Citation Nr: 21028728 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 16-36 136 DATE: May 11, 2021 ORDER Entitlement to service connection for a right ring finger disability is granted. REMANDED Entitlement to total disability for individual unemployability (TDIU) is remanded. FINDING OF FACT A right ring finger disability had its' onset on active duty. CONCLUSION OF LAW The criteria for entitlement to service connection for a right ring finger disability have been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from December 1988 to November 1992. The Board of Veterans' Appeals (Board) remanded these matters in November 2018 and July 2020 to obtain medical opinions. The requested development has been completed, and the appeal has returned to the Board for further appellate consideration. The Board is now satisfied there was substantial compliance with the remand. See Stegall v. West, 11 Vet. App. 268 (1998). The Service Connection Claim The Veteran contends that his right ring finger disability is related to active duty service. Specifically, he contends that he has suffered from pain and stiffness in his right finger since he injured it playing flag football during service and that his symptoms have worsened over the years. 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. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 C.F.R. § 3.303(d). Other specifically enumerated disorders will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In this regard, in order to establish service connection for the claimed disorders, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The requirement of a current disability is "satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim." See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. 38 U.S.C. § 5107(a). VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Based on a review of the evidence, the Board determines that service connection for a right ring finger disability is warranted. First, as to an inservice injury, the Veteran's service treatment records indicate that he suffered an avulsion fracture of the right ring finger playing football in September 1992 and was treated with a splint. Next, as to a current disability, the record shows that the Veteran sought treatment from a private orthopedist specialist in July 2012 reporting that he had experienced continuous symptoms since service, but that they have worsened over the years. He reported an inability to fully extend the finger, difficulty gripping too long, moderate pain, and daily flare-ups. Upon examination, the physician noted tenderness to palpation and decreased range of motion. In September 2013, the physician diagnosed with Veteran with proximal interphalangeal joint (PIP) arthritis from his injury in service. Moreover, the Board finds that both the Veteran and his wife are competent to report observing pain and stiffness in the finger as well as a limited ability to grip and hold things since the documented in-service injury because these symptoms come to them via their own senses. See Davidson, supra. On the other hand, the Board acknowledges that the negative evidence includes opinions from a May 2016 VA examiner and October 2020 VA examiner. However, the Board finds the May 2016 VA examiner's opinion was inadequate because the negative nexus opinion was based on an opinion that the Veteran does not have arthritis in his right finger, and the examiner did not consider whether his pain and other symptoms alone caused functional limitations. See Madden v. Gober, 125 F.3d. 1477 1481 (Fed. Cir. 1997) (holding that the Board is entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence). Similarly, the Board finds the May 2020 VA examiner's opinion that the right finger disability is less likely than not related to service because there is no objective evidence of arthritis and the Veteran's symptoms do not cause functional limitations not probative because the facts it relies on are directly contradicted by the medical and lay evidence above. Id. Therefore, the Board finds that the question of whether the Veteran's right ring finger disability had continued since service is in equipoise and with affording him the benefit of the doubt the Board concludes that it did, and service connection is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert, supra. REASONS FOR REMAND Entitlement to a TDIU is remanded. In the above decision, the Board has granted service connection for a right ring finger disability. To the extent that these grants may have a direct bearing on the Veteran's schedular entitlement to TDIU, the Board must remand this claim so that the regional office (RO) may institute the Board's orders and assign a rating for his right finger disability. The matter is REMANDED for the following action: The RO should issue a rating decision instituting the Board's grant contained herein. Thereafter, the RO should readjudicate the issue of entitlement to TDIU based on the Board's findings in the above decision. 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. NEIL T. WERNER Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Veltri, 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.