Citation Nr: 22017454 Decision Date: 03/25/22 Archive Date: 03/25/22 DOCKET NO. 14-13 650 DATE: March 25, 2022 REMANDED Entitlement to service connection for a left pinky disability is remanded. REASONS FOR REMAND The Veteran was a member of the United States Army Reserve from November 1984 to April 1990, with periods of active duty training from June to September 1984 and June to September 1985, and with subsequent periods of active and inactive duty training. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded this appeal in December 2019 and August 2020. It has since been returned to the Board for further appellate review. Entitlement to service connection for a left pinky disability is remanded. In the August 2020 remand, the Board directed that the Agency of Original Jurisdiction (AOJ) take all appropriate steps to obtain financial records pertaining to the alleged payment by the Army of the Veteran's private hospital bill in 1988 for a left pinky finger injury, including but not limited to making requests of the Records Management Center (RMC) and the National Personnel Records Center (NPRC). It was instructed that if the records could not be obtained, the Veteran must be informed, and a negative response must be obtained from each office. Review of the electronic claims file demonstrates that requests for information were sent to NPRC and RMC in December 2020 and April 2021, with an additional follow-up request made to NPRC in October 2021. Although the AOJ sent a letter to the Veteran in January 2022 stating that it had determined that the requested records could not be located and were thus unavailable for review, they indicated that NPRC and RMC responded to the request with "No Response Received." While a response from RMC from December 2020, indicating that all available STRs (service treatment records) were previously uploaded into VBMS, has been associated with the file, the Board can locate no documentation that a negative response was actually received from NPRC. On remand, additional action should be taken to obtain a response from NPRC concerning potential documentation of the alleged left pinky injury and subsequent payment by the Army of the Veteran's private hospital bill from 1988, to ensure that there has been substantial compliance with the prior remand directive. See Stegall v. West, 11 Vet. App. 268, 271 (1998). While it is noted that the August 2020 Board remand appears to include a credibility determination as to whether the Veteran experienced an in-service event, illness, or injury, further review of the Veteran's military personnel records reflect a number of absences from single Unit Training Assembly in 1987 and 1988. Inasmuch as service connection based on a period of reserve service requires that a disability be related to injury or disease incurred during a period of ACDUTRA or injury from a period of INACDUTRA, verification of the Veteran's periods of such service is needed. Documentation of any medical profile or line of duty determination made concerning the Veteran's asserted left pinky finger injury may also shed light on the severity/extent of the described injury. In August 2020, the Board additionally directed that the Veteran be provided with a VA examination to determine the nature and etiology of his left pinky finger condition, emphasizing that the Veteran's lay statements regarding an injury to his pinky finger by a duffel bag while in service must be taken into account by the examiner in formulating the requested opinion. In the body of the remand, the Board noted that the Veteran is competent to describe symptoms and observable events he experienced during service, and further stated that the Veteran's lay statements were enough to demonstrate that he suffered an in-service event and injury to his left hand. Despite these findings, the August 2021 VA examiner appears to have completely discounted the Veteran's lay statements, concluding that because there are no service records or private records attesting to the Veteran's treatment at a private hospital during service, and no "buddy letters" corroborating the injury, "there is no evidence of this injury occurring while on active duty"; the examiner concluded that the claimed condition was thus less likely than not incurred in or caused by the claimed in-service injury, event, or illness. Unless the Board finds lay statements not competent or not credible, an examiner's opinion must address the Veteran's relevant lay statements in order to include enough detail to inform the Board's decision. See Miller v. Wilkie, 32 Vet. App. 249, 258-60 (2020). On remand, a supplemental medical opinion should be sought which considers the Veteran's lay statements, and addresses the evidence since service in explaining the basis for any opinion stated. The matters are REMANDED for the following action: 1. Take appropriate steps to obtain financial records from the U.S. Army Reserve, Department of Defense, or any other appropriate agency (including, but not limited to, requesting such from the National Personnel Records Center) pertaining to payment by the US Army Reserve/Department of Defense for the Veteran's hospital bill at Booth Memorial Hospital (New York Hospital Queens) in 1988. Documentation verifying the Veteran's completed periods of active duty for training and inactive duty for training in 1988 should also be obtained and added to the electronic record, as well as any documentation of line of duty determinations and/or physical profile(s). The AOJ must make as many requests as are necessary to obtain such records, and may only cease efforts upon receiving a negative response, in which case the response should be added to the electronic record along with a formal finding of unavailability of the records, and the Veteran should be informed. 2. After completing the above, refer the claims file to a suitably qualified medical professional for a supplemental medical opinion concerning the nature and etiology of the Veteran's left pinky finger disability. The claims file should be made available to the clinician for review in connection with providing the following opinion. If additional examination is found needed, the Veteran should be scheduled for an examination and provided with sufficient notice. Based on review of the record, the clinician is asked to state an opinion as to whether it is at least as likely as not that the Veteran's current left pinky finger disability arose during or is otherwise related to his active military service (i.e., during a period of training). The clinician is advised that the Veteran has described an incident during a period of training in 1988 where he sustained an injury to his little finger on the left hand when a duffel bag was thrown at him. For the purposes of providing the requested opinion, only, the clinician should accept the Veteran's description of the occurrence of this event/injury as fact. In providing the requested opinion, consider the Veteran's description of his in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? In addressing the above, the clinician's attention is directed to the following evidence: i. The Veteran's assertions that the injury from the duffel bag resulted in a fracture of his left pinky finger, and that he was taken to a civilian hospital where he was treated with a cast; ii. September 2011 private treatment record noting swelling at base of 5th phalanx of left hand, with X-ray showing fracture at proximal phalanx left hand and cyst in capitate; iii. A September 2012 statement provided by a Dr. Urena who opined, after the Veteran reported to her that the injury was sustained in 1988, that the left pinky finger injury was not properly treated and subsequently became deformed as years progressed; iv. Private treatment records prior to the Veteran's April 2011 claim for service connection for the left pinky condition noting no relevant past surgical history, documenting the Veteran's reports of neck pain radiating into his left upper extremity and hand, and including physical examination findings noting no abnormalities in the extremities (including an August 2009 treatment record focusing on the left hand following the Veteran's report of decreased sensation in that hand). A clear rationale must be provided for any conclusions or opinion stated. 3. After completing the above, and conducting any further development deemed necessary in light of the expanded record, readjudicate the issue of entitlement to service connection for a left pinky disability. If the benefit sought on appeal remains denied, issue the Veteran a supplemental statement of the case and allow him an opportunity to respond before returning the matter to the Board for further appellate review, if in order. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Solomon, 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.