Citation Nr: 0813554 Decision Date: 04/24/08 Archive Date: 05/01/08 DOCKET NO. 07-02 004 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado THE ISSUE Entitlement to a rating in excess of 10 percent for residuals of injuries to the left fifth (ring) and the right fourth finger with degenerative joint disease. REPRESENTATION Appellant represented by: Colorado Division of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Vavrina, Counsel INTRODUCTION The veteran served on active duty from December 1961 to December 1981. This appeal to the Board of Veterans' Appeals (Board) arises from a May 2005 rating decision in which the RO, inter alia, recharacterized the veteran's residuals of an injury to the left fifth (ring) finger and residual of an injury to the right fourth finger, both separately rated as 0 percent (noncompensable) disabling, as residuals of injuries to the left fifth (ring) finger and the right fourth finger with degenerative joint disease and assigned a joint 10 percent rating under Diagnostic Codes 5010-5230, effective January 26, 2005. In November 2005, the veteran filed a notice of disagreement (NOD) with the assigned rating; and the RO issued a statement of the case (SOC) in November 2006. The following month, the veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals). A supplemental SOC (SSOC), reflecting the continued denial of the claim, was issued in August 2007. Inasmuch as a higher rating for the veteran's bilateral hand disability is assignable, and the veteran is presumed to seek the maximum available benefit; therefore the matter of an increased rating for his bilateral hand disability remains for appellate consideration. See AB v. Brown, 6 Vet. App. 35, 38 (1993). In September 2007, the veteran testified during a hearing before the undersigned Veterans Law Judge at the RO; a transcript of that hearing is of record. For the reasons expressed below, the matter on appeal is being remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant when further action, on his part, is required. REMAND The Board's review of the claims file reveals that additional RO action on the claim on appeal is warranted. During his hearing, the veteran testified that his bilateral hand disability had worsened since he was last examined by VA in May 2005. Hence, an examination to obtain more contemporaneous findings is needed. In this regard, the Board notes that the veteran testified, during his hearing, that he injured his fingers moving furniture at Fort Carson, when his hands got caught up against the wall. He asserts that he sustained injuries to his third, fourth and fifth fingers on his left hand and to his fourth and fifth fingers on his right hand. The veteran indicated that he could not bend his left fifth finger properly nor his right third and fourth fingers, and that the latter two fingers are deformed. The veteran's service medical records show that, in January 1981, that he was treated for droop of extension in the right third and fourth fingers and in the left fifth finger. This record reflects that he was three and one-half months post injury. Since his last VA examination in May 2005, he has developed tingling and weakness, along with diminished ability to grasp had hold things. The veteran was found to have carpal tunnel syndrome (CTS) in his right hand for which he had a surgical release done by a private physician in September 2005. The veteran claims that his CTS is a residual of his original in-service injury. The Board finds that this evidence raises questions about the nature and extent of the service-connected disability. As such, a medical opinion addressing whether the veteran's right CTS represents a residual, or progression, of bilateral hand disability for which service connection , and, if not, whether it is possible to separate the nonservice-connected CTS symptoms from those of the veteran's service-connected bilateral hand disability, is also needed to resolve the claim. The Board emphasizes that where it is not possible to distinguish the effects of a nonservice-connected condition from those of a service-connected condition, the reasonable doubt doctrine dictates that all symptoms be attributed to the veteran's service-connected disability. See Mittleider v. West, 11 Vet. App. 181 (1998). If the examiner determines either that the veteran's right CTS represents a progression of, or is associated with, the service-connected bilateral hand disability, or that the symptoms/effects of the veteran's right CTS cannot be separated from the service- connected disability, then the examiner should render findings responsive to the criteria for rating CTS, under 38 C.F.R. § 4.124a, Diagnostic Code 8515 (2007), pertaining to evaluation of the median nerve. Hence, the RO should arrange for the veteran to undergo VA neurological and orthopedic examinations, by appropriate physicians, at a VA medical facility. The veteran is hereby notified that failure to report to any such scheduled examination(s), without good cause, shall result in a denial of the claim for increase. See 38 C.F.R. § 3.655(b) (2007). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. If the veteran fails to report to any scheduled examination(s), the RO should obtain and associate with the claims file (a) copy(ies) of the notice(s) of the examination(s) sent to him by the pertinent VA medical facility. Prior to arranging for the veteran to undergo VA examination, the RO should obtain and associate with the claims file all outstanding VA medical records. The claims file currently includes VA treatment records from the Denver VA Medical Center (VAMC) and the Colorado Springs VA outpatient clinic, dated from January 9, 2004 to January 12, 2005. