Citation Nr: 21027757 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 17-31 867 DATE: May 6, 2021 ORDER Entitlement to service connection for headaches is dismissed. Entitlement to service connection for a traumatic brain injury is dismissed. Entitlement to service connection for a left hip condition is denied. Entitlement to service connection for a right ankle condition is denied. Entitlement to service connection for a right foot condition is denied. Entitlement to an initial compensable rating for right leg fibula fracture is denied. REMANDED Entitlement to service connection for a low back condition is remanded. Entitlement to service connection for a right knee condition is remanded. Entitlement to service connection for a neck condition is remanded. Entitlement to service connection for a right hand condition is denied. FINDINGS OF FACT 1. In a December 2020 rating decision, service connection for headaches and traumatic brain injury was granted, resulting in a full grant of the benefit sought on appeal. 2. The preponderance of the evidence of record is against finding that the Veteran has had diagnoses associated with the left hip, right ankle, and right foot at any time during or approximate to the pendency of the claim. 3. The Veteran does not have malunion of the tibia and fibula of the right leg. CONCLUSIONS OF LAW 1. The criteria for dismissal of entitlement to service connection for headaches have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for dismissal of entitlement to service connection for traumatic brain injury have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 3. The criteria for service connection for a left hip condition are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for a right ankle condition are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 5. The criteria for service connection for a right foot condition are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 6. The criteria for a compensable rating for right leg fibula fracture have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5262. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1987 to September 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In October 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is associated with the claims file. The claims were previously remanded by the Board in June 2020. Dismissed Claims 1. Entitlement to service connection for headaches 2. Entitlement to service connection for a head injury The claims of entitlement to service connection for headaches and traumatic brain injury were initially denied in an August 2015 rating decision. The issue was properly appealed to the Board and remanded in January 2020 and June 2020 for additional evidentiary development. Subsequently, in December 2020, the RO granted entitlement to service connection for both disabilities. This is a full grant of benefits sought on appeal, and there is no case or controversy for the Board to adjudicate. Consequently, the claims are dismissed. 38 U.S.C. § 7105. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). When service connection is established for a secondary condition, the secondary condition shall be considered a part of the original condition. Id. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995). The United States Court of Appeals for Veterans Claims (Court) has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). In Saunders v. Wilkie, No. 2017-1466 (Fed. Cir. Apr. 3, 2018), the Federal Circuit held that the term "disability" as used in 38 U.S.C. § 1110" refers to the functional impairment of earning capacity, not the underlying cause of said disability," and held that "pain alone can serve as a functional impairment and therefore qualify as a disability." In other words, where pain alone results in functional impairment, even if there is no identified underlying diagnosis, it can constitute a disability. The Federal Circuit did emphasize that they were not holding a veteran could demonstrate service connection "simply by asserting subjective pain. To establish the presence of a disability, the veteran will need to show that her pain reaches the level of functional impairment of earning capacity." In other words, subjective pain in and of itself will not establish a current disability. Consideration should be given to the impact, or lack thereof, from pain, focusing on evidence of functional limitation caused by pain. VA is responsible for determining whether the evidence supports the claim, with the veteran prevailing, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). 3. Entitlement to service connection for a left hip condition 4. Entitlement to service connection for a right ankle condition 5. Entitlement to service connection for a right foot condition The Veteran asserts that he is entitled to service connection for left hip, right ankle, and right foot conditions. At the Board hearing, the Veteran stated that he injured his left hip during service while playing baseball, and twisted his right ankle while playing basketball. He also states that his right ankle and right foot pain are associated with his service-connected right tibia/fibula disability. The Board concludes that the Veteran does not have current diagnoses of left hip, right ankle, and right foot conditions, and has not had any diagnoses 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). Service treatment records from April and May 1989 show the Veteran fractured his right fibula. In February 1990, the Veteran was seen for left hip pain. The Board notes that the Veteran's service discharge medical examination report is not within the claims file. Post-service private medical records from February 2014 indicate the Veteran's left hip X-rays were unremarkable. April 2014 treatment notes show the physician determined that trochanteric bursitis was the cause of the Veteran's left hip pain. March 2017 radiology reports indicate images of the Veteran's right ankle and right foot were unremarkable. No other post-service treatment notes show diagnoses for the left hip, right ankle, or right foot. The Veteran was afforded VA medical examinations in August 2015, March 2020, and October 