Citation Nr: 21013162 Decision Date: 03/08/21 Archive Date: 03/08/21 DOCKET NO. 20-28 151 DATE: March 8, 2021 ORDER Entitlement to service connection for a right pinky finger disability is denied. Entitlement to service connection for a mental health disability is denied. REMANDED Entitlement to service connection for a left thumb disability is remanded. Entitlement to service connection for a left wrist disability is remanded. FINDINGS OF FACT 1. The preponderance of the evidence of record is against finding that the Veteran has had a right pinky finger disability at any time during or proximate to the period on appeal. 2. The preponderance of the evidence of record is against finding that the Veteran has a diagnosis of a mental health disability at any time during or proximate to the period on appeal. CONCLUSIONS OF LAW 1. The criteria for service connection for a right pinky finger disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a mental health disability, to include anxiety, are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 4.125. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1949 to March 1950 with additional service in the Iowa State National Guard. This case comes before the Board of Veterans’ Appeals (Board) on appeal of a June 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The matters were previously before the Board in October 2020 when they were remanded for further development. Service Connection 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; 38 C.F.R. § 3.303(a). Establishing service connection requires (1) evidence of a presently existing disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). “Active service” includes active duty, a period of active duty for training (ADT) in which the individual was disabled from a disease or injury incurred or aggravated in the line of duty, and a period of inactive duty for training (IDT) in which the individual was disabled from an injury incurred or aggravated in the line of duty. 38 U.S.C. § 101(21), (24)(B); 38 C.F.R. § 3.6(a). See also Brooks v. Brown, 5 Vet. App. 484 (1994). ADT includes full-time duty performed for training purposes by members of the Reserves or National Guard. 38 U.S.C. § 101(22); 38 C.F.R. § 3.6(c). IDT is generally duty (other than full-time duty) prescribed for Reserves or duty performed by a member of the National Guard of any State (other than full-time duty). 38 U.S.C. § 101(23); 38 C.F.R. § 3.6(d). Annual training is an example of ADT, while weekend drills are IDT. It is VA policy to administer the laws and regulations governing disability claims under a broad interpretation and consistent with the facts shown in every case. When a reasonable doubt arises regarding service origin, the degree of disability, or any other point, after careful consideration of all procurable and assembled data, such doubt will be resolved in favor of the claimant. Reasonable doubt is one which exists because of an approximate balance of positive and negative evidence which does not prove or disprove the claim satisfactorily. It is a substantial doubt and one within range of probability as distinguished from pure speculation or remote possibility. See 38 C.F.R. § 3.102. 1. Entitlement to service connection for a right pinky finger disability. The Veteran contends that he injured his right pinky finger during his time in the National Guard. Specifically, he contends that he was involved in a motor vehicle accident (MVA) when he fell asleep and lost control of the car while he was on his way home from annual training. See Correspondence received December 2018 and Statement in Support of Claim received May 2020. He asserts that he was treated for a broken right pinky finger. In support of his claim the Veteran has submitted a newspaper article from August 1951 showing that that he was the driver of a vehicle involved in an accident while returning from annual training with the National Guard. The RO has acknowledged a newspaper article showing that the Veteran was in a car accident on August 26, 1951, and that service personnel records show that the Veteran was on active duty for training from August 11, 1951 to August 26, 1951. Under 38 C.F.R. § 3.6, injuries sustained while traveling directly home from a two-week training are eligible for service connection. The Board concludes that the Veteran does not have a current diagnosis of a right pinky finger disability and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). At a December 2020 hand and finger examination, the Veteran reported that he broke his finger on his way home from annual training with the National Guard. He also reported that his “pinky finger does not bother him.” The examiner noted that the pinky finger did not have arthritis and that all examination findings, including x-ray images taken at the time of the examination, were normal for the pinky. The examiner added that the claims file was silent for any evidence of a right pinky fracture. While the examiner listed a generalized diagnosis of degenerative arthritis of the bilateral hands at the outset of the examination report, when reading the report as a whole it is clear that the examiner’s overall opinion was that the Veteran did not have a current diagnosis of a right pinky finger disability, whether arthritis or otherwise. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012); Acevedo v. Shinseki, 25 Vet. App. 286, 293–94 (2012). There is no evidence that the above examiner was either not competent or credible. Further, the examiner based his opinion on the Veteran’s account of his symptoms, a review of the medical evidence, x-ray imaging results and an objective examination of the finger. As such, the Board finds that the examination report is entitled to significant probative weight as to the presence of a current disability. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). As a layperson, the Veteran is competent to report feeling pain in his right pinky. However, to the extent the Veteran believes he has a diagnosis for a right pinky disability, he is not competent to provide a formal diagnosis in this case. The issue is medically complex, as it requires specialized medical education. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). While pain alone may constitute a disability for the purposes of service connection, there must be a showing that the pain reaches the level of a functional impairment of earning capacity. Saunders v. Wilkie, 886 F.3d 1356, 1367–68 (Fed. Cir. 2018); Wait v. Wilkie, No. 18-4349, 2020 U.S. App. Vet. Claims LEXIS 1609, *16–*19 (Vet. App. Aug. 26, 2020). Here, there is no evidence that the Veteran’s pinky results in impairment of earning capacity. Indeed, the Veteran himself reported at the time of the December 2020 examination that the pinky finger did not bother him. Thus, there is no competent, credible and probative evidence of any functional loss or functional impairment due to right pinky pain. As there is no competent and credible evidence of a current disability, service connection is not warranted on any basis. 