RESIDUALS OF FRACTURES

Summary

The Veteran served in the Air Force from May 1982 to April 1985. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2016 rating decision concerning claims for service connection. The Veteran testified via virtual hearing in February 2021. The Board previously remanded the claim for a respiratory disability in April 2023 for additional development, including obtaining adequate VA medical opinions. However, the Board found the subsequent VA medical opinion inadequate because the examiner improperly relied on the lack of in-service medical evidence and failed to reconcile findings with the Veteran's testimony of asthmatic bronchitis and a May 1983 pulmonary function test showing mild flow obstruction. Consequently, the respiratory disability claim is remanded again for a new, adequate VA medical opinion addressing these specific issues. For the right hand residuals claim, the Veteran asserted a direct service connection. Service treatment records noted right hand pain in August 1983, a fracture of the right fifth digit in July 1984 with cast treatment, and a right index finger laceration in February 1985. Post-service records also showed ongoing right-hand complaints. A June 2016 VA exam yielded a negative nexus opinion. However, a September 2023 VA opinion found the condition related to service, stating it was caused by in-service fractures and treatment, with an October 2023 addendum clarifying functional impairment due to pain. The Board found the evidence in relative equipoise and resolved doubt in the Veteran's favor, granting service connection for residuals of multiple fractures and other injuries to the right hand.

Rationale

Service treatment records noted in-service injury and treatment.; Subsequent VA opinion found condition related to service.; Board found evidence in equipoise and resolved doubt in favor of Veteran.

Full Decision Text

Citation Nr: 24012819
Decision Date: 03/27/24	Archive Date: 03/27/24

DOCKET NO. 19-04 217
DATE: March 27, 2024

ORDER

Entitlement to service connection for residuals for multiple fractures and other injuries to right hand is granted.

REMANDED

Entitlement to service connection for a respiratory disability is remanded.

FINDING OF FACT

Resolving all reasonable doubt in favor of the Veteran, the persuasive evidence of record weighs in favor of a finding that the Veteran's residuals for multiple fractures and other injuries to right hand is related to his active-duty service.

CONCLUSION OF LAW

The criteria for entitlement to service connection for residuals for multiple fractures and other injuries to right hand have been met. 38 U.S.C. §§ 1131, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty in the Air Force from May 1982 to April 1985. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO).

In February 2021, the Veteran testified before the undersigned Acting Veterans Law Judge (AVLJ) via a virtual hearing. A transcript of the hearing is of record.

In April 2023, the Board remanded the Veteran's claims for additional development. The Board now finds that there was not substantial compliance with its April 2023 remand directives, as it pertains to the claim for entitlement to service connection for a respiratory disability. Stegall v. West, 11 Vet. App. 268, 271 (1998).

Service Connection

Generally, to prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a).

Certain chronic diseases may be presumed to have been incurred during service if manifested to a compensable degree within one year of separation from active military service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309.

1. Entitlement to service connection for residuals for multiple fractures and other injuries to right hand.

The Veteran asserts that his current residuals for multiple right-hand fractures and other right hand injuries are directly related to his military service.

The Veteran's STRs reveal an August 1983 notation of right hand pain over the distal metacarpal; a July 1984 notation that an injury to the right hand occurred with a sledgehammer, diagnosed as a fracture to the right fifth digit with treatment of a cast, given for four weeks; and a February 1985 treatment for right index finger laceration. Post-service medical treatment records show complaints, treatment, and diagnoses of right-hand pain/conditions.

In June 2016, the Veteran underwent a VA examination, where the examiner diagnosed the Veteran with fracture fifth metacarpal and right index finger right strain status post total shoulder replacement. The examiner opined that the Veteran's current right-hand complaints are less likely than not related to his service and more likely than not related to normal age progression, to include past physical labor jobs such as being a mechanic. 