2020. In August 2015 and March 2020, the Veteran reported experiencing left hip pain associated with groin and/or testicular pain, and in October 2020, the Veteran stated he injured his hip while playing baseball during service. Regarding his right ankle, at each VA examination the Veteran reported experiencing intermittent pain as a result of his service-connected right tibia/fibula disability. At the August 2015 examination, the Veteran denied having any right foot pain. During the March 2020 examination, the Veteran reported having right foot pain radiating down from his right leg, but in October 2020 he stated that his right foot pain had resolved. Each of the VA examiners determined that the Veteran did not have diagnoses associated with the left hip, right ankle, or right foot. The examiners opined that it was less likely than not that the Veteran has left hip, right ankle, or right foot disabilities related to either his military service or his service-connected disabilities, as he does not have any current diagnoses While the Veteran believes he has current diagnoses regarding his left hip, right ankle, and right foot, he is not competent to provide a diagnosis in this case. The issue requires specialized medical education, which the Veteran does not have. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. The Board notes that in April 2014, the Veteran's private treatment notes show the Veteran's hip pain was diagnosed as trochanteric bursitis. Under 38 U.S.C. § 5110 (b)(2)(A), service connection may be established up to one year before the date of receipt of claim in certain circumstances where an original claim was filed as a fully-developed claim. This provision does not provide for an effective date more than one-year prior to an original claim. In the current case, the diagnosis of trochanteric bursitis was issued on April 8, 2014, more than one year prior to the filing of the fully-developed claim on May 5, 2015. Further, no other private or VA medical records document a diagnosis of the left hip. The Board assigns more probative weight to the medical evidence showing the Veteran does not have a left hip diagnosis. Additionally, the Board acknowledges that the Veteran has reported experiencing pain associated with the left hip, right ankle, and right foot since service. As noted above, pain alone may constitute a disability without an underlying diagnosis, but only if the pain results in functional impairment. At each VA examination, the Veteran demonstrated normal range of motion of the right ankle and right foot. At the August 2015 examination, the Veteran had reduced flexion of the left hip, but the examiner stated this limitation was due to body habitus, not a left hip disability. At the March 2020 and October 2020 examinations, the Veteran had normal range of motion of the left hip. The examiners determined that there was no functional loss or impairment associated with the left hip, right ankle, and right foot. In this case, the medical evidence of record does not demonstrate that the Veteran's reports of pain resulted in any functional impairment. His subjective complaints of pain alone cannot serve to establish current disabilities. Accordingly, entitlement to service connection for left hip, right ankle, and right foot conditions must be denied. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claims, that doctrine is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Increased Rating Disability evaluations are determined by applying the criteria set forth in the Schedule for Rating Disabilities to the Veteran's current symptomatology. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." The spine has no opposite joint. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505, 519 (2007). 6. Entitlement to an initial compensable rating for right leg fibula fracture The Veteran contends that he is entitled to a compensable rating for his status post right leg fibula fracture. At the Board hearing, the Veteran reported that his right leg caused weakness and instability. The Veteran's right leg disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5262, for impairment of the tibia and fibula. During the appeal period, changes were made to 38 C.F.R. § 4.71a, Diagnostic Code 5262. Effective February 7, 2021, VA amended its regulations governing the schedule of rating musculoskeletal disabilities. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5257, 5262). Claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the Veteran will be applied. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Under the old rating criteria for Diagnostic Code 5262, a 10 percent rating is warranted for malunion of the tibia and fibula with slight knee or ankle disability; a 20 percent rating when there is malunion of the tibia and fibula with moderate knee or ankle disability; a 30 percent rating for malunion of the tibia and fibula with marked knee or ankle disability; and a maximum rating of 40 percent for nonunion of the tibia and fibula with loose motion, requiring brace. 38 C.F.R. § 4.71a. According to MERRIAM WEBSTER'S COLLEGIATE DICTIONARY 999 (11th Ed. 2007), "slight" means small in amount. "Moderate" means limited in scope or effect. "Marked" means having a distinctive or emphasized character. Under the new rating criteria for Diagnostic Code 5262, a 40 percent rating is assigned when there is nonunion of the tibia and fibula with loose motion, requiring a brace. If there is malunion of the tibia and fibula, such should be evaluated under diagnostic codes 5256, 5257, 5260, or 5261 for the knee, or 5270 or 5271 for the ankle, whichever results in the highest evaluation. Diagnostic Codes 5256 and 5270 address ankylosis of the knee and ankle, respectively. The medical evidence of record does not indicate that the Veteran has ankylosis of the knee or ankle. Diagnostic Code 5257 was amended to address instability due to knee sprains, ligament tears, or diagnoses involving the patellofemoral complex (the quadriceps tendon, patella, and patellar tendon). The evidence of record does not indicate that the Veteran has diagnoses of a knee sprain, ligament tear, or patellofemoral complex. Diagnostic Codes 