38 C.F.R. §§ 3.102, 3.303; see Brammer, 3 Vet. App. at 225. The preponderance of the evidence weighs against a finding that the Veteran has a current right pinky finger disability. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55–57 (1990); 38 C.F.R. § 3.102. For these reasons, the claim is denied. 2. Entitlement to service connection for a mental health disability. The Veteran contends that he suffers from a mental health disability, to include anxiety, due to the MVA while driving home from annual training in the National Guard in August 1951. The Board concludes that the Veteran does not have a current diagnosis of a mental health disability, to include anxiety, and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky, 26 Vet. App. at 294; McClain, 21 Vet. App. at 321. The Veteran was provided with a mental disorders examination in November 2020 where he denied any current mental health issues to include anxiety, depression, or sleep problems. He also denied any previous psychiatric hospitalizations, suicidal ideation, and suicide attempts. The Veteran reported that he does not take any psychiatric medications. When asked about the MVA, the Veteran stated that it “was 69 years ago,” and that “time heals most things.” He also reported that he never thinks about it anymore. The examiner opined that, based on a review of the medical evidence and the Veteran’s own reports, the Veteran did not meet the DSM-5 criteria for a diagnosis of any psychiatric disability. There is no evidence that the above examiner was either not competent or credible, and as noted the examiner based his opinion on the Veteran’s own reporting of his symptoms, a review of the medical evidence, and the diagnostic criteria contained in the DSM-5. As such, the Board finds that the examination report is entitled to significant probative weight as to the presence of a current disability. Nieves-Rodriguez, 22 Vet. App. 295. As a layperson, the Veteran is competent to report symptoms of anxiety or feelings of guilt for what happened in the MVA in 1951. However, to the extent the Veteran believes he has a diagnosis for a mental health disability, to include anxiety, he is not competent to provide a diagnosis in this case. 38 C.F.R. § 4.125. The issue is medically complex, as it requires specialized medical education. Jandreau, 492 F.3d at 1377. VA treatment records show that he denied depression, anxiety, and nightmares repeatedly from 2017 through 2020, and do not reflect a formal diagnosis of a psychiatric disability at any point. As there is no competent and credible evidence of a current mental health disability, service connection is not warranted on any basis. 38 C.F.R. §§ 3.102, 3.303, 4.125; see Brammer, 3 Vet. App. at 225. The preponderance of the evidence weighs against a finding that the Veteran has a current mental health disability. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55–57 (1990); 38 C.F.R. § 3.102. For these reasons, the claim is denied. REASONS FOR REMAND 1. Entitlement to service connection for residuals of a broken left thumb The Veteran was provided with a hand and finger conditions DBQ in December 2020 where he reported pain in his thumb and was diagnosed with left thumb degenerative arthritis. The examiner opined that the Veteran’s left thumb disability was less likely than not due to his service because the “C-file does not contain evidence of a chronic left thumb condition for 69 years, there is no evidence of chronicity of care.” The examiner added that the x-ray showed arthritis in the left thumb, but “no old fractures were noted on x-ray, current symptoms of the left thumb most likely due to diagnosis of arthritis, which is normal for the Veteran’s age.” The Board finds that the December 2020 opinion does not provide an adequate rationale regarding whether the Veteran’s left thumb disability is due to the MVA in 1951. The Board notes that the Veteran has claimed that he has suffered from pain in his left thumb since the MVA in 1951. See February 2021 Appellate Brief. The Board notes that the Veteran is competent to report symptoms of left thumb pain. The December 2020 opinion was based on the lack of evidence showing chronicity of care for 69 years after service. As such, the Board finds that an addendum medical opinion is required prior to adjudication of this issue. Additionally, the Board notes that the December 2020 opinion did not discuss whether the Veteran’s left thumb disability is related to his claimed injury while playing football on active duty. Upon remand, the addendum medical opinion should address this contention. 2. Entitlement to service connection for a left wrist disability The Veteran was provided with a wrist conditions DBQ in December 2020 where he reported that he broke his left wrist in the MVA and has had stiffness and difficulty moving the wrist over the years. He was diagnosed with left wrist sprain and the examiner opined that the condition was less likely than not due to his service because “during service, left wrist disability, was acute only.” The examiner noted that “there is no evidence of chronicity of care.” He added that the x-ray “did not have any evidence of an old wrist fracture.” The examiner noted that “while Veteran has a left wrist sprain and left chondrocalcinosis there is no evidence chronicity of care for 69 years after service.” The Board finds that the December 2020 opinion does not provide an adequate rationale regarding whether the Veteran’s left wrist disability is due to the MVA in 1951. The Board notes that the Veteran has claimed that he has suffered from pain in his left wrist since the MVA in 1951. See February 2021 Appellate Brief. The Board notes that the Veteran is competent to report symptoms of left wrist pain. The December 2020 opinion was based on the lack of evidence showing chronicity of care for 69 years after service. As such, the Board finds that an addendum medical opinion is required prior to adjudication of this issue. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding the following: a) Is it at least as likely as not (a 50 percent chance or greater) that the Veteran’s left thumb disability is causally related to his active duty, to include a football injury or the August 1951 MVA? b) Is it at least as likely as not (a 50 percent chance or greater) that the Veteran’s left wrist disability is causally related to his active duty, to include the August 1951 MVA? The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be considered in formulating the requested opinion. However, if there is a medical reason to doubt its veracity, the examiner should explain why the Veteran’s statements or recollection are inconsistent with the evidence in this case, medical principles relating to the onset and progress of the disease, the specific findings in the record, and/or your professional judgment. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. CHRISTOPHER A. WENDELL Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Morrad, 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.