Citation Nr: 1310215 Decision Date: 03/26/13 Archive Date: 04/02/13 DOCKET NO. 09-23 986 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for lumbar degenerative disc disease, right sacroilleitis with degenerative disc disease, and L4 and L5 herniated nucleus pulposis (a back disability). 2. Entitlement to an effective date prior to November 8, 2007, for a 10 percent rating for status post 4th and 5th metacarpal fractures with mild degenerative joint disease of interphalangeal and metacarpal joints of the right hand (right hand fracture residuals). 3. Entitlement to an increased rating in excess of 10 percent disabling for right hand fracture residuals. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD L.M. Yasui, Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from January 1960 to January 1964. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In January 2012, the Board remanded this matter to the RO via the Appeals Management Center (AMC) in Washington DC to obtain outstanding treatment records and to afford the Veteran VA examinations of the spine and hands. Those actions were completed and the matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). Additional discussions of compliance with the January 2012 Board Remand is included in both the Duties to Notify and Assist and Remand sections below. The United States Court of Appeals for Veterans Claims (Court) held that if the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel to that claim for an increased rating is whether a total disability rating based on individual unemployability (TDIU) as a result of that disability is warranted. Rice v. Shinseki, 22 Vet. App. 447 (2009). Here, the record reflects that the Veteran is retired and while the Veteran indicated that his right hand fracture residuals interfered with his employment, he has not contended that it has rendered him unemployable. As such, the Board finds that a claim for a TDIU is not raised by the record. Rice, supra. The issues of an increased rating for right hand fracture residuals and entitlement to an earlier effective date for the 10 percent rating for the service-connected right hand fracture residuals are addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. FINDINGS OF FACT 1. The Veteran sustained back injuries in service which manifested, at most, in soft tissue injury. 2. Symptoms of a back disability were not chronic in service. 3. Symptoms of a back disability have not been continuous since service separation. 4. The Veteran's current back disability is not related to active service. CONCLUSION OF LAW The criteria for service connection for a back disability have not been met. 38 U.S.C.A. §§ 101, 1101, 1112, 1131, 5103(a), 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Court issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. The notice included provisions for disability ratings and for the effective date of the claim. In a timely letter in November 2007, the RO provided notice to the Veteran regarding what information and evidence is needed to substantiate a claim for service connection, as well as what information and evidence must be submitted by the Veteran, and what evidence VA would obtain. The November 2007 notice letter included provisions for disability ratings and for the effective date of the claim. With regard to the duty to assist as to the service connection claim, VA has made reasonable efforts to obtain relevant records and evidence. Specifically, the information and evidence that has been associated with the claims file includes the Veteran's service treatment records, post-service VA treatment records, a VA examination of the Veteran's spine in February 2012 (afforded to the Veteran pursuant to the January 2012 Board Remand), VA examinations of the Veteran's right hand in March 2008, August 2009, and February 2012 (afforded to the Veteran pursuant to the January 2012 Board Remand), and the Veteran's statements. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA opinions and findings obtained in this case are adequate with respect to the service connection claim. The VA nexus opinion provided regarding the Veteran's back disability, pursuant to the January 2012 Board Remand, considers all of the pertinent evidence of record, to include the statements of the Veteran, and provided a complete rationale for the opinion stated. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4); see also Stegall, 11 Vet. App. at 268. The Board notes the Veteran's contention that his service treatment records are incomplete as some reports are missing. See May 2009 Substantive Appeal. The claims file contains the service treatment records that were obtained and there is no indication (other than the Veteran's assertion) that the service treatment records are no complete, the Board nevertheless recognizes that it has a heightened duty to explain its findings and conclusions in a cases where there are missing records and to carefully consider the benefit-of-the-doubt rule. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992). As such, the RO has provided assistance to the Veteran as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. The Veteran has not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide this appeal. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006). Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claim. (CONTINUED ON NEXT PAGE) Service Connection - Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases, such as arthritis, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). In this case, there is an indication of sacroiliitis (referred to by the February 2012 VA examiner as sacroeillitis), which may be considered as a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) applies. Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. For the showing of "chronic" disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b). In rendering a decision on appeal the Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). In determining whether statements submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza, 7 Vet. App. at 498. Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Charles v. Principi, 16 Vet. App. 370 (2002); Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). A veteran as a lay person is competent to offer an opinion on a simple medical condition. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (citing Jandreau at 1372). Also, a veteran can attest to factual matters of which he or she had first-hand knowledge, e.g., experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the veteran's claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). Medical evidence that is speculative, general or inconclusive in nature cannot support a claim. See Obert v. Brown, 5 Vet. App. 30, 33 (1993); see also Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996). A physician's statement framed in terms such as "may" or "could" is not probative. See Warren v. Brown, 6 Vet. App. 4, 6 (1993). A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). As discussed above, the Board notes that in cases where the Veteran's service treatment records are unavailable through no fault of his own, a heightened duty exists to assist the Veteran in the development of the case and to provide reasons or bases for any adverse decision rendered without these records. See O'Hare v. Derwinski, 1 Vet App. 365 (1991); Layno v. Brown, 6 Vet. App. 465, 469 (1994). In this case, the Veteran's service treatment records have been associated with the claims file; however, the Veteran has contended that they are incomplete. While there is no such indication of outstanding service treatment records, other than the Veteran's own statements, the Veteran was requested to send any pertinent records in his possession. See November 2007 Notice Letter. Thus, the Board concludes that VA's duty to assist the Veteran is satisfied. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Service Connection for a Back Disability The Veteran asserts that he has a current back disability related to his military service. In a statement received in November 2008 the Veteran indicated that he injured his back during service after being hit by a jeep. The Veteran has also contended that he sustained a back injury during training in 1962. After a review of all the evidence of record, lay and medical, the Board finds that the weight of the evidence demonstrates that the Veteran sustained back injuries in service, but that symptoms of a back disability were not chronic during active service. A September 1962 service treatment record indicated that the Veteran did a lot of lifting during the day and complained of soreness around his shoulder blades and upper lumbar right paraspinal muscle spasm. He was treated with medication and hot compresses. A March 1963 service treatment record (dealing with the hip) noted that the Veteran had been "hit by auto last P.M." At that time, there were no complaints of, or treatment for, back pain or a back injury. However, in his May 2009 substantive appeal, the Veteran stated that after the car accident, he was taken to the base hospital where X-rays were taken and he was held overnight. He also indicated that he had no broken bones, but had bruises of the right hip and back. The Board finds that the Veteran sustained injuries to his back in September 1962 and March 1963. A service treatment record, dated in April 1963, included the notation, "[a]lso pain back after wrestling last P.M." While the treatment report on that date also indicated that the Veteran wanted to check an old fracture of the hand causing hand and fingers not to extend, and it is reasonable to conclude that the treating health professional was referring to pain in the hand, the February 2012 VA examiner instead construed this note to mean that the Veteran also complained of back pain at that time. It is unclear whether this April 1963 service treatment record indicated a complaint of in-service back pain. Regardless, resolving doubt in the Veteran's favor, the Board already determined that the Veteran sustained back injuries in service. The Veteran's service treatment records indicate that his symptoms of back injury (in September 1962, March 1963, and April 1963) resolved. With the exception of those service treatment records, there are no other complaints of, or treatment for, a back condition in service. The evidence in this case includes service treatment records from June 1963 (merely two months after the April 1963 back injury) to September 1963, during which the Veteran sought treatment for other conditions, to include left knee pain and right hand tenderness. During this time period when the Veteran clearly would seek medical care for any ailment, including joint pain, he did not complain of, or seek treatment for, back disability symptoms. Indeed, the separation report of medical examination from