In September 2023, the Veteran was provided a VA medical opinion, where the examiner opined that the Veteran's right-hand condition was caused by fractures in service, as there is noted treatment for right hand fractures in STRs.  An October 2023 addendum VA medical opinion clarified that the Veteran did indeed have a diagnosed disability, as pain resulted in functional impairment, evidenced by his testimony of pain that results in functional limitations and decreased strength. 

The Board finds that the evidence is in relative equipoise as to whether the Veteran's current right-hand condition, to include pain that results in functional impairment, is related to service. Therefore, resolving all reasonable doubt in favor of the Veteran, the persuasive evidence of record weighs in favor of the Veteran's claim, and service connection for the Veteran's residuals for multiple fractures and other injuries to right hand is warranted; and the claim is granted. See 38 U.S.C. § 5107(b).

REASONS FOR REM
 An October 2023 addendum VA medical opinion clarified that the Veteran did indeed have a diagnosed disability, as pain resulted in functional impairment, evidenced by his testimony of pain that results in functional limitations and decreased strength. 

The Board finds that the evidence is in relative equipoise as to whether the Veteran's current right-hand condition, to include pain that results in functional impairment, is related to service. Therefore, resolving all reasonable doubt in favor of the Veteran, the persuasive evidence of record weighs in favor of the Veteran's claim, and service connection for the Veteran's residuals for multiple fractures and other injuries to right hand is warranted; and the claim is granted. See 38 U.S.C. § 5107(b).

REASONS FOR REMAND

1. Entitlement to service connection for a respiratory disability is remanded.

As noted above, the Board remanded the Veteran's claim for additional development, specifically to obtain adequate VA medical opinions, with direct instructions to address the Veteran's testimony of being diagnosed with asthmatic bronchitis and in-service evidence of respiratory problems, to include a May 1983 pulmonary function test (PFT) that showed evidence of mild flow obstruction. 

In September 2023, the Veteran was provided a VA medical opinion in response to the Board's remand. Upon review, the examiner provided an unfavorable medical nexus opinion as to the Veteran's claimed condition being incurred in or caused by the Veteran's active service, to include a respiratory disability during service.

The Board finds this opinion to be inadequate, as the examiner improperly relied on the lack of in-service medical evidence showing respiratory symptoms as the primary basis for supporting the overall negative conclusion. Also, the examiner failed to properly address the Veteran's testimony of being diagnosed with asthmatic bronchitis and in-service evidence of respiratory problems, to include a May 1983 pulmonary function test (PFT) that showed evidence of mild flow obstruction, as directed by the Board's remand. Instead, the examiner merely noted the Veteran's testimony and in-service PFT, but failed to discuss and reconcile such evidence with the ultimate findings of the report. 

Therefore, the Board finds that an addendum VA medical opinion must be provided that adequately addresses the Veteran's claim.

As such, a remand is necessary to address the matters discussed above, prior to adjudication of the claim and in compliance with Stegall v. West, 11 Vet. App. 268 (1998).

The matters are REMANDED for the following action:

1. Obtain and associate with the claims file any outstanding medical treatment records.

2. Provide the Veteran with an addendum VA medical opinion to ascertain the nature and etiology of his claimed respiratory disability by an examiner who has not previously provided an opinion in this matter. If the examiner deems that another VA examination is needed in order to provide the requested opinion, please schedule one. All necessary tests should be conducted, as deemed appropriate. The claims file should be made available to and be reviewed by the examiner in conjunction with the examination. Following complete review of the record, the examiner must address the following:

Opine whether the Veteran's respiratory disability began during active service, or was otherwise related to active service.

In the requested opinion, the examiner must address the following: (1) Veteran's testimony that he was diagnosed with asthmatic bronchitis; and (2) evidence of respiratory problems during service, to include a May 1983 pulmonary function test (PFT)which showed evidence of mild flow obstruction.

A complete rationale, with citation to appropriate medical principles, is requested.

 

 

Zi-Heng Zhu

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Carter, B.

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.