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Hence, the RO must obtain all outstanding pertinent VA medical records since January 12, 2005, following the current procedures prescribed in 38 C.F.R. § 3.159 (2007) as regards requests for records from Federal facilities. The Board also points out that the evidence of record shows that the veteran has been treated by several private healthcare providers during the period in question. When VA is put on notice of the existence of private medical records, VA must attempt to obtain those records before proceeding with the appeal. See Lind v. Principi, 3 Vet. App. 493, 494 (1992); Murincsak v. Derwinski, 2 Vet. App. 363 (1992). Hence, in its notice letter, the RO should request that the veteran provide authorization to enable it to obtain medical records from any private healthcare provider identified by the veteran, which are not already in the record. To ensure that all due process requirements are met, the RO should also give the veteran another opportunity to present additional information and/or evidence pertinent to the claims on appeal. In this regard, the Board points out that the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2007)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA have been codified, as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2007). Various court cases have defined VA's duty to notify claimants. As held in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), in rating cases, a claimant must be provided with information pertaining to assignment of disability ratings (to include the rating criteria for all higher ratings for a disability), as well as information regarding the effective date that may be assigned. The RO provided the general notice required by Dingess/Hartman in a letter dated in March 2006, prior to the last readjudication of his claim in an August 2007 SSOC. In February 2005 and March 2006, the RO sent the veteran notice letters which addressed his claims for an increased rating for his left and right hand disabilities. However, the collective notices of the RO in the record fail to meet the specific notice requirements applicable to claims for increased ratings discussed by the United States Court of Appeals for Veterans Claims (Court) in a recent decision, Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). In Vazquez-Flores, the Court found that, at a minimum, adequate VCAA notice requires that VA notify the claimant that, to substantiate an increased rating claim: (1) the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life; (2) if the diagnostic code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect of that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant; (3) the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant diagnostic codes; and (4) the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask VA to obtain) that are relevant to establishing entitlement to increased compensation. Regarding notice as required by Vazquez-Flores, the Board notes that the February 2005 and the March 2006 VCAA letters collectively provided the notice required in (1), (3) and (4) above in relation to the veteran's claim for a higher rating for his bilateral hand disability. However, the RO has not given the general notice required by (2) above. Accordingly, due process requires that notice to the veteran that meets the requirements of Vazquez-Flores-particularly that specified in (2) above-must be provided. As action by the RO is needed to fulfill the notification provisions of the VCAA (see, e.g., Disabled American Veterans v. Secretary of Veterans Affairs, 327 F. 3d 1339 (Fed. Cir. 2003) and Pelegrini v. Principi, 18 Vet. App. 112 (2004)), a remand of the matter on appeal to the RO is warranted. Hence, on remand, the RO should, through VCAA-compliant notice, give the veteran another opportunity to provide information and/or evidence pertinent to the claims on appeal, explaining that she has a full one-year period for response. See 38 U.S.C.A. § 5103 (b)(1)(West 2002); but see also 38 U.S.C.A. § 5103(b)(3)) (West Supp. 2007) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). The RO should also invite the appellant to submit all pertinent evidence in her possession, and ensure that its notice to the veteran meets the notice requirements of Vasquez Flores, as outlined above. After providing the appropriate notice, the RO should obtain any additional evidence for which the veteran provides sufficient information and, if necessary, authorization, following the procedures prescribed in 38 C.F.R. § 3.159 (2007). The actions identified herein are consistent with the duties to notify and assist imposed by the VCAA. However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full VCAA compliance. Hence, in addition to the actions requested above, the RO should also undertake any other development or notification action deemed warranted by the VCAA prior to adjudicating the claim on appeal. Accordingly, this matter is hereby REMANDED to the RO, via the AMC, for the following action: 1. The RO should obtain from the Denver VAMC and the Colorado Springs VA outpatient clinic all outstanding pertinent records of evaluation and/or treatment of the veteran, from January 12, 2005 to the present. The RO must follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. The RO should send to the veteran and his representative a letter requesting that the veteran provide sufficient information, and if necessary, authorization to enable it to obtain any additional evidence pertinent to the claim on appeal that is not currently of record. The VA specifically should request that the veteran provide authorization to enable VA to obtain records from Drs. R. M. Stafford and D. A. Labosky. The RO should also invite the veteran to submit all pertinent evidence in his possession, and explain the type of evidence that is his ultimate responsibility to submit. The RO should ensure that its letter meets the requirements of Vazquez/Flores, cited to above (as appropriate). In particular, the RO must provide at least general notice of all possible diagnostic codes under which the veteran's bilateral hand disability may be rated under 38 C.F.R. §§ 4.71a and 4.124a. The notice should also explain that, if the diagnostic code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect