Citation Nr: 1110510 Decision Date: 03/16/11 Archive Date: 03/30/11 DOCKET NO. 05-09 105 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to a disability evaluation in excess of 10 percent for service-connected scar on right middle finger. REPRESENTATION Appellant represented by: Daniel G. Krasnegor, Attorney at Law ATTORNEY FOR THE BOARD T. Y. Hawkins, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1982 to October 2002. This matter comes to the Board of Veterans' Appeals ("Board") from a January 2004 rating decision issued by the Department of Veterans Affairs ("VA") Regional Office ("RO") in Nashville, Tennessee. Jurisdiction is currently with the Columbia, South Carolina, RO. The Board has previously considered this appeal. In February 2009, the Board denied the appellant's claim. The Veteran subsequently appealed the Board's decision to the United States Court of Appeals for Veterans Claims (the "Court"), arguing that the April 2005 VA examination was inadequate for rating purposes. In July 2010, while the case was pending before the Court, the VA Office of General Counsel and the appellant's attorney (hereinafter known as "the parties") filed a Joint Motion for Remand ("Joint Motion"), requesting that the Court vacate the Board's February 2009 decision, and that it remand the case for further development and readjudication. In July 2010, the Court granted the parties' Joint Motion, vacated the Board's February 2009 decision, and remanded the case to the Board for compliance with the directives that were specified by the Court. The issue of entitlement to service connection for arthritis of the right middle finger, to include as secondary to service-connected scar on right middle finger, has been raised by the record (see Veteran's letter, June 2009), but has not been adjudicated by the Agency of Original Jurisdiction ("AOJ"). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required on his part. REMAND In the aforementioned July 2010 Joint Motion, the parties agreed that the Board erred in relying upon the April 2005 VA examination that did not adequately address the additional functional impact to the Veteran due to pain from the service-connected scar on his right middle finger. See 38 C.F.R. § 4.10 (VA examiner must evaluate functional impairment on the basis of lack of usefulness and the effects of the disabilities upon the veteran's ordinary activity). The parties thus directed VA to afford the Veteran an adequate medical examination that would require the VA examiner to quantify the level of impairment as required under 38 C.F.R. § 4.10 and DeLuca v. Brown, 8 Vet. App. 202, 206 (1995) (holding that additional limitation of motion during flare-ups of the condition or upon repetitive motion should, if feasible, be portrayed in terms of the degree of additional limitation). Accordingly, the Board finds that a remand is necessary in order to afford the Veteran another examination that takes into account the Court's holding in DeLuca. See also Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (VA's duty to assist includes the duty to provide an adequate examination when such an examination is indicated); Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA provides an examination, it must be adequate or VA must notify the claimant why one will not or cannot be provided). In addition, it appears that the most recent VA treatment reports of record pertaining to the Veteran's right middle finger are dated August 2004. Where VA has constructive and actual knowledge of the availability of pertinent reports in the possession of the VA, an attempt to obtain those reports must be made. See Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that documents which were not actually before the adjudicators but had been generated by VA employees or submitted to VA by claimant were, "in contemplation of law, before the Secretary and the Board and should be included in the record"). Therefore, the RO should ensure that up-to-date VA treatment reports pertaining to the Veteran's right middle finger are obtained and associated with the claims folder. The Board also observes that the most recent private treatment reports of record (from the Memphis Branch Medical Center in Tennessee) are dated May 2004. Accordingly, an attempt should be made to obtain up-to-date private treatment records from this provider and any other private providers identified by the Veteran as having treated him for his scar on right middle finger. Finally, the Board notes that, although the March 2005 VA examination request did not specifically instruct the VA examiner to review the Veteran's claims folder, because the Board is requesting that the RO obtain updated treatment reports, the examiner must be instructed that a review of the claims folder is required. Accordingly, the case is REMANDED for the following action: 1. Obtain all available VA treatment records since August 2004 from the Memphis VA Medical Center ("VAMC"), the Columbia, South Carolina, VAMC, and any other VAMC that treated the Veteran for his service-connected scar on the right middle finger, and associate with the claims folder. Any negative reply should be included in the claims folder. 2. Send the Veteran a release form(s) and ask him to identify any private medical providers that have treated him for his service-connected right middle finger since May 2004. Any records obtained should be included in the claims folder. Any negative reply should be included in the claims folder. 3. Thereafter, schedule the Veteran for an appropriate VA examination to determine the current severity of his service-connected scar on right middle finger. The claims folder must be provided to the examiner in conjunction with the examination and the examiner must note that pertinent documents in the claims folder were reviewed. Any tests deemed necessary should be conducted, and all clinical findings should be reported in detail. The examiner should elicit from the Veteran a complete history of his symptoms and treatment related to the condition and note that, in addition to the medical evidence, the Veteran's lay history has been considered. The examiner is asked to specifically describe all manifestations of the right middle finger scar, to include any limitation of motion of the digit and whether any scar is painful on examination. The examiner should also specify the approximate area (in inches or centimeters) covered by the Veteran's scar. The examiner should specifically set forth all symptoms resulting from the scar only, and indicate whether any limitation of motion or function is due solely to the scar (as opposed to any separately-diagnosed disorder of the middle finger). The examiner must specifically discuss whether and to what extent the Veteran's right middle finger scar affects and/or restricts his occupational activities and routine daily activities of living. The examiner should also conduct range of motion studies on the digit and identify any objective evidence of pain. The examination report must specifically state the degree of disability present, to include the extent of any incoordination, weakened movement and excess fatigability on repetitive use. To the extent possible, the functional impairment due to any incoordination, weakened movement or excess fatigability on repetitive use should be assessed in terms of additional degrees of limitation of motion. Any and all opinions must be accompanied by a complete rationale. 4. The Veteran must be advised of the importance of reporting to the scheduled VA examination and of the possible adverse consequences, to include the denial of his claim, of failing to so report. See 38 C.F.R. § 3.655 (2010). 5. Thereafter, the issue on appeal should be readjudicated. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his attorney/representative should be provided with a Supplement Statement of the Case and afforded the opportunity to respond thereto. The matter should then be returned to the Board, if in order, for further appellate process. 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. 2010). _________________________________________________ L. M. BARNARD Acting 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) (2010).