Citation Nr: 21015148 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 14-38 876A DATE: March 16, 2021 ORDER Entitlement to service connection for left hand fifth digit trigger finger is granted. Entitlement to service connection, for treatment purposes only, for an acquired psychiatric disability, pursuant to 38 U.S.C. § 1702, is dismissed. REMANDED Entitlement to service connection for a left shoulder disability is remanded. FINDINGS OF FACT 1. The Veteran’s left hand fifth digit trigger finger was incurred in, or caused by, active duty service. 2. As the Veteran has been granted service connection for persistent depressive disorder, and this encompasses the right to treatment, the issue of service connection for an acquired psychiatric disorder for treatment purposes only, is rendered moot. CONCLUSIONS OF LAW 1. The criteria for service connection for left hand fifth digit trigger finger are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The claim for service connection for persistent depressive disorder, which affords greater benefit, has been granted and, as such, the claim for service connection for an acquired psychiatric disorder for treatment purposes only, pursuant to 38 U.S.C. § 1702, is rendered moot. 38 U.S.C. §§ 7104(a), 7105(d)(5); 38 C.F.R. §§ 19.7, 20.101, 20.200. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active duty service with the United States Navy from August 1977 to August 1997. The Veteran is a Gulf War Era Veteran who also served during Peacetime. These issues are before the Board of Veterans’ Appeals (Board) on appeal from a June 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. The Veteran requested a hearing before the Board on his VA Form 9. See VA Form 9, dated November 2014. The Veteran was scheduled for a hearing, but the hearing was canceled at his request. This case was previously before the Board in June 2018. In June 2018, the case, in pertinent part, was remanded to obtain additional treatment records and VA examinations to determine the nature and etiology of the disabilities on appeal. The Veteran’s claim for a left hand trigger finger, specifying the thumb, has been expanded as reflected on the title page. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Subsequent to the June 2018 Board remand, but prior to its return to the Board for readjudication, the Veteran was granted service connection for left knee degenerative arthritis, right knee strain, right ankle degenerative arthritis, bilateral hearing loss, and persistent depressive disorder. As the Veteran was granted service connection, these claims have been granted in full; the issues are no longer on appeal, and the Board will not address these issues further in this decision. Seri v. Nicholson, 21 Vet. App. 441, 447 (2007); see also Grantham v. Brown, 114 F.3e 1156 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second Notice of Disagreement must thereafter be timely filed to initiate appellate review of “downstream” issues such as the compensation level assigned for the disability or the effective date of service connection). The remaining claims have been returned to the Board for readjudication. As discussed below, further development is necessary prior to adjudicating the claim of service connection for a left shoulder disability. 1. Entitlement to service connection for left hand fifth digit trigger finger Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Establishing direct service connection generally requires competent evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). The Board finds that the evidence of record supports a grant of service connection for the Veteran’s left hand trigger finger. First, there is evidence of a current disability. A November 2020 VA examination confirmed that the Veteran had a diagnosis of left hand trigger finger. See 38 C.F.R. § 3.303(a); see also Shedden, 381 F.3d at 1163. Moreover, the evidence demonstrates an in-service event, insofar as the Veteran demonstrated a left fifth digit finger injury while in service. See 38 C.F.R. § 3.303(a); see also Shedden, 381 F.3d at 1163; Service Treatment Records, dated May 1993. Third, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s current left hand trigger finger was incurred in service or is causally related to service. In that regard, the law is clear. Pursuant to the “benefit-of-the-doubt” rule, where there is “an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter,” the Veteran shall prevail upon the issue. 38 U.S.C. § 5107. The November 2020 VA examiner opined that the left hand trigger finger was at least as likely as not incurred in or caused by his active duty service. There is no negative evidence regarding the specific diagnosis of left hand trigger finger. Upon weighing the evidence of record, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s left hand trigger finger was incurred in or caused by the Veteran’s military service. The Board therefore concludes that, with the benefit of the doubt resolved in the Veteran’s favor, a grant of service connection for right ear otosclerosis is warranted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990) (“[T]he ‘benefit of the doubt’ standard is similar to the rule deeply embedded in sandlot baseball folklore that ‘the tie goes to the runner’.... [I]f... the play is close, i.e., ‘there is an approximate balance of positive and negative evidence,’ the veteran prevails by operation of [statute].”). 