Citation Nr: 21029960 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 11-32 678 DATE: May 17, 2021 ORDER Service connection for a left hand palm scar is denied. REMANDED Entitlement to a disability rating in excess of 10 percent for right hand arthritis, status post trauma of the thumb is remanded. FINDING OF FACT The Veteran's left hand palm scar did not constitute a disabling condition for which service connection may be granted. CONCLUSION OF LAW The criteria for service connection for left hand palm scar are not met. 38 U.S.C. §§ 1110, 5107; 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 Army from August 1968 to July 1973. The Veteran died in June 2016 and the appellant is his surviving spouse and has been substituted in the place of the Veteran. 7/26/2016 Correspondence. This appeal comes before the Board of Veterans' Appeals (Board) from rating decisions in January 2012 and June 2015 by a Department of Veterans Affairs (VA) Regional Office (RO). In December 2020, the Board remanded the above issues for additional VA medical opinions to address certain inadequacies of prior examinations. In March 2021, a VA examiner provided new medical opinions. Regarding the Veteran's left hand palm scar, the examiner provided an opinion regarding functional impairment and the Board thus finds its instructions were substantially complied with. However, regarding the Veteran's right thumb condition, the examiner did not comply with the Board's instructions as will be discussed in greater detail below. See Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to service connection for a left hand palm scar is denied. In the Board's December 2020 order evaluating the claim for an increased rating for left hand arthritis, the Board found remand was necessary to determine whether a post-surgical left hand palm scar from arthritis surgery had resulted in any functional impairment, and thus might warrant service connection as a separate disability. For the reasons that follow, service connection for the scar is not warranted. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. In order to establish entitlement to service connection, there must generally be 1) 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) causal connection between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In September 2015, the Veteran underwent a VA examination for his hands and fingers and scars. The examiner wrote that the Veteran had undergone surgery for removal of a left hand scar in July 2014. The Veteran stated that the procedure provided some mild benefit, but he still had difficulty with his left hand. The examiner did not discuss whether the residual difficulty was due to the scar itself, or due to the Veteran's other service-connected hand disabilities. Later in the report, the examiner identified a 5 cm by 0.1 cm scar on the Veteran's left palm which was identified as not unstable, not painful, and not greater than 39 square cm in total area. See September 2015 Compensation and Pension (C&P) Examination. In March 2021, following the Board's remand, a VA examiner reviewed the Veteran's medical records, to include the September 2015 VA examination, to evaluate whether the identified left palm scar had resulted in functional impairment. The examiner wrote that the Veteran's record did not show any signs of functional impairment due to that scar. See March 2021 C&P Examination. No medical opinions or lay evidence of record contradict the above VA examiners' findings or opinions. Accordingly, the Board finds that the preponderance of evidence weighs against a finding that the Veteran's left hand palm scar resulted in any functional impairment, and thus it did not constitute a disabling condition for which service connection may be granted. See Saunders v. Wilkie, 886 F.3d 1356, 1368 (Fed. Cir. 2018) (holding that "disability" refers to functional impairment of earning capacity). Based on the foregoing, the first Shedden prong requiring evidence of a current disabling condition is not satisfied. The preponderance of the evidence is against the claim; thus, the benefit-of-the-doubt doctrine is not for application and the claim for service connection for the left hand palm scar must be denied. See 38 C.F.R. § 5107 (b). REASONS FOR REMAND Entitlement to a disability rating in excess of 10 percent for right hand arthritis, status post trauma of the thumb for accrued benefits purposes is remanded. In October 2017, the United States Court of Appeals for Veterans Claims (Court) remanded the claim for an increased rating for the Veteran's right thumb, as the previous Board denial had relied on inadequate VA examinations. Specifically, the Court directed that the claim should be re-evaluated consistent with the holding of Sharp v. Shulkin, which requires that VA examiners take additional steps when flare-ups are reported but the examination is not conducted during a flare-up. See October 2017 CAVC Decision; and see Sharp v. Shulkin, 29 Vet. App. 26 (2017). The Board's subsequent December 2020 remand directed that a VA examiner should address whether the additional five degree loss of range of motion during flare-ups, which had previously been estimated by a VA examiner in November 2019, resulted in loss of thumb motion that caused a gap of more than two inches (5.1 centimeters) between the thumb pad and the fingers, with the thumb attempting to oppose the fingers. The March 2021 examiner provided an opinion that no such measurements were ever shown by the Veteran's claim file. While this statement may be true, the opinion did not comply with the Board's instructions as it did not address the estimated five-degree loss of range of motion, or flare-ups of the Veteran's condition, in any way. Thus, the Board's instructions were not substantially complied with. Although further delay is regrettable, additional development is necessary before the Board may reach a decision. See Stegall v. West, 11 Vet. App. 268 (1998). This matter is REMANDED for the following action: Obtain an addendum opinion regarding flare-ups of the Veteran's right thumb (right hand arthritis, status post trauma of the thumb) condition. The examiner's opinion should acknowledge review of the Veteran's claim file including this order. The examiner should answer the following question: Would the Veteran's right-hand arthritic flare-ups, which were estimated by a VA examiner in November 2019 to have caused an additional five-degree loss of range of motion, at least as likely as not (50 percent or greater probability) have caused a gap of more than two inches (5.1 centimeters) between the thumb pad and the fingers, with the thumb attempting to oppose the fingers? The examiner's rationale should directly address the previously-estimated five degree loss of range of motion during flare-ups from a November 2019 VA examination. A comprehensive rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical, should be considered. (Continued on the next page) If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Hermsdorfer, 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.