Citation Nr: 22011668 Decision Date: 03/01/22 Archive Date: 03/01/22 DOCKET NO. 15-15 321 DATE: March 1, 2022 ORDER Entitlement to service connection for right shoulder strain is granted. Entitlement to service connection for a right hand disability, to include trigger finger, is granted. FINDINGS OF FACT 1. The record evidence shows that the Veteran served in combat in Vietnam; thus, his statements concerning in-service right shoulder and right hand injuries while in combat are deemed credible because they are consistent with the facts and circumstances of his honorable combat service. 2. The record evidence shows that the Veteran has reported consistently that he incurred injuries of the right shoulder and right hand during active combat service in Vietnam and experienced continuous post-service right shoulder and right hand disability. 3. Resolving any reasonable doubt in the Veteran's favor, the record evidence supports finding that his current right shoulder disability and right hand disability, to include trigger finger, are related to active service. CONCLUSIONS OF LAW 1. The criteria for service connection for right shoulder strain have been met. 38 U.S.C. §§ 1110, 1154, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2020). 2. The criteria for service connection for a right hand disability, to include trigger finger, have been met. 38 U.S.C. §§ 1110, 1154, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from January 1970 to September 1971, including in combat in the Republic of Vietnam from March to July 1971. This appeal has a long procedural history. It comes before the Board of Veterans' Appeals (Board) on appeal from a March 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). A videoconference Board hearing was held in October 2018 before the undersigned Veterans Law Judge and a copy of the hearing transcript has been added to the record. In June 2019, the Board remanded the currently appealed claims to the RO for additional development. A review of the claims file shows that there has been substantial compliance with the Board's remand directives. The Board directed the RO to obtain the Veteran's complete VA outpatient treatment records and schedule him for examinations to determine the nature and etiology of his right shoulder and right hand disabilities. Additional records subsequently were associated with the claims file. And the requested examinations occurred in May 2021. See Stegall v. West, 11 Vet. App. 268 (1998); see also Dyment v. West, 13 Vet. App. 141 (1999) (holding that another remand is not required under Stegall where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). The Board acknowledges that, in the June 2019, it asked the RO to obtain all of the Veteran's VA outpatient treatment records dating back to September 1971 when he separated from active service. The Board also acknowledges that, in response to a request for records, the RO was informed by the Veterans Health Administration (VHA) in July 2021 that there were no VA treatment records dated prior to March 2014 available for the Veteran and all available records were associated with the claims file. In cases where relevant records are unavailable through no fault of the claimant, there is a heightened obligation to assist the claimant in the development of his case. O'Hare v. Derwinski, 1 Vet. App. 365 (1991). The Court has held that VA's efforts to obtain relevant records shall continue until the records are obtained or unless it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile. Hayre v. West, 188 F.3d 1327 (Fed. Cir. 1999); see also McCormick v. Gober, 14 Vet. App. 39 (2000). The Board finds that all of the Veteran's available VA treatment records are associated with the claims file and, in light of the VHA response in July 2021, no additional records exist and further efforts to obtain them would be futile. In a September 2020 rating decision, the RO granted a claim of service connection for PTSD, assigning a 50 percent rating effective April 2, 2013. There is no subsequent correspondence from the Veteran expressing disagreement with the rating or effective date assigned. Accordingly, an issue relating to service connection for PTSD is no longer in appellate status. See Grantham v. Brown, 114 F .3d 1156 (1997). Because the Veteran currently lives within the jurisdiction of the RO in Anchorage, Alaska, that facility has jurisdiction in this appeal. The Board is persuaded that the evidence supports granting the Veteran's claims of service connection for a right shoulder disability and for a right hand disability, to include trigger finger. The Veteran essentially contends that he injured his right shoulder and right hand during combat in Vietnam and experienced continuous post-service disability. The Board finds that the record evidence reasonably supports his assertions regarding an etiological link between his current right shoulder and right hand disabilities and active service. The Board notes initially that the Veteran's DD Form 214 shows that he was awarded the Combat Infantryman Badge (CIB), he served in Vietnam from March 3, 1971, to July 31, 1971, and his military occupational specialty (MOS) was light weapons infantryman. Thus, the Board finds that his lay statements and hearing testimony concerning in-service right shoulder and right hand injuries while in combat in Vietnam are credible because they are consistent with the facts and circumstances of his honorable combat service. The record evidence also shows that the Veteran currently experiences right shoulder and right hand disabilities which may be related to active service. For example, on VA shoulder and arm conditions Disability Benefits Questionnaire (DBQ) in May 2021, the Veteran's complaints included right shoulder problems since injuring his right shoulder while in combat