2. Entitlement to service connection, for treatment purposes only, for an acquired psychiatric disability, pursuant to 38 U.S.C. § 1702 As the Veteran has been awarded service connection for persistent depressive disorder, the issue of entitlement to service connection for purposes of establishing eligibility for treatment for an acquired psychiatric disorder, pursuant to the provisions of 38 U.S.C. § 1702 is moot. See 38 C.F.R. § 17.37(b). The Veteran will be afforded equal or greater access to VA treatment by virtue of his now established award of service connection for an acquired psychiatric disability. See 38 U.S.C. § 1710; 38 C.F.R. § 17.36. As such, the appeal as to this specific issue is dismissed. See Smith v. Brown, 10 Vet. App. 330, 333-34 (1997) (noting that dismissal is the proper remedy to employ when an appeal has become moot). REASONS FOR REMAND Entitlement to service connection for a left shoulder disability is remanded. The Veteran underwent VA examinations to determine the nature and etiology of his left shoulder disability in January 2012 and November 2020. The January 2012 examiner opined that it was less likely than not that the Veteran’s left shoulder disability was caused by military service. The examiner supported this opinion by stating that he was not sure whether the Veteran’s existing left shoulder disability was the same as the disability incurred in service and that there was a lack of documented evidence of the Veteran’s shoulder condition continuing after active duty. This opinion, however, did not express a clear rationale for need for speculation as to the nature of the existing left shoulder. See, generally, Jones v. Shinseki, 23 Vet. App. 382 (2010). In November 2020, the examiner opined that it was less likely as not that the Veteran’s left shoulder disability was causally related to the Veteran’s military service. The examiner supported the opinion by stating that the Veteran’s chronic left shoulder issues were not present within 12 months following separation from active service. However, the November 2020 VA examiner did not address the Veteran’s lay reports of left shoulder symptoms regularly since service discharge. Further, neither opinion addressed the possibility of secondary service connection. This is notable, as the Veteran has a diagnosis of acromioclavicular joint osteoarthritis, and the Veteran’s service-connected disabilities require constant use of a walker. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc); see VA Examination, dated November 2020. In light of the above, upon remand, the Veteran should receive a new VA examination to determine the nature and etiology of his left shoulder disability, to include secondary service connection. The matters are REMANDED for the following action: 1. The Agency of Original Jurisdiction (AOJ) should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for the disability on appeal. After acquiring this information and obtaining any necessary authorizations, the AOJ should obtain and associate these records with the claims file. The AOJ should also obtain any outstanding VA treatment records. 2. Schedule the Veteran for a VA examination to determine the nature and etiology of his left shoulder disabilities. The Veteran's claims file, including a copy of this remand, must be made available to and reviewed by the examiner. The examination report must reflect that such a review was undertaken. All indicated tests and studies should be accomplished, and all clinical findings should be reported in detail. (a.) Please identify each left shoulder disability affecting the Veteran during the period on appeal. If possible, an onset date should be provided. If any of these issues have resolved, this should be clearly stated, along with a date of resolution, in the examination report. (b.) The examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's left shoulder disability was incurred in, or is causally related to, the Veteran's military service. The examiner is asked to address the Veteran’s lay statements as to the onset and continuity of his symptoms since service discharge. The examiner is advised that the Veteran is competent to report symptoms capable of lay observation. (c.) The examiner should also provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's left shoulder disability is causally related to or aggravated by his service-connected disabilities. This opinion should include discussion of body habitus changes, altered posture, altered gait, use of assistive devices, and perception of pain as due to his service-connected disabilities. The examiner is advised that a finding that the left shoulder disability was aggravated beyond the normal progression due to a service-connected disability does not require evidence of permanent worsening and may encompass any additional impairment in earning capacity resulting from an already service-connected condition. (Continued on the next page)   If the examiner feels that the requested opinions cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). A clear rationale for the opinion must be provided and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. MICHELLE P. KATZ Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. E. Trotter, 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.