Citation Nr: 1307604 Decision Date: 03/07/13 Archive Date: 03/11/13 DOCKET NO. 10-15 280 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to an initial compensable disability rating prior to August 8, 2006, for service-connected residuals, injury, left ring finger with degenerative joint disease of the second and third interphalangeal joints (hereinafter, left ring finger disability), and a disability rating in excess of 10 percent thereafter. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Purdum, Counsel INTRODUCTION The Veteran served on active duty from June 1975 to June 1984. This matter comes before the Board of Veterans' Appeals (Board) from a November 2007 rating decision of a Decision Review Officer (DRO) at the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana, that granted service connection for a left ring finger disability and assigned the same an initial noncompensable disability rating, effective June 9, 1984, and a 10 percent disability rating effective August 8, 2006. An August 2008 rating decision granted a temporary total evaluation based on surgical or other treatment necessitating convalescence under 38 C.F.R. § 4.30 (2012), effective June 18, 2008, and assigned a 10 percent disability rating, effective September 1, 2008. A March 2009 rating decision denied an extension of the temporary total evaluation and denied a disability rating in excess of 10 percent. In January 2012, the Veteran testified via videoconference before the undersigned Veterans Law Judge, seated at the Board's Central Office in Washington, D.C. A transcript of the hearing has been 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 Additional development is needed prior to further disposition of the claim. As a preliminary matter, the Board notes that the Veteran's most recent VA treatment records associated with the claims file, considering both the physical claims file and Virtual VA, are dated in May 2011. There is no evidence that the Veteran has ceased VA treatment. In fact, a November 2011 Report of Contact indicates that the Veteran telephoned the RO and requested that further adjudication of his claim be held until record of his recent VA December 2011 treatment was associated with the claims file. At the time of his Board hearing, he also reported that his most recent VA treatment was in December 2011. Further, an August 2008 Report of Contact indicates that the Veteran telephoned the RO and inquired as to VA vocational rehabilitation subsequent to surgical treatment for his left ring finger disability. It is unclear to the Board if the Veteran applied for VA vocational rehabilitation or underwent the same. Because VA is on notice that there are additional records that may be applicable to the Veteran's claim and because the updated VA treatment records, and possibly, VA vocational rehabilitation records, may be of use in deciding the claim, these records are relevant and should be obtained. Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). The Board notes that the Veteran filed a VA Form 21-4142, Authorization and Consent to Release Information to VA, in March 2007, in favor of Dr. Mahon. He filed additional authorizations in November 2008 in favor of McDonald Physical Therapy and St. Joseph Regional Medical Center. While the Veteran himself attached some private treatment records to each authorization, and supplemented the record on a number of occasions with additional private treatment records from McDonald Physical Therapy; it remains that he authorized VA to obtain his complete records from each identified provider. To date, it does not appear that the RO requested such private treatment records. The previously submitted authorizations are now outdated. On remand, the Veteran should be informed that VA did not request his complete private treatment records from Dr. Mahon, McDonald Physical Therapy, and St. Joseph Regional Medical Center, and provided an opportunity to file updated authorizations for VA to request such. The Veteran underwent surgery to treat his left ring finger disability in June 2008, and he underwent VA examination, conducted by a VA-contracted private provider, to determine the severity of the same in November 2008. While the Veteran has not specifically asserted that his disability has worsened since the time of his last VA examination; at the time of his Board hearing, he asserted that his disability has worsened since the time of the June 2008 surgery. He described treatment since that time, including an offer of amputation. When available evidence is too old for an adequate evaluation of a Veteran's current condition, VA's duty to assist includes providing a new examination. Weggenmann v. Brown, 5 Vet. App. 281 (1993). See also Olsen v. Principi, 3 Vet. App. 480, 482 (1992), citing Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992) (wherein the United States Court of Appeals for Veterans Claims (Court) held that, when a Veteran claims that a disability is worse than when originally rated, or last examined by VA, and the available evidence is too old to adequately evaluate the current state of the condition, VA must provide a new examination). See, too, Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (wherein the Court determined the Board should have ordered a contemporaneous examination of the Veteran because a 23-month old examination was too remote in time to adequately support the decision in an appeal for an increased rating); see, as well, Allday v. Brown, 7 Vet. App. 517, 526 (1995) (indicating that, where the record does not adequately reveal the current state of the claimant's disability, fulfillment of the statutory duty to assist requires a contemporaneous medical examination, particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since the previous examination). See also VAOPGCPREC 11-95 (April 7, 1995) and Green v. Derwinski, 1 Vet. App. 121 (1991). The Veteran therefore needs to be reexamined to reassess the severity of his service-connected left ring finger disability. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file the Veteran's treatment records maintained by the VA Medical Center (VAMC) in Indianapolis, Indiana, from May 2011 to the present, as well as his VA vocational rehabilitation folder, if any. If a negative response is received from any VA facility, the claims file should be properly documented in this regard; and the Veteran must be properly notified and provided an opportunity to submit such records. 2. Contact the Veteran and inform him that while his claims file includes the private treatment records he submitted during the course of the appeal, VA did not request his complete private treatment records from Dr. Mahon, McDonald Physical Therapy, and St. Joseph Regional Medical Center, at the time he submitted his prior authorizations. Provide the Veteran VA Forms 4142, Authorization and Consent to Release Information to the VA, and inform him that if he wishes VA to assist him in obtaining his complete private treatment records, he must submit such updated authorizations. Inform him that he may submit any additional or updated private treatment records if he so chooses. If the Veteran submits an updated authorization, obtain and associate with his claims file his private treatment records from the identified provider. If a negative response is received from any provider or facility, the claims file should be properly documented in this regard; and the Veteran must be properly notified and provided an opportunity to submit such records. 3. Schedule the Veteran for an examination with an appropriate examiner to determine the current severity of his service-connected left ring finger disability. The examiner should note all relevant pathology, including any disabling effects, and all indicated tests, to include range of motion studies, should be conducted. The claims file, to include a copy of this remand, should be made available to the examiner for review in conjunction with the examination, and the examiner 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 examiner 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 the scheduled examination. 4. Then, after ensuring any other necessary development has been completed; readjudicate the Veteran's claim, considering any additional evidence added to the record. If the action remains adverse to the Veteran, provide the Veteran and his representative with a Supplemental Statement of the Case (SSOC) and allow the Veteran an appropriate opportunity to respond thereto. Thereafter, return the case to the Board. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). 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). 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. 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).