Citation Nr: 21040122 Decision Date: 07/02/21 Archive Date: 07/02/21 DOCKET NO. 17-03 043 DATE: July 2, 2021 REMANDED Entitlement to service connection for a bilateral hand condition, to include as secondary to service-connected right-hand injury, is remanded. Entitlement to a compensable rating for service-connected right knee scar is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from April 1968 to April 1970. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2013 rating decision issued by a Department of Veterans Affairs (VA) regional office. As an initial matter, the Board notes that, in November 2012, the Veteran submitted informal claims of entitlement to increased rating for his service-connected right knee scar and service connection for bilateral hand neuropathy. See November 2012 Correspondence. The claims were denied in the October 2013 rating decision. Thereafter, the Veteran submitted an informal claim seeking both an increased rating for his service-connected right knee scar and to reopen the claim of entitlement to service connection for a bilateral hand condition. See March 2014 Correspondence. In an October 2014 rating decision, the claims were again denied. In March 2015, the Veteran submitted a NOD with respect to the October 2014 rating decision. The appeal was ultimately perfected. However, in September 2014, the Veteran submitted a Notice of Disagreement (NOD) with respect to the October 2013 rating decision. As the March 2014 informal claim essentially expressed disagreement with the October 2013 rating decision, and as the Veteran submitted a NOD as to the October 2013 rating decision within the applicable time period, the Board finds that the October 2013 rating decision did not become final and is the rating decision on appeal before the Board. See 38 C.F.R. § 3.156(b). Additionally, the Board notes that, as noted above, the Veteran filed a claim of entitlement to service connection for, inter alia, bilateral hand neuropathy. See November 2012 Correspondence. However, it is well settled that when a veteran makes a claim, they are seeking service connection for symptoms, regardless of how those symptoms are diagnosed or labeled. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Here, the Veteran's VA treatment records indicate that he has reported symptoms of bilateral hand pain, including of the joints, and numbness of hands. See Huntington VA Medical Center (VAMC) records, received May 2013, October 2016, September 2017, January 2018, and January 2020 in CAPRI. The Board also notes that it is well settled that VA is required to consider all theories of entitlement to VA benefits that are either raised by the claimant or raised by the record. See Schroder v. West, 212 F.3d 1265, 1271 (Fed. Cir. 2000); Robinson v. Mansfield, 21 Vet. App. 545, 553 (2008). Here, the Veteran, through his representative, has asserted that his claimed bilateral hand condition is related to his in-service shrapnel wounds (i.e. service-connected right hand injury). See January 2020 Correspondence. As such, the Board finds it appropriate to recharacterize the Veteran's claim as one of entitlement to service connection for a bilateral hand condition, to include as secondary to service-connected right-hand injury. 1. Entitlement to service connection for a bilateral hand condition, to include as secondary to service-connected right-hand injury, is remanded. The Board regrets the delay associated with this remand. However, based on a review of the evidence of record, the Board finds that a remand is necessary to allow the Agency of Original Jurisdiction (AOJ) to conduct additional development. First, a remand is necessary as the evidence indicates that there may be relevant VA records not associated with the claims file. Specifically, the record indicates that the Veteran has received, and potentially continues to receive, treatment at Cincinnati VAMC. See Cincinnati VAMC records, received May 2013 in CAPRI; June 2021 VA Form 27-0820. However, no records relating to such treatment after January 2009 have been associated with the claims file. As such, a remand is necessary to ensure that all relevant VA treatment records have been obtained and associated with the electronic claims file. Second, a remand is necessary to allow the AOJ provide the Veteran with a VA examination regarding the nature and etiology of his claimed bilateral hand condition. A medical examination is necessary when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing an in-service event, injury, or disease, and (3) an indication that the disability or symptoms may be associated with service or with another service-connected disability, but (4) insufficient medical evidence of record for the Secretary to make a decision on the claim. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see also 38 U.S.C. § 5103A(d)(2). Here, the Veteran's VA treatment records indicate that he has reported experiencing bilateral hand pain and numbness. See Huntington VAMC records. Additionally, the Veteran has asserted that his current hand symptoms are related to shrapnel wounds he received during service (i.e. his service-connected right-hand injury). See January 2020 Correspondence. However, there is no medical opinion of record regarding the nature or etiology of the Veteran's claimed bilateral hand condition. As such, the Board finds that the McClendon requirements are met, and the Veteran should be afforded a VA examination to determine the nature and etiology of his claimed bilateral hand condition. 2. Entitlement to a compensable rating for service-connected right knee scar is remanded. The Board regrets the delay associated with this remand. However, based on a review of the evidence of record, the Board finds that a remand is necessary to allow the AOJ to conduct additional development. First, as discussed above, a remand is necessary as the evidence indicates that VA records have not been associated with the claims file. