Citation Nr: 1113941 Decision Date: 04/08/11 Archive Date: 04/15/11 DOCKET NO. 09-09 859 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to service connection for left thumb and index finger disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and a friend ATTORNEY FOR THE BOARD Timothy S. Hoseth, Associate Counsel INTRODUCTION The Veteran had active duty service from December 1967 to December 1971. The matter of entitlement to service connection for left thumb and index finger disability comes before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). A notice of disagreement was received in March 2008, a statement of the case was issued in March 2009, and a substantive appeal was received in March 2009. In May 2010, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of this proceeding is associated with the claims file. At the May 2010 Board hearing, the Veteran and his representative requested that testimony be allowed on two additional issues, entitlement to service connection for hepatitis A and for low back disability. It was agreed that testimony would be allowed with a determination to be made as to appellate status of these issues after a full review of the file. The February 2008 rating decision which denied service connection for the left thumb and index finger disability also denied the hepatitis A and low back claims. After reviewing the Veteran's March 2008 notice of disagreement, the Board is unable to find that such notice of disagreement adequately identified the hepatitis A and low back claims as ones which the Veteran wished to appeal. The clear wording of the notice of disagreement is that he was appealing the left thumb and index finger issue. Although the last sentence did include the word "claims," at no point in the communication did he reference the other issues and the opening sentence clearly indicated that he was appealing only the left thumb and index finger issue. The Veteran did not specifically identify these additional issues. See 38 C.F.R. § 20.201 (2010). In the context of the overall wording of the notice of disagreement, the Veteran did not make it clear that he wished to appeal any issues other than the left thumb and index finger issue. Moreover, even after the statement of the case was issued addressing only the left thumb and index finger issue, the Veteran's substantive appeal only addressed that issue and at no time did he question the other issues. It was not until the May 2010 hearing, over two years after the February 2009 rating decision that the Veteran mentioned the hepatitis A and low back claims. Although the Veteran and his representative may be attempting after the fact to have these additional issues undergo appellate review, the overall evidence is against a finding that they were the subject of a timely notice of disagreement. The Board therefore concludes that these issues are not in appellate status at this time. However, the testimony offered on the hepatitis and low back issues as the Mary 2010 hearing do effectively constitute a request to reopen these claims. This matter is therefore referred to the RO for adjudication. 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 Left Thumb & Index Finger Disability The Board notes that the appellate scheme set forth in 38 U.S.C.A. § 7104(a) contemplates that all evidence will first be reviewed at the agency of original jurisdiction so as not to deprive the claimant of an opportunity to prevail with his claim at that level. See generally Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). According to 38 C.F.R. § 20.1304(c), any pertinent evidence submitted by the appellant or representative which is accepted by the Board under the provisions of this section must be referred to the agency of original jurisdiction for review, unless this procedural right is waived by the appellant or representative. In this case, additional evidence was received by VA in May 2010, including private treatment records and a lay statement. The Veteran's representative specifically requested that this evidence be first reviewed by the agency of original jurisdiction. As the evidence appears to be relevant to the Veteran's claim and is not duplicative of evidence already discussed in the March 2009 statement of the case, the case must be returned to the agency of original jurisdiction for initial review. 38 C.F.R. §§ 19.31, 19.37. In addition, the Board notes that the Veteran has not been afforded a VA medical examination to assess the nature and etiology of his claimed left thumb and index finger disability. In this regard, VA has a duty to assist claimants in the development of facts pertinent to their claims and VA must accomplish additional development of the evidence if the record currently before it is inadequate. 38 U.S.C.A. § 5103A. The Board notes that service medical records document that the Veteran was treated for a left hand injury in September 1970. Specifically, the records document that the Veteran caught his left hand in a brake lever of a towing wench, and the clinician's impression was a contusion of the left thumb and index finger, as well as a possible fracture. Also, during the May 2010 Board hearing, the Veteran testified that he has had problems with his left hand since his discharge from active duty service. Under these circumstances, the Board believes a VA examination is required under McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following actions: 1. The Veteran should be scheduled for an appropriate VA examination to ascertain the nature and etiology of his claimed left thumb and index finger disability. It is imperative that the claims folder be reviewed in conjunction with the examination, specifically including the September 1970 service medical records documenting treatment for a left hand injury. Any medically indicated special tests should be accomplished, and all special tests and clinical findings should be clearly reported. The examiner should clearly report all left hand disabilities found to be present, specifically including any left thumb disability and/or index finger disability. After examining the Veteran and reviewing the claims file, the examiner should offer the following opinion: Is it at least as likely as not (i.e., a 50% or higher degree of probability) that any current left hand disability/disabilities is/are causally related to the Veteran's active duty service or any incident therein, specifically including the September 1970 injury? If so, please clearly identify such current disability/ disabilities. All opinions and conclusions expressed must be supported by a complete rationale in the report. 2. In the interest of avoiding further remand, the AMC/RO should review the VA opinion obtained and ensure that an adequate opinion with rationale has been offered. 3. After completion of the above and any further development deemed necessary by the AMC/RO, the RO should review the expanded record (to specifically include the additional evidence received in May 2010) and readjudicate the issue of entitlement to service connection for left thumb and index finger. If the benefit sought is not granted, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for further appellate review. 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. 2010). _________________________________________________ ALAN S. PEEVY 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).