in Vietnam. The VA examiner reviewed the Veteran's electronic claims file, including service treatment records and post-service VA treatment records. The Veteran also reported a post-service right shoulder injury "while waterboarding." His right shoulder felt weak and caused difficulty pulling and reaching overhead. Exercise made his right shoulder feel better. He denied any flare-ups of right shoulder pain. He experienced functional loss or impairment which he described as decreased range of motion, particularly in extension and forward flexion. Physical examination of the right shoulder showed pain on active motion which caused functional loss, mild tenderness to palpation in the right lateral shoulder in the deltoid area, and a positive empty-can test. The diagnosis was right shoulder strain. On VA hand and fingers DBQ in May 2021, the Veteran's complaints included right hand pain since injuring his right hand while in combat in Vietnam. The VA examiner reviewed the Veteran's electronic claims file, including service treatment records and post-service VA treatment records. The Veteran reported that his right ring finger began to curl "about five years after service" separation. His right hand felt weak. He had surgery in November 2015 on his right ring finger for trigger finger condition. He experienced moderate flare-ups of right hand and finger pain which he described as an ache in the palm of his hand which lasted for a few minutes "if he tries to grab or pull something with the right hand too hard." He also experienced functional loss or impairment which the VA examiner described as, "The right hand is already limited secondary to surgery of ring finger [and] pain and limited range of motion...do not allow him to fully grasp something like a handle on luggage." The right hand was status-post surgery of the palm at the fourth digit into the palm itself. Physical examination of the right hand showed mild tenderness to palpation in the ring finger and into the palm, mild tenderness to palpation of the soft tissues on palmar surface of the ring finger from the proximal interphalangeal (PIP) joint into the center of the hand, pain on active motion causing functional loss with limitation of motion of the fourth finger and ring finger due to a contracture which was treated surgically, and 5/5 hand grip. The diagnosis was right trigger finger. In a May 2021 opinion, the VA examiner who conducted the VA shoulder and arm conditions DBQ and VA hand and fingers DBQ opined that it was less likely than not that the Veteran's right shoulder disability and right hand disability were related to active service. The rationale for this opinion was based on a review of the claims file. The rationale also was that there was no evidence in the Veteran's service treatment records of either a right shoulder or right hand disability during service. The Court has held that the Board is free to assess medical evidence and is not compelled to accept a physician's opinion. Wilson v. Derwinski, 2 Vet. App. 614 (1992). The Board notes that the absence of contemporaneous records does not preclude granting service connection for a claimed disability. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (finding lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr v. Nicholson, 21 Vet. App. 303 (2007) ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms"). Having reviewed the May 2021 VA examiner's opinions, the Board finds that they are not probative on the issues of whether the Veteran's right shoulder disability and right hand disability, to include trigger finger, are related to active service. This examiner impermissibly found the lack of evidence of in-service complaints of or treatment for disabilities of the right shoulder and right hand to be persuasive support for his negative medical nexus opinions. This clearly violates the Court's holdings in Buchanan and Barr and renders these opinions inadequate for VA adjudication purposes. It is undisputed that the Veteran injured his right shoulder and right hand while in combat in Vietnam. It also is undisputed that he currently experiences right shoulder strain and right trigger finger which he asserts are related to active service. The Board has found the May 2021 VA examiner's negative medical nexus opinions to be inadequate for VA adjudication purposes because they rely solely on the lack of in-service complaints of and treatment for right shoulder and right hand disabilities as rationale. The Board notes in this regard that it is unlikely that a Veteran serving in an active combat role and coming under enemy fire, as the Veteran reported that he came under enemy fire when he injured his right shoulder and right hand while he was in Vietnam, is going to seek medical treatment for anything other than the most serious or potentially life-threatening injuries while in combat. Thus, it is of no moment that the Veteran did not seek medical treatment for injuries to the right shoulder and right hand sustained while in combat in Vietnam. In any event, he consistently has maintained that, after he injured his right shoulder and right hand in combat in Vietnam, he experienced continuous post-service right shoulder and right hand disability. The Board again notes that his post-service VA outpatient treatment records only date from approximately March 2014. These records do not show that he complained of or sought treatment for either a right shoulder or a right hand disability in recent years. Nevertheless, and after resolving any reasonable doubt in the Veteran's favor, the Board finds that service connection for right shoulder strain and for a right hand disability, to include trigger finger, is warranted. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael T. Osborne, 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.