Citation Nr: 21021844 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 15-41 530 DATE: April 14, 2021 ORDER Entitlement to service connection for a left ankle strain is granted. Entitlement to service connection for a right hand disability, to include right second finger disability, is denied. REMANDED Entitlement to service connection for a left hand and finger disability is remanded. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU) on an extraschedular basis, for the period prior to October 12, 2011, is remanded. FINDINGS OF FACT 1. The evidence establishes that the Veteran’s left ankle strain is secondary to her service-connected pes planus. 2. The evidence does not establish that the Veteran was diagnosed with or received treatment for a right-hand disability during military service or following military service; there is no evidence suggesting that the Veteran has a right-hand disability that causes functional impairment. CONCLUSIONS OF LAW 1. The criteria for service connection for a left ankle strain have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for service connection for a right hand and finger disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1994 to October 2003 and from May 2008 to November 2010. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a May 2013 rating decision issued by the Department of Veterans Affairs Regional Office (RO). These claims were previously before the Board in September 2018, December 2019, and July 2020, at which time they were remanded for further development. The Veteran contends that the disabilities are service connected in association with the positive findings in the October 2020 addendum to the August 2020 VA ankle and hands examinations. The Veteran also contends that she is entitled to a TDIU for the period prior to October 12, 2011. Service Connection Generally, to establish service connection a Veteran must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.” Davidson v. Shinseki, 581 F.3d 1313, 1315–16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be granted on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. The evidence must show: (1) that a current disability exists; and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated (permanently worsened in severity beyond its natural progress) by a service-connected disability. Id.; Allen v. Brown, 7 Vet. App. 439, 448–49 (1995). 1. Left ankle The Veteran’s service treatment records demonstrate that the Veteran had ankle joint pain and stiffness during her military service. The Veteran’s post-medical treatment records also show that the Veteran has had bilateral chronic ankle sprains and bilateral ankle joint pain during the period on appeal. An October 2020 addendum to the August 2020 VA ankle examination recognized that the Veteran had been diagnosed with a left ankle strain during the period on appeal. The examiner opined that the Veteran’s left ankle strain is related to service-connected pes planus. The examiner explained that Veteran’s pes planus does alter her gait which can create an environment which makes chronic ankle sprains and strains more apt to occur. Accordingly, the Board finds that the Veteran’s left ankle strain is at least as likely as not secondary to her service-connected pes planus. Thus, service connection for a left ankle strain is warranted. 2. Right hand and finger Although the Veteran’s service treatment records reveal that she had joint pain during military service, the joint pain was never associated with a right hand and finger disability. During her military service the Veteran was never diagnosed with or treated for a right hand or finger injury. The Veteran’s post-military service treatment records also reveal that she has had ongoing problems with her joints. However, a right hand and finger disability associated with joint pain has never been identified. The Veteran was afforded VA hand examinations in February 2020 and August 2020, and an October 2020 addendum opinion to the August 2020 examination is of record. The examinations and addendum did not identify any right hand or finger disorder during military service or following military service. Furthermore, the Veteran herself stated that she was unaware of any right hand or finger disability. At the August 2020 VA hand examination, the Veteran denied any problem with her hand or finger. Therefore, in regard to the Veteran’s claim for service-connection for a right hand and finger disability, the medical evidence does not support a current diagnosis. See Shedden, 381 F.3d 1163, 1167 (Fed. Cir. 2004). To establish a “current disability” there must be competent evidence that a disability exists at the time of filing for benefits or during the period of review. Chelte v. Brown, 10 Vet. App. 268 (1997). This disability must be a present disability and not an example of a past disability or one-time treatment for an illness. Degmetich v. Brown, 104 F.3d 1328, 1332. Additionally, the February 2020 examiner opined that the Veteran does not have functional impairment related to her right hand. As such, the Veteran does not have right hand symptoms productive of functional impairment to establish a right-hand disability. See Saunders v. Wilkie, 886 F.3d 1356, 1367-1368 (2018). Based on the foregoing reasons, the preponderance of the evidence is against the claim for service connection for a right-hand disorder, the benefit-of-the-doubt rule is not applicable, and the claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Left hand and finger While the Board regrets the additional delay, due to the VA’s failure to assist, the Veteran’s claim of entitlement to service connection for a left-hand disorder must be remanded. The VA has the duty to make reasonable efforts to assist a claimant in securing evidence necessary to substantiate their claim for VA benefits. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). As part of that duty to assist, once VA has provided a VA examination, it is required to provide an adequate one, regardless of whether it was legally obligated to provide an examination in the first place. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Furthermore, a remand confers on the claimant, as a matter of law, the right to compliance with the remand order and imposes upon the VA a concomitant duty to ensure compliance with the remand. See Stegall v. West, 11 Vet. App. 268 (1998). The Veteran is seeking service connection for a left hand disability. The August 2020 VA examiner did not diagnose any current disabilities of the left hand or finger and found no functional loss; however, in October 2020, she opined that left finger strain was likely related to service, which is inextricably intertwined with the left hand. The Board notes the record shows the Veteran was referred for an X-ray of the left hand in April 2017, but it is unclear whether that was ever conducted. It is not clear if left finger strain is the cause of the Veteran’s left hand complaints, and she has not otherwise narrowed her claim to exclude consideration of the hand. Given her complaints and the fact that an X-ray was recommended, an additional addendum must be provided regarding the hand. The Board has expanded her claim to include both the hand and the fingers. 2. Extraschedular TDIU Unfortunately, there has not been substantial compliance with the Board’s previous remand directives regarding the issues of entitlement to service connection for a TDIU. Another remand is required. See Stegall. In its December 2019 and July 2020 decisions, the Board directed the RO to refer the Veteran’s claim to the Director of Compensation and Pension Service for extraschedular consideration. The RO did not complete this request before returning the Veteran’s claim to the Board. The matters are REMANDED for the following action: 1. Make an attempt to locate any VA X-rays and other radiological testing of the left hand and fingers dated from 2010 to the present. Updated VA treatment records should also be obtained. 2. Thereafter, schedule the Veteran for an appropriate examination for opinion on whether any left hand and/or finger disability is related to service. The claims file should be made available to the VA examiner. The examiner is asked to elicit from the Veteran a detailed history of her symptoms, and to provide a list of all current left hand and finger disabilities. For each rendered diagnosis, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that it had its clinical onset during active service or is otherwise related to any in service disease, event, or injury. The Board notes she was referred to get a left hand X-ray in April 2017, but it is unclear whether that happened. The examiner should provide an opinion as to whether it is at least as likely as not that any left hand or finger disability was proximately due to or aggravated beyond its natural progression by the Veteran’s service-connected bilateral shoulder disorder. All opinions must be supported with explanation. 3. Following the above development, refer TDIU claim to the Director, Compensation and Pension Service, for extraschedular consideration of whether TDIU is warranted prior to October 12, 2011. The response must be included in the claims file. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999). Amanda E.H. Gibson Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Temple, 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.