Citation Nr: 0809875 Decision Date: 03/25/08 Archive Date: 04/09/08 DOCKET NO. 99-20 404 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an initial compensable disability rating for service-connected residuals of fracture of the second and third metacarpals of the right hand. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. J. Turnipseed, Associate Counsel INTRODUCTION The veteran had active service from June 1975 to August 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 1998 rating decision of the above Department of Veterans Affairs (VA) Regional Office (RO) which, in pertinent part, granted service connection for status post fracture of the second and third metacarpals of the right hand and assigned a noncompensable (zero percent) disability rating, effective June 12, 1997. This case was previously before the Board in August 2006, at which time entitlement to an increased rating for service- connected residuals of right hand disability was denied. That decision was appealed to the United States Court of Appeals for Veterans Claims (CAVC). The record contains a Joint Motion for Remand, dated in October 2007, wherein the veteran's attorneys and the VA General Counsel agreed to a remand of the veteran's claim. In October 2007, a CAVC order was issued, vacating the Board's decision as to this issue and remanding the matter, for reasons which will be further explained herein. The Board notes the August 2006 Board decision also addressed the veteran's claim for an increased rating for service- connected skin disability of the lower extremities. However, the October 2007 Joint Motion for Remand notes that the veteran had abandoned his appeal as to that benefit. Therefore, that issue is not currently before the Board for appellate consideration. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will provide notification when further action is required on the part of the veteran. REMAND Upon consideration of the matters addressed in the October 2007 Joint Motion for Remand, additional development of the veteran's claim is needed, including further VA examination. The October 2007 Joint Motion noted that the Board might have provided its own medical opinion with respect to whether the veteran has painful motion associated with his service- connected disability. The Joint Motion also noted that, although the evidence shows the veteran had a comminuted fracture of the second and third metacarpals, the Board did not evaluate the veteran's claim under 38 C.F.R. § 4.56, which provides guidance on how to evaluate open comminuted fractures with muscle or tendon damage. In this regard, the Board notes the service medical records show the veteran had a comminuated fracture of the second and third metacarpals, and a May 2002 private medical record notes the veteran incurred an open fracture of the second and third metacarpals of the right hand. See May 2002 private medical record from Dr. J.W.B. The evidence also suggests the veteran may have muscle and tendon damage associated with his service-connected right hand disability. See private medical records from Dr. J.W.B. dated April 2006 and May 2002. However, the evidentiary record also contains medical evidence which states that the problems the veteran currently suffers in his right hand are not due to his service- connected residual disability. The physicians who conducted the April 2005 and June 2006 VA examinations noted the veteran had pain and limitation of motion on objective evaluation, but determined that the veteran's symptoms were not related to his residual fracture disability as his symptoms affected his entire hand as opposed to only the metacarpal bones themselves. The private medical evidence of record does not make this distinction. Thus, a VA examination is needed to clarify whether the veteran currently has any residual disability associated with his service-connected fracture of the second and third metacarpal. On remand, the examiner will be requested to determine if the veteran has any limitation of motion, muscle and/or tendon damage, and any other functional limitation or impairment associated with the affected fingers. During the pendency of this appeal, the CAVC issued decisions which provided additional notice requirements for increased ratings claims under the VCAA. See Dingess v. Nicholson, 19 Vet. App. 473 (2006); Vasquez-Flores v. Peake, No. 05-0355 (U.S. Vet. App. Jan. 30, 2008). The RO will have an opportunity to effectuate the new notice requirements on remand. For the foregoing reasons, the Board concludes that this case must be remanded to the RO in accordance with due process concerns, and in order to undertake additional evidentiary development, as indicated in the CAVC remand. Accordingly, the case is REMANDED for the following action: 1. The veteran should be afforded a VA examination to determine whether he currently has any residual disability associated with his service-connected fractures of the second and third metacarpals of the right hand. All indicated tests and studies should be conducted, and all findings described in detail. The claims file must be made available to the examiner for review in conjunction with the examination. a. The examiner is requested to conduct range-of-motion testing of the affected fingers. Range of motion should be described by a statement as to the size of the gap, in centimeters, between the fingertips and the proximal transverse crease of the palm. b. The examiner is also requested to determine whether there are objective clinical indications of pain/painful motion, weakened movement, premature/excess fatigability, or incoordination and, if feasible, these determinations should be expressed in terms of the degree of additional range of motion loss due to such factors. This includes instances when these symptoms "flare-up" or when the affected fingers are used repeatedly over a period of time. If feasible, this determination should be made in terms of the degree of additional range of motion loss due to these factors. c. With regard to the extent of any muscle or tendon injury related to the veteran's service-connected residual right hand disability, the examiner should be requested to comment on the present muscle injuries associated with this disability, and to specifically identify each Muscle Group affected. The examiner should then render an assessment, for each Muscle Group involved, as to whether the injury is considered slight, moderate, moderately severe, or severe, as defined in VA rating criteria. 2. The issue on appeal should then be readjudicated. If the benefit sought on appeal is not granted to the appellant's satisfaction, the veteran and his representative should be provided with a supplemental statement of the case and afforded the appropriate opportunity to respond thereto. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise informed. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ________________________________ ANDREW J. MULLEN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a final decision of the Board of Veterans' Appeals is appealable to the U.S. Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a final decision of the Board on the merits of the appeal. 38 C.F.R. § 20.1100(b) (2007).