Citation Nr: 1303565 Decision Date: 02/01/13 Archive Date: 02/08/13 DOCKET NO. 05-12 085 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for a bilateral wrist disorder. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. Purdum, Counsel INTRODUCTION The Veteran has active service from March 1975 to April 1979. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan, which denied service connection for a bilateral wrist disorder and denied a TDIU. The Board, in a December 2010 decision, denied service connection for a bilateral wrist disorder and denied a TDIU. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In a February 2012 Order, the Court granted a February 2012 Joint Motion for Remand (JMR) of the claims, and vacated the Board's decision. These matters were remanded to the Board for readjudication in accordance with the JMR. 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 Additional development is needed prior to further disposition of the claims. As a preliminary matter, the Board observes that there appear to be outstanding VA and private treatment records, and possibly records maintained by the Social Security Administration (SSA). Because VA is on notice that there are additional records that may be applicable to the Veteran's claims and because these records may be of use in deciding the claims, these records are relevant and should be obtained. Bell v. Derwinski, 2 Vet. App. 611 (1992). While numerous reports of VA examinations are of record, the Veteran's VA treatment records currently associated with the claims file, including consideration of Virtual VA, are only dated to July 2002. There is no indication that the Veteran has ceased VA treatment. Further, of record is a July 2005 approved application for the advancement of funds from the VA vocational rehabilitation program. On remand, the RO/AMC should attempt to obtain the Veteran's updated VA treatment records, and clarify if the Veteran participated in the VA vocational rehabilitation program, and if so, attempt to obtain any relevant records. Also, the Board notes that the Veteran submitted a VA Form 21-4142, Authorization and Consent to Release Information to the VA, in February 2004 in favor of Dr. S. The RO requested such records in April 2004 and informed the Veteran that there was response from Dr. S. in the August 2004 rating decision on appeal. The Veteran also filed a VA Form 21-4142 in February 2007 in favor of Dr. M. It does not appear that the RO requested records from Dr. M. On remand, the RO/AMC should provide the Veteran new VA Forms 21-4142, as the authorizations of record are now outdated, for Drs. S. and M. and attempt to obtain any newly-authorized outstanding private treatment records. Finally, it is unclear to the Board if the Veteran has applied for disability benefits from SSA. In numerous statements made during the appellate period, he reported that he had not worked since 2005. On remand, the RO/AMC should contact the Veteran and inquire as to whether he has applied for disability benefits from the SSA, and if so, attempt to obtain any relevant records. As to the Veteran's claim of entitlement to service connection for a bilateral wrist disorder, the JMR found that the Board had not properly considered the Veteran's lay statements as to the relationship between service and his bilateral wrist disorder. The parties to the JMR then questioned whether the March 2009 VA examiner properly considered the Veteran's lay statements. Review of the March 2009 VA examination report indicates that the examiner opined that the Veteran's current bilateral wrist disorder, diagnosed at that time as bilateral degenerative joint disease, was less likely than not related to service, specifically, to the in-service wrist complaints and treatment. He reasoned that the Veteran's service treatment records were silent for evidence of a fracture or a chronic wrist disability. Thus, the examiner did not properly consider the Veteran's lay statements and the opinion is inadequate for the purpose of adjudicating service connection. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that once VA undertakes the effort to provide an examination for a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided). On remand, the RO/AMC should afford the Veteran an adequate VA examination to determine the etiology of any current bilateral wrist disorder. As to the Veteran's claim of entitlement to a TDIU, the JMR found that the Veteran was not afforded a comprehensive VA examination to determine the effects of the Veteran's service-connected disabilities, singly and jointly, on his ability to secure or follow a substantially gainful occupation. While the Veteran's service-connected disabilities were evaluated on VA examinations in March 2009, no examiner rendered an opinion as to the issue of TDIU, instead, each examiner briefly commented only upon the effect each disability had on employment. On remand, the RO/AMC should afford the Veteran a comprehensive VA examination. See 38 U.S.C.A. § 5103A (West 2002); see also Colayong v. West, 12 Vet. App. 524, 538-40 (1999). Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and provide him VA Forms 21-4142, Authorization and Consent to Release Information to the VA. Inform him that records from Drs. S. and M. were not obtained subsequent to prior submitted authorizations. Advise the Veteran that he may submit such records if he so chooses. Obtain any identified and authorized private treatment records. If no such records are available or do not exist or the search for them yields negative results and it is determined that further attempts to obtain these records would be futile, then this should be clearly documented in the claims file and the Veteran appropriately notified. 