Citation Nr: 21012679 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 17-66 532 DATE: March 4, 2021 REMANDED Entitlement to service connection for a right forearm disability is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from October 1965 to October 1967. His decorations include the National Defense Service Medal. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an August 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office. The issue on appeal was previously before the Board in December 2019, when it was remanded to the agency of original jurisdiction (AOJ) for additional development. After taking further action, the AOJ confirmed and continued the prior denial and returned the case to the Board. Entitlement to service connection for a right forearm disability is remanded. The Veteran seeks to establish service connection for a right forearm disability. He maintains, in essence, that he has a current disability that is attributable to an injury he sustained in service. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). In February 2020, a VA examiner opined that it was unlikely that the Veteran had a disability of the elbow or forearm that was related to service. In support of that conclusion, the examiner noted that there was an acute injury in basic training, no sequelae, and no current diagnosis or treatment of the elbow or forearm. The Board finds the examiner’s opinion inadequate. The opinion is premised, in part, on a finding of no current diagnosis or treatment. However, an award of service connection for an orthopedic disability does not require evidence of a current diagnosis or treatment. Rather, in order to satisfy the first element of service connection, above, all that is required is that a “disability” be present. The term “disability” as used for VA purposes contemplates functional impairment resulting in loss of earning capacity. See 38 C.F.R. § 4.1; Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). The February 2020 examiner indicated, in effect, that the Veteran did not suffer any functional impairment of the left forearm at the time of the examination. Objectively, no impairment was noted. However, the Veteran does not appear to be complaining of daily impairment per se. Rather, he appears to be alleging impairment following periods of more than ordinary use of the forearm. During the examination, he reported that he had issues any time he used the forearm more than normal. It’s not entirely clear that the examiner considered the Veteran’s reports in that context. As such, an addendum opinion is warranted. See, e.g., Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided). This matter is REMANDED for the following action: 1. Obtain copies of records pertaining to any VA treatment the Veteran has received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the record. 2. After the foregoing development has been completed, make arrangements to provide the record on appeal to the VA examiner who previously evaluated the Veteran in February 2020. The examiner should be asked to review the expanded record and prepare a supplemental report on the matter of whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that the Veteran has had a disability of the right forearm at any time since May 2016 (when he filed his claim for service connection). In so doing, the examiner should consider that the term “disability” as used for VA purposes does not require diagnosis or treatment, but rather contemplates functional impairment resulting in loss of earning capacity. The examiner should also consider the Veteran’s statements concerning pain and weakness in his right forearm, as set out in a September 2016 notice of disagreement, the February 2020 VA examination report, and an August 2020 submission. The examiner should further consider that the Veteran appears to be alleging impairment following periods of more than ordinary use of the forearm, rather than daily impairment per se. If it is the examiner’s opinion that it is at least as likely as not that the Veteran has suffered disability of the right forearm at any time since May 2016, the examiner should offer a further opinion as to whether it is at least as likely as not that such disability had its onset during, or is otherwise related to, service. In doing so, the examiner should comment on the Veteran’s statements to the effect that he has had pain and weakness that continues to this day and that he injured his arm in service and that it never resolved itself. If the February 2020 examiner is no longer employed by VA or is otherwise unable to provide the opinions requested, arrange to obtain the requested information from another qualified examiner. The need for another examination and/or telephonic or video interview of the Veteran is left to the discretion of the examiner(s) selected to offer the requested opinions. A complete rationale for all opinions expressed must be provided. 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issue on appeal should be readjudicated based on the entirety of the evidence. If the benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Willis, 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.