January 1964 revealed a normal clinical evaluation of the Veteran's spine. While the Veteran is competent to state that he had back symptoms at any time, including in service, the Board finds that the Veteran's assertions of chronic back symptoms and diagnosis in service are outweighed by the other, contemporaneous, lay and medical evidence of record (particularly, the service treatment records), and are not credible. See Charles v. Principi, 16 Vet. App. 370 (2002). If there is no showing of a chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). The Board next finds that the weight of the evidence demonstrates that symptoms of a back disability have not been continuous since service separation in January 1964. When the Veteran initially filed a claim for compensation in 1972, he did not report or seek compensation for any back condition as having begun during service. The Board acknowledges that symptoms, not treatment, are the essence of any evidence of continuity of symptomatology (Savage v. Gober, 10 Vet. App. 488, 496 (1997)); however, the fact the Veteran did not seek compensation for a back disability at the time he was seeking service connection for another disorder suggests to the Board that there was no pertinent back symptomatology at that time. Indeed, the Veteran submitted other claims for both service connection and increased ratings of other conditions prior to filing a claim for service connection of a back disability. While inaction regarding filing a claim is not necessarily indicative of the absence of symptomatology, where, as here, a Veteran takes action regarding other claims, it becomes reasonable to expect that the Veteran is presenting all issues for which he is experiencing symptoms, including those he believes are related to service. In other words, the Veteran demonstrated that he understood the procedure for filing a claim for VA disability compensation, and he followed that procedure in other instances where he believed he was entitled to those benefits. In such circumstances, it is more reasonable to expect a complete reporting than for certain symptomatology to be omitted. Thus, the Veteran's inaction regarding a claim for a back disability, when viewed in the context of his action regarding other claims for compensation, may reasonably be interpreted as indicative of the Veteran's belief that he did not experience onset of a back disability in service, or the lack of back symptomatology at the time he filed the claim, or both. The assertion of continuity of symptomatology is therefore not credible. Additionally, following service separation in January 1964, the evidence of record shows no findings, diagnosis, or treatment for a back disability for many years after service. In this regard, the Veteran reported (during the February 2012 VA examination) that in 1972, he had the onset of right lumbar pain again; however, the Veteran reported no known injury. The Veteran also reported that he sought treatment at VA in the 1990s and has been treated for his back disability since. While there are no treatment reports of back pain in 1972 or in the 1990s, even assuming that the Veteran is competent to state he had symptoms of back pain at any time, this still leaves an eight year gap between service discharge and symptoms of back pain post service. The absence of post-service complaints of a back condition or treatment after service for eight years until 1972 is one factor, considered in addition to the other factors stated in this decision, that tends to weigh against a finding of either chronic back symptoms in service or continuous symptoms of a back disability after service separation. See Buchanan, 451 F.3d at 1337 (holding that the Board may weigh the absence of contemporaneous medical evidence as one factor in determining credibility of lay evidence, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (the passage of many years between discharge from active service and the medical documentation of a claimed disability is one factor that tends to weigh against a claim for service connection). Also, in this regard, the evidence of record does not demonstrate that the Veteran had arthritis of the back that manifested within one year of separation from active service as there are no reports of arthritis of his back within one year of separation from service, let alone a report of the degree of disability at that time. As such, service connection cannot therefore be presumed under the provisions of 38 C.F.R. §§ 3.307 and 3.309(a), for chronic disease. The Board further finds that the weight of the evidence demonstrates that the Veteran's currently diagnosed back disability is not related to his active service. Pursuant to the January 2012 Board Remand, the Veteran underwent a VA examination of his spine in February 2012. The February 2012 VA examiner reviewed the claims file, including service treatment records, and conducted an interview and physical examination of the Veteran. He accurately indentified relevant service treatment records indicating injury to the Veteran's back. He also noted the Veteran's report of being hit by a jeep on base and again injuring his lumbar back, which resolved with no symptoms at discharge. As discussed above, the examiner considered the April 1963 service treatment record as a complaint of back pain. The examiner diagnosed the Veteran with lumbar degenerative disc disease, right sacroilleitis with degenerative disc disease, and