Citation Nr: 21029650 Decision Date: 05/14/21 Archive Date: 05/14/21 DOCKET NO. 14-35 062 DATE: May 14, 2021 ORDER Entitlement to service connection for left thumb disability, claimed as numbness in left thumb with continuous shaking, is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, the Veteran's current left thumb disability began during active service, or is otherwise related to an in-service injury, event, or disease. CONCLUSION OF LAW The criteria for entitlement to service connection for the Veteran's current left thumb disability have been met. 38 U.S.C. §§ 1110, 5107 (b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1966 to August 1968. This case comes to the Board of Veterans' Appeals (Board) on appeal from a March 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), in Louisville, KY. By way of background, this matter was remanded by the Board in a decision issued in May 2020 for further development pursuant to directives in an August 2019 Memorandum Decision by the United States Court of Appeals for Veterans Claims. In the Board's May 2020 decision the RO was ordered to request an examination to determine the manifestations and etiology of the Veteran's left thumb disability. The Board finds that the AOJ has substantially complied with the prior remand directives, to the extent possible. See Stegall v. West, 11 Vet. App. 268 1998) (holding that a remand confers on the claimant, as a matter of law, the right to compliance with the remand order). See also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) and Dyment v. West, 13 Vet. App. 141, 146-47 (1999) aff'd, Dyment v. Principi, 287 F.3d 1377 (2002) (holding that further remand not necessary under Stegall where the Board's remand instructions were substantially complied with). In summary, the duties imposed by the VCAA have been considered and satisfied. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with the claim herein decided. Therefore, there is no prejudice to the Veteran in the Board proceeding to a decision on these matters, at this juncture. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Accordingly, the Board finds that the Remand directives were substantially complied with and, thus, there is no Stegall violation in this case. The file has been returned to the Board and the matter is now properly before the Board for adjudication. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). To establish a right to compensation for a present disability, 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 - the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Entitlement to service connection for left thumb disability, claimed as numbness in left thumb with continuous shaking, is granted. The Veteran asserts that his left thumb disability is related to service. Specifically, the Veteran asserts that he sustained a laceration to his left thumb when he cut it on a tin can during active service, resulting in his current left thumb disability. The Veteran asserts that he was treated in the Emergency Room at the Fort Campbell Hospital where he received stitches for the injury. The Veteran noted that he directly contacted the hospital to retrieve his records and was informed that the medical records were in the retired medical records files in St. Louis. See September 2014 Form 9. The service treatment records are silent for complaints of a thumb laceration or fracture, or any treatment or diagnosis regarding the left thumb. On his June 1968 service separation examination, the upper extremities were normal on clinical evaluation. The record includes a November 1966 letter authored by the Veteran to his wife in which he indicates that he had cut his left thumb and was treated. The Veteran's VA treatment records show he was evaluated "many years ago" with a fractured thumb and pin. See Medical Treatment Records Received March 2013. See CAPRI Records Received March 2021. The Board notes that a Memorandum received December 2012 states that it was determined that the outpatient records from Blanchfield Army Community Hospital at Fort Campbell, Kentucky, are unavailable for review for September 1966 through December 1967. The Veteran was afforded a VA examination in March 2021 to evaluate his left thumb disability. The examiner noted that the Veteran has paresthesia of the left thumb. The initial range of motion measurements for the Veteran's left hand were noted to be abnormal. The examiner noted that the Veteran reported that he was treated at Fort Campbell Hospital emergency room in September 1966 and December 1967 for his left hand and received stitches. The examiner opined that the Veteran's left thumb disability was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner indicated that the Veteran's service records were reviewed. The examiner acknowledged that although there were no medical records that showed that the Veteran had stitches while in service, there was a letter written in November 1966 which discussed the Veteran's injury to his left thumb. The examiner also noted that the Veteran began service in August 1966 and stated that the letter is the only evidence of a left thumb laceration. As rationale, the examiner stated that the Veteran does have a diagnosis of paresthesia in the left thumb, but since there is no evidence of any medical care for this in service it is less likely than not that any acquired left thumb disability is related to in-service injury. The Board must fully consider the lay evidence of record. Davidson v. Shinseki, 581 F.3d 1313(Fed. Cir. 2009). A layperson is competent to report on the onset of disability and, when applicable, continuity of his or her current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki,24Vet. App.428(2011); see also Jandreau, supra. The Board assigns significant weight to the Veteran's competent and credible lay statements regarding the onset of his left thumb disability and assigns significant weight to the letter that was written to his wife during his active duty service, detailing his thumb injury as well as the treatment records which refer back to the initial left thumb injury during service. Based on these factors, the Board finds the Veteran competent to establish the etiology of his left thumb disability. The Board finds that the March 2021 VA examiner inappropriately relied on the absence of in-service reports of treatment of a left thumb disability as the sole basis for finding that the Veteran's injury was not related to active duty service. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (examination was inadequate where the examiner did not comment on the appellant's report of in-service injury and instead relied on the absence of evidence in the service medical records to provide a negative opinion). Moreover, the Veteran's service treatment records during this period were found to be unavailable. Thus, the Board affords the March 2021 VA examination little to no probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). With resolution of reasonable doubt in the Veteran's favor, service connection for a left thumb disability is warranted. 38 C.F.R. § 3.102. Tiffany Dawson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Dorsey-Kwansa, 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.