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c); Bell v. Derwinski, supra. Second, a remand is necessary to provide the Veteran with an examination regarding the current severity of his service-connected right knee scar. The Veteran was last afforded a VA examination regarding his right knee in August 2016. In this examination, the examiner noted that the Veteran's right knee scar was not painful or unstable and measured 2.25 square centimeters. See August 2016 VA Knee and Lower Leg Conditions Disability Benefits Questionnaire (DBQ). The evidence of record indicates that the Veteran's right knee scar may have worsened since this examination. Specifically, the Veteran, through his representative, has asserted that the scarring of his right knee is painful. See January 2020 Correspondence. The Board acknowledges that, generally, a veteran is competent to report symptoms such as pain. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, as noted above, the August 2016 VA examination found that the Veteran's right knee scar was not painful, but did note a diagnosis of severe right knee degenerative joint disease. See August 2016 VA Knee and Lower Leg Conditions DBQ. Additionally, the Veteran's VA treatment records are silent with respect to complaints of experiencing pain associated with his right knee scar. However, such records do reveal complaints of right knee joint pain. See Huntington VAMC records. As such, the Board finds that it is unclear if the Veteran's reported symptom of pain is attributable to his service-connected right knee scar or to his currently non-service-connected right knee degenerative joint disease. Therefore, based on the statement indicating a manifestation of pain, and the uncertainty regarding the etiology of such pain, the Board finds that a new VA examination is needed to ascertain the current severity of the Veteran's service-connected right knee scar. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). Accordingly, the matters are REMANDED for the following action: 1. With the Veteran's assistance as appropriate, obtain and associate with the electronic claims file any outstanding pertinent medical records, whether VA or private, including records relating to treatment at Huntington VAMC from March 2021 to current, and Cincinnati VAMC from January 2009 to current. Pursuant to 38 C.F.R. § 3.159(e), any efforts to secure these records MUST be documented in the electronic claims file, and the Veteran must be informed if any of these records are unable to be secured. 2. After completing the development above, and any additional development warranted by the record, schedule the Veteran for an examination with an appropriate clinician regarding the nature and etiology of his claimed bilateral hand condition. The entire claims file must be provided to, and reviewed by, the examiner, and any indicated tests, studies, or evaluations should be performed. The examiner is asked to: (a.) Obtain the Veteran's detailed lay history, including onset and progression of symptomatology and employment. (b.) For each diagnosed hand condition, opine as to whether it is at least as likely as not (i.e. a 50 percent or greater probability) that such condition is a residual of his service-connected right hand injury. (c.) For each diagnosed hand condition not identified as a residual above, address the following: i. Whether it is at least as likely as not (i.e. a 50 percent or greater probability) that such condition incurred in or is otherwise related to the Veteran's active duty service. ii. Whether it is at least as likely as not (i.e. a 50 percent or greater probability) that such condition was caused by a service-connected condition, to include the Veteran's right hand injury. iii. Whether it is at least as likely as not (i.e. a 50 percent or greater probability) that such condition underwent an incremental increase (aggravated), regardless of permanence, due to a service-connected condition, to include the Veteran's right hand injury. (d.) In formulating the requested opinions, the examiner is instructed to consider and specifically address the Veteran's July 1969 right hand injury. The term incremental increase in disability means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. Moreover, any incremental increase in disability need not be permanent. The term at least as likely as not does not mean within the realm of medical possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion (e.g., etiology) as it is to find against the conclusion. Any opinion expressed by the examiner should be accompanied by a complete rationale. If medical literature is relied upon in rendering a determination, the examiner should identify and specifically cite each reference material utilized. If the examiner is unable to offer an opinion without resort to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. The examiner is reminded that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinions. 3. After completing the development in Section One above, and any additional development warranted by the record, schedule the Veteran for an examination with an appropriate clinician regarding the current severity of his service-connected right knee scar. The entire claims file must be provided to, and reviewed by, the examiner, and any indicated tests, studies, or evaluations should be conducted. The examiner is asked to: (a.) Obtain the Veteran's detailed lay history, including onset and progression of symptomatology. (b.) Complete the relevant section of the appropriate rating examinations. (c.) Identify the number of scars present and state whether each identified scar is unstable or painful. (d.) Identify whether any scar is deep associated with underlying soft tissue damage or causes limited motion. (e.) Identify whether any scar has any other disabling effects. (f.) Specifically consider and address the Veteran's January 2020 assertion that his right knee scar is painful. Any opinion expressed by the examiner should be accompanied by a complete rationale. If medical literature is relied upon in rendering a determination, the examiner should identify and specifically cite each reference material utilized. If the examiner is unable to offer an opinion without resort to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. The examiner is reminded that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinions. 4. The AOJ must review the claims file and ensure that the foregoing development action has been completed in full. If any development action is incomplete, the appropriate corrective action must be implemented. If any report or opinion does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. K. Anderson Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. T. Martin III, 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.