5260 and 5261 pertains to limited flexion and extension of the knee, respectively. Additionally, Diagnostic Code 5271 addresses limitation of motion of the ankle. The Board finds that the preponderance of the evidence is against a compensable rating for the Veteran's right leg disability. The Veteran was afforded knee and ankle VA examinations in August 2015, March 2020, and October 2020. As a diagnosis, the examiners noted the Veteran's 1989 right fibula fracture. The Veteran reported experiencing right leg pain when walking and exercising. An August 2015 X-ray indicated no abnormalities associated with the Veteran's healed fracture. At no point during the period on appeal was the Veteran noted to have malunion or nonunion of the tibia and fibula. Therefore, under the old and new rating criteria for Diagnostic Code 5262, the severity of the Veteran's service-connected right leg disability does not warrant a compensable disability rating. The Board has also considered the other Diagnostic Codes pertaining to the knee and leg. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits paying compensation twice for the same symptoms or functional impairment). However, the preponderance of the evidence is against finding that the Veteran has signs or symptoms related to the right leg to warrant a separate rating. The Board notes that any potential knee disabilities will be addressed separately, as the claim of service connection for a right knee disability has been remanded for further development. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran's claim for a compensable rating for right leg status post fibula fracture. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND 1. Entitlement to service connection for a low back condition The Veteran contends that a preexisting low back condition was aggravated by military service. At the Board hearing, he stated that participating in physical training, mechanical work, and riding over rough terrain during service caused back pain. Pre-service medical records document that the Veteran underwent back surgery for herniated discs prior to service entrance when he was 13 years old in September 1982. The Veteran's July 1987 service entrance medical examination and history reports note that the Veteran underwent back surgery prior to entering service, and that he experienced recurrent back pain. Following service separation, the Veteran sought treatment for low back pain. A February 2014 private treatment note indicates the Veteran reported having back pain, stiffness, and spasms for the past 30 years, and that the symptoms were worsening. A radiology report from February 2014 indicates the Veteran's lumbar spine was unremarkable. In April 2014, the Veteran was diagnosed with spondyloarthritis, and continued to report that he had back pain. After a March 2020 examiner concluded that the Veteran did not have a current back disability, the Board remanded the claim in June 2020 for a new opinion because the examiner did not consider the April 2014 diagnosis of spondyloarthritis or the Veteran's preexisting condition. In October 2020, a VA examiner did not discuss the 2014 diagnosis, and provided contradicting opinions. First, the examiner opined it was at least as likely as not that the Veteran clearly had degenerative disc disease of the spine and surgery prior to service, back pain recurred while in service, and his current pain are most likely due to the pre-service service. Then, the examiner opined that the Veteran's back condition clearly and unmistakable preexisted service, but the condition was not aggravated by service. As rationale, the examiner stated that because there were no service treatment records regarding the lumbar spine, then the condition was not made worse. The VA examiner also stated there was no evidence of disease of the back. Remand is required to obtain a new VA medical opinion. 2. Entitlement to service connection for a right knee condition is remanded. The Veteran contends that he is entitled to service connection for a right knee condition. The claim was remanded by the Board in June 2020, because the March 2020 VA examiner determined that there was no diagnosis associated with the Veteran's right knee, but did not consider whether pain resulted in functional impairment. New medical opinions were provided in October 2020. Unfortunately, the VA examiner provided conflicting statements. The VA examiner opined that it was at least as likely as not that the claimed condition was caused by or related to service. However, rationale for the opinion states there is no evidence that the Veteran was seen for a right knee problem in the military, and therefore it is less likely than not that his right knee problem started in the military. The VA examiner also stated that there is no evidence of disease of the right knee, yet listed his right knee diagnoses as right knee strain and tendonitis, but then concluded that the Veteran needs a current MRI to determine if he has a current right knee problem. Remand is required to obtain a new VA examination and medical opinion. 3. Entitlement to service connection for a neck condition The Veteran contends he is entitled to service connection for a neck condition. In the June 2020 remand, the Board found the March 2020 VA examiner's opinion inadequate because the examiner relied on a lack of medical records documenting the Veteran's neck symptomatology as the basis for determining the claimed condition is not related to his military service. In October 2020, a VA medical examiner diagnosed the Veteran with cervical spine degenerative disc disease, but opined that the condition was not related to his military service because the Veteran did not seek treatment until many years after service. However, the Veteran has reported having symptoms for 30 years. Remand is required to obtain a new VA medical opinion. 