Citation Nr: 22014302 Decision Date: 03/12/22 Archive Date: 03/12/22 DOCKET NO. 19-05 019 DATE: March 12, 2022 REMANDED Entitlement to service connection for a right-hand disability is remanded. Entitlement to service connection for a right middle finger disability is remanded. Entitlement to service connection for carpal tunnel syndrome (CTS) of the right upper extremity is remanded. Entitlement to service connection for CTS of the left upper extremity is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1979 to August 2000. This appeal to the Board of Veterans' Appeals (Board) is from a January 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified in support of these claims during a "virtual" teleconference hearing in July 2021 before the undersigned Veterans Law Judge of the Board. A transcript of the hearing is of record. In August 2021, the Board summarily dismissed several other claims that also had been appealed since the Veteran withdrew them during her hearing. The Board also determined there was new and material evidence so reopened a claim for service connection for an acquired psychiatric disorder. But rather than immediately readjudicating that claim on its underlying merits, de novo, the Board instead then proceeded to remand this claim and the remaining others back to the RO (Agency of Original Jurisdiction (AOJ)) for further development and consideration including especially having the Veteran examined for needed medical opinions concerning the origins of her right hand, right middle finger, bilateral (left and right) CTS and mental disabilities, particularly in relation to her military service. Unfortunately, there has not been the required compliance, even acceptable substantial compliance, with that remand directive at least not as concerning the claims for right hand, right middle finger, left and right CTS disabilities. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions); but see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only "substantial" rather than strict or exact compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999). However, as concerning the claim for service connection for an acquired psychiatric disorder including posttraumatic stress disorder (PTSD) owing to military sexual trauma (MST), there was the required compliance. And, in fact, in a November 2021 rating decision since issued, on remand, the Appeals Resource Center (ARC) granted this claim. If the Veteran disagrees with the 70 percent initial rating for this now service-connected disability and/or the effective date of August 18, 2015, she must separately appeal these "downstream" issues. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second Notice of Disagreement (NOD) thereafter must be timely filed to initiate appellate review of the claim concerning "downstream" issues such as the compensation level assigned for the disability and effective date). 1. Entitlement to service connection for a right-hand disability is remanded. 2. Entitlement to service connection for a right middle finger disability is remanded. 3. Entitlement to service connection for CTS of the right upper extremity is remanded. 4. Entitlement to service connection for CTS of the left upper extremity is remanded. In the prior August 2021 remand, the Board directed that the RO (AOJ) schedule the Veteran for VA examinations for needed medical opinions concerning the origins of her right hand, right middle finger, and bilateral CTS disabilities in relation to her military service. To this end, the remand directives specified that the examiner must address whether these claimed conditions are the result of the Veteran's military occupational specialty (MOS) of administrative specialist, and that "the mere absence of evidence of treatment for these claimed conditions in [her] service treatment records (STRs) cannot, alone, be sufficient rationale for disassociating them from her service." See, e.g., Dalton v. Nicholson, 21 Vet. App. 23 (2007) (examination inadequate where the examiner did not comment on the Veteran's report of injury in service and instead relied on the absence of evidence in the STRs to provide an unfavorable opinion). In October 2021, the Veteran underwent these needed VA examinations. The examiner provided the requested opinions on etiology, however, in the rationales simply stated that she was unable to find evidence in the STRs pertaining to these claimed disabilities. Further, she pointed out that there was a "gap in care" for over 10 years from the time of the Veteran's separation from service until initial treatment for these claimed disabilities. But, according to 38 C.F.R. § 3.303(b), the correct legal standard is continuity of symptoms, not instead continuity of care (chronicity of care). See Savage v. Gober, 10Vet. App. 488, 496 (1997) (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)). In Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006), the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court) held that lay evidence is potentially competent to support the presence of a disability, even where not corroborated by contemporaneous medical evidence such as treatment records. So, the mere absence of evidence does not necessarily equate to unfavorable evidence. Indeed, there are a line of precedent cases supporting this proposition. See, e.g., Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (en banc); Horn v. Shinseki, 25 Vet. App. 231, 239 (2012); Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011). The Federal Circuit Court also has held however that, while the absence of contemporaneous records does not, in and of itself, render lay testimony not credible, the Board may weigh the absence of contemporaneous records when assessing the credibility of lay evidence. See Buchanan, 451 F.3d at 1336 ("Nor do we hold that the Board cannot weigh the absence of contemporaneous medical evidence against the lay evidence of record."). Moreover, although the Board cannot reject a claimant's statements merely because he/she is an interested party, the claimant's interest may affect the credibility of their testimony when considered in light of other factors. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991); accord Buchanan, 451 F.3d at 1337 (holding that "the Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias . . . ."). To permit the examiner to consider these claims in compliance with these precedent cases, the Board is having her provide more medical comment (a supplemental opinion) including in terms of addressing why the Veteran's claimed disabilities are unrelated to the duties and responsibilities intrinsic to her MOS of administrative specialist. Accordingly, these claims again are REMANDED for the following still additional development and consideration: Obtain supplemental comment (an addendum opinion) from the October 2021 examiner regarding whether the Veteran's right-hand disability, right middle finger disability, and bilateral CTS are at least as likely as not attributable to her MOS, i.e., the result of her duties and responsibilities as an administrative specialist, which included repetitive hand, finger, and wrist movements while typing and doing filings, etc. To address failings in the October 2021 opinion, the examiner must bear in mind that the mere absence of evidence of treatment for these claimed conditions in the Veteran's STRs cannot, alone, be sufficient rationale for disassociating them from her service. However, it is permissible to consider this as a factor, just not the only factor, in determining whether they are attributable to her service. Also, if, as seems apparent, the examiner believes it is reasonable to have expectation of some documentation of these disabilities in the STRs or prior to initial diagnosis, then explanation of why this expectation is reasonable must be provided. In other words, there must be more explanation of the significance of a "gap in care" for over 10 years after service, and the examiner should not impermissibly equate continuity of symptoms with continuity of care. Rationale for the opinions therefore is essential, regardless of whether favorable or unfavorable to these claims, preferably citing to findings or other evidence in the file supporting conclusions and/or accepted medical authority KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Pak 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.