Citation Nr: 22013563 Decision Date: 03/09/22 Archive Date: 03/09/22 DOCKET NO. 19-29 951 DATE: March 9, 2022 REMANDED Entitlement to service connection for a left thumb condition is remanded. Entitlement to service connection for a right thumb condition is remanded. Entitlement to service connection for a low back disability is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1996 to July 2000. This appeal to the Board of Veterans' Appeals (Board) is from a February 2019 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In December 2020, in support of these claims, the Veteran testified at a "virtual" teleconference hearing before the undersigned Veterans Law Judge of the Board. A transcript of the proceeding is of record. 1. Entitlement to service connection for a left thumb condition is remanded. 2. Entitlement to service connection for a right thumb condition is remanded. 3. Entitlement to service connection for a low back disability is remanded. The Veteran has not been afforded a VA examination in response to these claims. VA's duty to assist includes providing a medical examination or obtaining an opinion when needed to assist in deciding a claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). During his December 2020 hearing before this Board, the Veteran testified that he did not sustain specific injuries to his thumbs or low back, per se, during his service but nonetheless believes that years of heavy lifting, as a storekeeper on the USS JFK, took a toll on his thumbs and low back and resultantly are the source or cause of these disabilities now being claimed. He further testified that, although he experienced thumb and back pain during his service, he admittedly did not seek any treatment because he "just went along" and "did what he was told". He further indicated that he has had ongoing symptoms continuously since his service. Notably, although the Veteran's service treatment records (STRs) are not associated with his claims file and VA has determined they are unavailable and likely not obtainable, so not forthcoming, he has conceded not seeking or receiving any relevant treatment during his service. Thus, the absence of his STRs ultimately is immaterial to resolution of these claims. That said, in this circumstance, VA still has a heightened duty to consider the applicability of the benefit of the doubt rule, to assist him in developing his claims, and to explain its findings and conclusions. See Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005); Russo v. Brown, 9 Vet. App. 46, 51 (1996); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). And because missing STRs, alone, while indeed unfortunate, do not obviate the need for him to still have competent and credible evidence supporting his claims for service connection by suggesting a correlation between his claimed conditions and his military service, the Board is having him examined for these needed medical nexus opinions. See Milostan v. Brown, 4 Vet. App. 250, 252 (1993) (citing Moore v. Derwinski, 1 Vet. App. 401, 406 (1991) and O'Hare, 1 Vet. App. at 367). Accordingly, these claims are REMANDED for the following action: Schedule the Veteran for a VA examination for medical opinions concerning the nature and etiology of his claimed thumb and low back disabilities, particularly in relation to his military service. To assist in making this determination, the examiner should elicit from the Veteran a detailed history regarding the onset and progression of relevant symptoms. The examiner should consider all relevant evidence, including as discussed in this remand, so it must be made available to and reviewed by the examiner in conjunction with the examination. Based on this review of the record and the examination and interview of the Veteran, the examiner is asked to provide opinions responding to the following: (a) Identify (by diagnosis) each thumb and low back disability found on examination or shown during the pendency of these claims, even if now resolved. (b) Also identify the likely etiology of each thumb and low back disability confirmed to exist or have existed during the pendency of this appeal, even if now resolved. Specifically, is it at least as likely as not (a 50 percent or greater probability) the disability is related or attributable to the Veteran's military service. If the disability involves arthritis, also indicate whether it initially manifested within the first year after his service to, in turn, warrant presuming it was incurred during his service or whether it is otherwise related or attributable to his service, even if not initially diagnosed until after his service. When responding, regardless of whether favorably or unfavorably, the examiner must provide rationale preferably citing to findings or other supporting evidence in the file and/or accepted medical authority. The absence of evidence of treatment for the Veteran's claimed disabilities during his service cannot, alone, be the sole or exclusive reason for providing an unfavorable opinion especially since his STRs are not in the file and apparently unobtainable. If, however, in the years since his service there is reasonable expectation of earlier indication of these now claimed disabilities, either in the way of relevant subjective complaint or objective clinical finding, the examiner may consider this as a factor but also must discuss why this expectation is medically reasonable. KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. Poindexter 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.