of that worsening has on the claimant's employment and daily life (such as a specific measurement or test result). Such notice must also provide examples of the types of medical and lay evidence that the veteran may submit (or ask VA to obtain) that are relevant to establishing entitlement to increased compensation. The RO's letter should clearly explain to the veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 3. If the veteran responds, the RO should assist him in obtaining any additional evidence identified by following the current procedures set forth in 38 C.F.R. § 3.159. All records and responses received should be associated with the claims file. If any records sought are not obtained, the RO should notify the veteran and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. After all available records and/or responses from each contacted entity are associated with the claims file, the RO should arrange for the veteran to undergo VA neurological and orthopedic examinations, by physicians, at an appropriate VA medical facility. The neurological examination should be conducted first, and that examination report made available to the VA orthopedic examiner in conjunction with his/her examination of the veteran. The entire claims file must be made available to each physician designated to examine the veteran, and each examination report should include discussion of the veteran's documented medical history and assertions. All indicated tests and studies (to include X-rays) should be accomplished, and all clinical findings should be reported in detail and correlated to a specific diagnosis. Each examiner should set forth all examination findings, together with the complete rationale for the comments and opinions expressed, in a printed (typewritten) report. The neurological examiner should identify the existence, and frequency or extent, as appropriate, of all neurological symptoms associated with the veteran's bilateral hand disability due to an in- service injury. The examiner should also offer an opinion as to whether the veteran has any separately ratable neurological residual, such as carpal tunnel syndrome (CTS) (in addition to orthopedic residuals) as a manifestation of the service-connected injuries to the veteran's left and right hand. If so, considering all clinical findings, the examiner should provide an assessment as to whether any impairment of the right or left median or ulnar nerve is best characterized as resulting in mild, moderate, or severe incomplete paralysis; or complete paralysis. The orthopedic examiner should conduct range of motion testing of both hands and the individual digits of each hand (expressed in degrees of extension) and any gap (expressed in inches or centimeters) between the fingertip of the right fourth finger and the left ring finger and the proximal transverse crease of the palm, with each finger flexed to the extent possible. In particular, the examiner should render specific findings as to whether the veteran has "griffin claw" deformity, due to flexor contraction of the ring and little fingers, and/or very marked atrophy in dorsal interspace and thenar and hypothenar eminences; whether there is loss of extension of right fourth finger or left ring finger; whether the veteran cannot spread the fingers (or reverse); and whether flexion of the wrist is weakened.. The examiner should also provide findings as to whether there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination associated with the veteran's service- connected fingers. If pain on motion is observed, the examiner should indicate the point at which pain begins. In addition, the physician should indicate whether, and to what extent, the veteran experiences likely functional loss due to pain and/or any of the other symptoms noted above during flare-ups and/or with repeated use of the right fourth finger and the left ring finger; to the extent possible, the examiner should express any such additional functional loss in terms of additional degrees of limited motion of the affected finger. The examiner should also indicate whether the disability of the right fourth finger or the left ring finger is comparable to amputation of that finger, as well as whether there is any ankylosis of the veteran's service-connected fingers, and if so, whether such is favorable or unfavorable, and the extent of such ankylosis. Considering all neurological and orthopedic examination findings, the physician should then offer an opinion as to whether the veteran's right CTS represents a residual, or progression of, the veteran's in-service injury to the right hand for which service connection has been granted. If not, the examiner should indicate whether it is possible to separate the veteran's CTS symptoms from those of the veteran's service-connected hand disability. 5. If the veteran fails to report to any scheduled examination(s), the RO must obtain and associate with the claims file (a) copy(ies) of any notice(s) of the date and time of the examination(s) sent to the veteran by the pertinent VA medical facility. 6. To help avoid future remand, the RO must ensure that all requested action has been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 7. After completing the requested action, and any additional notification and development deemed warranted, the RO should readjudicate the higher rating claim. If the veteran fails, without good cause, to report to any scheduled VA examination(s), the RO should apply the provisions of 38 C.F.R. § 3.655(b), as appropriate. Otherwise, the RO should adjudicate the claim on appeal in light of all pertinent evidence and legal authority. 9. If the benefit sought on appeal remains denied, the RO must furnish to the veteran and his representative an appropriate SSOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). 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). _________________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of the appeal. 38 C.F.R. § 20.1100(b) (2007).