2. Contact the Veteran and request that he report as to whether he has applied for disability benefits from SSA. If he responds in the affirmative, obtain and associate with the claims file all relevant records related to the Veteran's SSA disability benefits claim, including any treatment records upon which SSA based its decision. If no such records are available or do not exist or the search for them yields negative results and it is determined that further attempts to obtain these records would be futile, then this should be clearly documented in the claims file and the Veteran appropriately notified. 3. Obtain and associate with the claims file the Veteran's treatment records maintained by the VA Medical Center (VAMC) in Detroit, Michigan, dated from July 2002 to the present, as well as his VA vocational rehabilitation folder, if any. If no such records are available or do not exist or the search for them yields negative results and it is determined that further attempts to obtain these records would be futile, then this should be clearly documented in the claims file and the Veteran appropriately notified. 4. After the above-described development has been completed, schedule the Veteran for a VA examination to determine the etiology of his bilateral wrist disorder. The examiner must diagnose any current bilateral wrist disorder and must opine as to whether it is at least as likely as not (at least a 50 percent probability) that such was incurred in service, or is otherwise related to service, or whether degenerative joint disease of the bilateral wrists was manifest to a compensable degree within one year of separation from service, by April 1980. The examiner must specifically consider the Veteran's in-service bilateral wrist complaints, including: (1) his April 1975 swollen fourth digit of the left hand subsequent to doing push-ups; (2) his March 1976 complaint of right-hand pain; (3) his March 1977 cut on the left middle digit; and (4) his February 1978 hyperextension and diagnosed bilateral wrist sprains subsequent to a fall. The examiner must also consider the Veteran's statements regarding the February 1978 in-service bilateral wrist injury and his statements that he had off and on bilateral hand pain over the years. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (holding that an examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury but relied on the service treatment records to provide a negative opinion). 5. After the above-described development has been completed and after the RO/AMC has adjudicated the issue of entitlement to service connection for a bilateral wrist disorder, schedule the Veteran for a VA examination to ascertain the impact of his service-connected disabilities on his unemployability. The examiner should be notified that the Veteran is currently service-connected for the following disabilities: (1) depression, rated as 50 percent disabling; (2) tinnitus, rated as 10 percent disabling; (3) status-post meniscectomy with degenerative arthritis, left knee, rated as 10 percent disabling; (4) medial collateral ligament laxity, left knee, rated as 10 percent disabling; (5) chronic rotator cuff tendonitis, left shoulder, rated as 10 percent disabling; (6) ligament calcification, left ankle, rated as 10 percent disabling; (7) residuals, chronic right ankle strain, rated as 10 percent disabling; (8) hypertension, rated as 10 percent disabling; (9) bilateral hearing loss, rated as noncompensably disabling; and possibly, a bilateral wrist disorder. The examiner must evaluate and discuss the effect of all of the Veteran's service-connected disabilities, both singly and jointly, on his employability. The examiner should opine as to whether the Veteran's service-connected disabilities, without consideration of his age or non-service-connected disabilities, render him unable to secure or follow a substantially gainful occupation. To this end, the examiner must give some indication as to whether any employment in which the Veteran may engage is only possible with special consideration or accommodation (i.e., just marginal employment versus substantially gainful employment). As to each VA examination, the claims file, to include a copy of this Remand, should be made available to the examiners for review in conjunction with the examinations, and the examiners should note such review. A complete rationale should be provided for all opinions given. The opinions should be based on examination findings, historical records, and medical principles. The examiners should fully articulate a sound reasoning for all conclusions made. The claims file must be properly documented regarding any notifications to the Veteran as to any scheduled examination. 6. Then, after ensuring any other necessary development has been completed; readjudicate the Veteran's claims, considering any additional evidence added to the record. If any action remains adverse to the Veteran, provide the Veteran and his representative with a Supplemental Statement of the Case and allow the Veteran an appropriate opportunity to respond thereto. Thereafter, return the case to the Board. The purpose of the examination requested in this remand is to obtain information or evidence (or both) which may be dispositive of the appeal. Therefore, the Veteran is hereby placed on notice that pursuant to 38 C.F.R. § 3.655 (2012) failure to cooperate by not attending the requested VA examination may result in an adverse determination. See Connolly v. Derwinski, 1 Vet. App. 566, 569 (1991). 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). (Continued on the next page) These claims 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. 2012). _________________________________________________ K. PARAKKAL 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) (2012).