Citation Nr: 1012190 Decision Date: 04/01/10 Archive Date: 04/14/10 DOCKET NO. 07-28 814 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to a disability rating greater than 10 percent for service-connected amputation, distal phalanx, left index finger (non-dominant). 2. Entitlement to a disability rating greater than 10 percent for service-connected scar, status post amputation, distal phalanx, left index finger (non-dominant). 3. Entitlement to a total disability rating based on individual unemployability (TDIU). WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD April Maddox, Counsel INTRODUCTION The Veteran had active service from April 1968 to October 1969. This matter comes before the Board of Veterans' Appeals (Board or BVA) on appeal from a November 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. The Veteran testified before the undersigned Veterans Law Judge at a Travel Board hearing in January 2010. A transcript of this proceeding is associated with the claims file. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND Service treatment records show that the Veteran sustained a partial traumatic amputation of his distal left index finger during a conveyor belt accident and subsequently underwent complete amputation of the distal portion of the left index finger in October 1968. By rating decision dated in March 1970, the RO granted service connection for amputation, distal phalanx, left index finger and assigned a 10 percent disability rating under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5153 which pertains to amputation of the index finger. Post-service medical records show that the Veteran sustained a fracture to the proximal phalanx of the left index finger in April 2001 during a work accident. He underwent open reduction and internal fixation in May 2001 and subsequently underwent surgery resulting in removal of the fixation devices and extensor tendysis in June 2001. Around the time of this second injury to the left index finger, the Veteran submitted a claim for an increased rating for his service-connected left index finger disorder. He was afforded a VA examination with regard to this claim in February 2002. This examiner opined that the Veteran had some disability attributable to the original amputation of the left index finger during military service but also wrote that the condition of the Veteran's left hand and index finger had been greatly compromised by the recent injury. By rating decision dated in June 2002, the RO continued the 10 percent rating assigned for amputation, distal phalanx, left index finger and granted a separate 10 percent evaluation for scar, status post amputation, distal phalanx, left index finger under 38 C.F.R. § 4.118, Diagnostic Code (DC) 5153-8704 which pertains to superficial and painful scars other than the head, face, or neck. The Veteran submitted another claim for an increased rating in May 2006 and was afforded a VA examination with regard to this claim in November 2006. This examination report did not address any neurological concerns. By rating decision dated in November 2006 the RO continued the 10 percent disability ratings assigned for the Veteran's left index finger disorders. The Veteran subsequently perfected an appeal with regard to this decision. During the course of the appeal the Veteran submitted private treatment reports dated from September 2003 to March 2004 from Dr. S.H.G. which show complaints of numbness in the left ring and little fingers and indicate that nerve conduction studies revealed evidence of injury to the left ulnar sensory and motor fibers, including the dorsal cutaneous branch. As the November 2006 VA examination report did not address neurological impairment associated with the service-connected left index finger disorders and recently submitted private medical evidence shows evidence of neurological impairment of the left little finger, another examination is required to determine whether the Veteran's service-connected left index finger disorder is productive of neurological impairment. An opinion is also requested to determine whether it is more likely than not that any neurological impairment of the left index finger is due to the October 1968 in-service amputation or whether it is due to the April 2001 post-service fracture of the proximal phalanx of the left index finger. Also, during the course of the appeal the Veteran submitted a signed authorization form allowing VA to obtain treatment records from University of California San Diego Medical Center dated from January 2004 to the present. VA requested these records initially by correspondence dated in November 2007 and by follow-up correspondence in December 2007 but no response has, as of yet, been received. Another attempt to obtain these records should be made on remand. Finally, during the January 2010 hearing the Veteran indicated that he last worked as a truck driver in September 2009. He indicated that he had to stop working because of his left index finger disorder. A claim for TDIU is not a freestanding claim. Rather, it is a claim for an increased rating (a total rating based on individual unemployability) for the underlying disability(ies). Such a claim may be expressly raised or it may be "reasonably raised by the record," and the claim may be filed as a component of an initial claim or as a claim for an increased rating for a service-connected disability. If a veteran asserts entitlement to a TDIU during the appeal of the initial evaluation assigned, the issue is part of the underlying claim for an increased initial evaluation. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board finds that the Veteran has raised the issue of entitlement to a TDIU as part of his claim for a higher rating for the service-connected left index finger disorders. Although they are listed separately on the title page, the issues are not independent and must be adjudicated as one claim. See Rice, 22 Vet. App. at 455. In exceptional cases where schedular evaluations are found to be inadequate, the RO may refer a claim to the Under Secretary for Benefits or the Director, Compensation and Pension Service, for consideration of an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. 38 C.F.R. § 3.321(b) (1). On remand, the RO must also consider whether referral for an extraschedular evaluation is necessary. Barringer v. Peake, 22 Vet. App. 242 (2008). Appropriate notice for TDIU should be provided on remand. When the AMC/RO concludes development, the initial rating, including schedular, extraschedular ratings, and TDIU, including schedular and extraschedular consideration, must be readjudicated as one claim. Accordingly, the case is REMANDED for the following action: 1. Make another attempt to obtain private treatment records from the University of California San Diego Medical Center dated from January 2004 to the present. Once obtained, all documents must be permanently associated with the claims folder. If these records are unobtainable, a negative reply must be noted in writing and associated with the claims folder. 2. Provide the Veteran appropriate notice with respect to the TDIU claim. 3. After allowing an appropriate time for response to the notice provided above, schedule the Veteran for a VA examination to identify the current level of impairment resulting from his service-connected left index finger disorders, to include any neurological impairment. The claims folder must be made available to the examiner for review in connection with the examination. All necessary tests should be conducted. Following the examination, the examiner must identify all residuals of the service-connected amputation, distal phalanx, left index finger and answer the following questions: i) whether it is at least as likely as not than not (50 percent or more probability) that any neurological impairment of the left index finger is due to the October 1968 in-service amputation or whether it is due to the April 2001 post-service fracture of the proximal phalanx of the left index finger. ii) describe the effects, if any, of the service-connected left index finger disorders on the Veteran's ability to work and provide an opinion as to whether it is at least as likely as not that the Veteran is unable to secure and follow a substantially gainful occupation by reason of his service- connected left index finger disorders. A complete rationale for all opinions should be expressed. 4. After consideration of the foregoing, readjudicate the case. If any benefit sought on appeal remains denied, the Veteran should be furnished a supplemental statement of the case and afforded a reasonable opportunity to respond. The appellant has the right to submit additional evidence and argument on the 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. 2009). _________________________________________________ M. E. LARKIN 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 your appeal. 38 C.F.R. § 20.1100(b) (2009).