. D.P.M. did not opine that his in-service injury caused his current symptoms. However, considering the Veteran’s statements and Dr. D.P.M.’s opinion, the record indicates that the bilateral hand nerve damage may be related to an in-service injury while rope climbing. Therefore, the Board concludes that the Veteran has a current disability, an in-service incurrence, and a possibility that the two might be related, and this is sufficient to trigger VA’s duty to assist. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the VA should obtain a VA examination and medical opinion to determine the nature and etiology of the Veteran’s bilateral hand nerve damage. 3. Acquired psychiatric disability Similarly, the Board also finds that a remand is necessary to obtain a VA examination and medical opinion regarding the Veteran’s acquired psychiatric disability. The Veteran was not provided a VA examination for his acquired psychiatric disability claim. However, the Board finds that a VA examination is warranted under Mclendon. Here, as previously noted the Veteran has been diagnosed with adjustment disorder and major depressive disorder. As such a current disability has been established. The Veteran testified that his adjustment disorder was due to conflict he experienced and how he was treated during his last three months during active service. See Hearing Transcript. He further stated that his adjustment disorder was related to the injuries he sustained during active service including to his back, knees, and hand. As noted above, the Veteran’s statements are accepted as competent. However, the Veteran did not provide a nexus opinion. The Board notes that Dr. M.R.F provided a private medical opinion in July 2019 for the Veteran’s acquired psychiatric disability. See July 2019 Private Treatment Record Clinical Associates, P.A. Specifically, Dr. M.R.F. noted the Veteran’s psychiatric treatment history including the Veteran’s report that “depression and anxiety that have been present since he was injured in a military training incident that affected his hands in a way that necessitated a change in career direction and life goals due to resultant limitations.” Id. Dr. M.R.F. opined that “it is possible that his symptoms originated from that injury.” Id. Unfortunately, this opinion is insufficient to adjudicate the claim because the examiner stated his opinion in terms of possibility rather than probability. See Bloom v. West, 12 Vet. App. 185, 186-187 (1999). Thus, based on the foregoing, the Board concludes that the Veteran has a current acquired psychiatric disability, an in-service incurrence, and a possibility that the two might be related, and this is sufficient to trigger VA’s duty to assist. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the VA should obtain a VA examination and medical opinion to determine the nature and etiology of the Veteran’s acquired psychiatric disability. The Board notes the claims file reflects that the Veteran has received treatment from Leavenworth VA Medical Center (VAMC), and Shawnee Mission Medical Center, and that records dated through August 2014 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 the Leavenworth VAMC, and Shawnee Mission Medical Center.    The matters are REMANDED for the following action: 1. Obtain the Veteran’s comprehensive VA treatment records for the period from August 2014 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 Leavenworth VAMC and Shawnee Mission Medical Center. 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.  Bilateral hand nerve disability 3. Schedule the Veteran for a VA examination by a qualified examiner to determine the nature and etiology of the Veteran’s current bilateral hand nerve 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.  4. The examiner is requested to provide the following:  (a.) Identify the current bilateral hand nerve disabilities. (b.) In the absence of a diagnosis of bilateral hand nerve disabilities, the examiner should determine whether the Veteran’s bilateral hand nerve pain causes functional impairment and should identify any related functional impairment. (c.) For each disability identified, or if the examiner identifies functional impairment due to pain without diagnosed disability, opine whether it is at least as likely as not that the Veteran’s bilateral hand disabilities or functional impairment is related to or caused by the May 1990 injury to his hands from climbing a rope. See May 1990 STR. (d.) The examiner she comment on whether the Veteran’s assertions that his current bilateral hand nerve disabilities/pain which was caused by his in-service injury while climbing a rope is consistent with medical knowledge or implausible?   (e.) Do the Veteran’s statements that his current bilateral hand nerve disabilities/pain was caused by his in-service injury while climbing a rope consistent with how the Veteran’s bilateral hand nerve disability/pain is known to develop?   (f.) Whether it is medically feasible that the Veteran’s current bilateral hand nerve/pain was caused by his in-service injury while climbing a rope? 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.   (g.) In rendering his/her opinion, the examiner is asked to address the May 2019 private medical opinion from Dr. P.D.M. and state basis for agreement or disagreement with Dr. P.D.M.’s opinion. Acquired psychiatric disability 5. Schedule the Veteran’ for a VA examination by a qualified examiner determine the nature and etiology of the Veteran’s current acquired psychiatric 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.  6. The examiner is requested to provide the following:  (a.) Identify the nature of each of the Veteran’s acquired psychiatric disorder(s) that meet the Diagnostic and Statistical Manual of Mental Disorder, Fifth Edition (DSM-5). (b.) Assuming that the standard is at least as likely as not, is it possible that the Veteran’s current acquired psychiatric disability could be related to or caused by the Veteran’s last three months during active service to include conflicts he experienced and how he was treated? (c.) Assuming that the standard is at least as likely as not, is it possible that the Veteran’s current acquired psychiatric disability could be related to or caused by the in-service injuries he sustained to his back, knees, and hands – including resulting change in career due to hand injury? (d.) Are the Veteran’s assertions that his current acquired psychiatric disability was caused by his in-service injuries he sustained to his back, knees, and hands consistent with medical knowledge or implausible?   (e.) Do the Veteran’s reports about his psychiatric symptoms consistent with how an acquired psychiatric disability is known to develop? (f.) Whether it is medically feasible that his current acquired psychiatric disability was caused by active service including conflicts, how he was treated, and/or sustained injuries to his back, knee, and hands?  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.  b. In rendering his/her opinion, the examiner is asked to address the May 2019 private medical opinion from Dr. M.R.F. and state the basis for agreement or disagreement with Dr. M.R.F.’s opinion. • THE EXAMINER MUST DISCUSS THE VETERAN’S LAY STATEMENTS REGARDING THE HISTORY, CHRONICITY, AND CONTINUITY OF SYMPTOMATOLOGY, TO INCLUDE THE VETERAN’S REPORT OF HIS IN-SERVICE INJURY.  S/HE SHOULD OUTLINE THAT HISTORY IN THE REPORT.   • 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.   7. 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 Attorney 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.