4. Entitlement to service connection for a right-hand condition Lastly, the Veteran also seeks service connection for a right-hand condition. The Board noted in the June 2020 remand that the March 2020 VA examiner determined that Veteran did not have a current right hand disability and that there was no referred pain from the neck to the right hand, but failed to discuss a prior diagnosis of carpal tunnel syndrome. In October 2020, a VA examiner also opined that the Veteran does not have a right-hand condition that is related to the military or any cervical spine condition. However, medical records submitted in November 2020 show the Veteran has carpal tunnel syndrome of the wrists, and possible chronic bilateral C7 radiculopathies. Remand is required to clarify whether the Veteran has a current right-hand diagnosis. Finally, because a decision on the remanded issue of entitlement to service connection for a neck condition could significantly impact a decision on the issue of entitlement to service connection for a right-hand condition, the issues are inextricably intertwined. The matters are REMANDED for the following action: 1. Obtain any outstanding VA medical records and associate them with the claims file. 2. Obtain a VA medical opinion from a clinician with sufficient expertise to diagnose and determine the nature and etiology of the Veteran's low back condition. If the clinician determines that an examination is necessary to assess the Veteran's condition, an examination should be scheduled. 3. The claims file should be made available to the examiner for review. Based on review of the record (and examination of the Veteran), the examiner should respond to the following: (a.) The examiner should address any diagnoses or conditions concerning the Veteran's back that are found in the service treatment records and state whether those conditions clearly and unmistakably preexisted service. Note: The Veteran underwent lumbar spine surgery prior to service in 1982. (b.) If diagnoses are found, the examiner should state whether any back disabilities that preexisted service, clearly and unmistakably worsened during service. (c.) If the examiner diagnoses any current low back conditions that did not preexist service, he or she must state whether it is at least as likely as not (probability of 50 percent or more) that the Veteran has a current back condition that onset in or is related to service. (d.) 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 opinions, including, but not limited to the Veteran's lay statements of sustaining injuries during an in-service MVA, and aggravation caused by physical training, working on tanks, and riding in vehicles over rough terrain. (e.) The examiner must provide rationale for all opinions. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. (f.) The examiner is advised that the lack of contemporaneous treatment records, alone, is an insufficient rationale for a negative opinion. 4. Schedule the Veteran for an MRI and VA examination with a clinician with sufficient expertise to diagnose and determine the nature and etiology of the Veteran's right knee condition. 5. The claims file should be made available to the examiner for review. Based on review of the record and examination of the Veteran, the examiner should respond to the following: (a.) Is it at least as likely as not (probability of 50 percent or more) that the Veteran has a current right knee condition that onset in or is related to service? (b.) Does the Veteran have a current right knee condition that is proximately due to, the result of, or aggravated by the service-connected right leg disability? (c.) 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 opinions. (d.) The examiner must provide rationale for all opinions. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. (e.) The examiner is advised that the lack of contemporaneous treatment records, alone, is an insufficient rationale for a negative opinion. 6. Obtain a VA medical opinion from a clinician with sufficient expertise to diagnose and determine the nature and etiology of the Veteran's neck condition. If the clinician determines that an examination is necessary to assess the Veteran's condition, an examination should be scheduled. 7. The claims file should be made available to the examiner for review. Based on review of the record (and examination of the Veteran), the examiner should respond to the following: (a.) Is it at least as likely as not (probability of 50 percent or more) that the Veteran has a current neck condition that onset in or is related to service? (b.) 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, including, but not limited to the Veteran's lay statements of sustaining injuries during an in-service MVA. (c.) The examiner must provide rationale for all opinions. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. (d.) The examiner is advised that the lack of contemporaneous treatment records, alone, is an insufficient rationale for a negative opinion. 8. Obtain a VA medical opinion from a clinician with sufficient expertise to diagnose and determine the nature and etiology of the Veteran's right hand condition. If the clinician determines that an examination is necessary to assess the Veteran's condition, an examination should be scheduled. 9. The claims file should be made available to the examiner for review. Based on review of the record (and examination of the Veteran), the examiner should respond to the following: (a.) Is it at least as likely as not (probability of 50 percent or more) that the Veteran has a current right-hand condition that onset in or is related to service? (b.) If it is determined the Veteran has a neck condition etiologically related to his service: Does the Veteran have a current right-hand condition that is proximately due to, the result of, or aggravated by a neck condition? (c.) 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. (d.) The examiner must provide rationale for all opinions. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. (Continued on the next page) (e.) The examiner is advised that the lack of contemporaneous treatment records, alone, is an insufficient rationale for a negative opinion. 10. Then, readjudicate the issues on appeal. If any claim remains denied, provide the Veteran and his representative a supplemental statement of the case. Cynthia M. Bruce Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Miller, 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.