L4 and L5 herniated nucleus pulposis. With respect to the etiology of the Veteran's current back disability, the VA examiner opined that it is less likely than not that the current condition was incurred in or caused by the claimed in-service injury. The examiner explained that after a review of the Veteran's records, his service treatment reports indicated a report of a lifting injury in September 1962 where the Veteran complained of thoracic pain at the level of the scapulae. The health professional examining the Veteran at that time did note upper right lumbar muscular spasm; however, no follow-up visit was necessary and the treatment was conservative. The VA examiner also noted a single episode of lumbar pain in April 1963, which occurred while wrestling. No indications of a disc condition or radiculopathy were found and the Veteran was treated conservatively with no further visits with regard to that injury. The examiner indicated that the Veteran's separation physical indicated that he had no lumbar problems at the time of discharge. He further explained that the episodes treated on active duty were muscular in nature and soft tissue injuries without evidence of nerve root or sciatic nerve trauma. As an additional basis for his medical conclusion, the examiner indicated that the Veteran's current back disability is related to chronic sacroilleitis and degenerative disease of the spine, neither of which were noted while the Veteran was in active duty. With regard to the contention that the soft tissue injuries noted in service were the cause of the Veteran's current chronic sacroilleitis and degenerative disc disease, the examiner noted no known medical authorities or peer reviewed medical literature, which supports the contention that lumbar strain can be causative for the development of lumbar degenerative disc disease or chronic sacroilleitis. Therefore, the Board affords the opinion of the February 2012 VA examiner, a physician, great probative weight as his examination report specifically stated the reasons for his medical opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Prejean, 13 Vet. App. 448-9 (holding that factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion). The Board now turns to the Veteran's assertions regarding the relationship between his service and his current back disability. Here, although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, whether the Veteran's current back disability is related to his active service, falls outside the realm of common knowledge of a lay person. See Jandreau, 492 F.3d at 1377 (lay persons not competent to diagnose cancer); see also Barr, 21 Vet. App. at 303 (lay testimony is competent to establish the presence of observable symptomatology). As such, as lay person, he is without the appropriate medical training and expertise to offer an opinion on a medical matter, including the etiology of a specific disability. As such, his lay opinion does not constitute competent medical evidence and lacks probative value. 38 U.S.C.A. § 1153(a); 38 C.F.R. §§ 3.303(a), 3.159(a). Based on this evidence, the Board finds that the weight of the competent evidence demonstrates no relationship between the Veteran's current back disability and military service, including no credible evidence of continuity of symptomatology of back symptoms following service separation. On the question of the relationship of current back disability to service, the only competent and probative nexus opinion of record, in February 2012, weighs against the claim. The February 2012 VA opinion is competent and probative medical evidence as it is factually accurate, and is supported by an adequate rationale. The VA examiner was informed of the pertinent evidence, reviewed the claims file, including the Veteran's own reported histories and complaints, and fully articulated the opinion; therefore, the Board finds that a preponderance of the lay and medical evidence that is of record weighs against a finding of a relationship between a back disability and service. For these reasons, the Board finds that a preponderance of the evidence is against the claim for service connection for a back disability, and the claim must be denied. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for a back disability is denied. REMAND Another remand is required in this case to ensure that there is a complete record upon which to decide the Veteran's claim of an increased rating in excess of 10 percent disabling for right hand fracture residuals, so that he is afforded every possible consideration. VA has a duty to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim for the benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a) (West 2002); 38 C.F.R. § 3.159(c), (d) (2012). In February 2012, the Veteran underwent a VA examination of his hands pursuant to the January 2012 Board Remand. At that time, the examiner indicated that the Veteran had poor grip strength, with pain as a daily occurrence. The Veteran reported that he is unable to use a screwdriver secondary to loss of grip strength and pain with the maneuver. The VA examiner noted that repetitious gripping increases the Veteran's pain and weakness. Upon objective examination, the examiner measured the Veteran's right hand grip strength at 4/5, indicating active movement against some resistance. However, the February 2012 VA examiner only diagnosed the Veteran with fracture of the right 4th and 5th metacarpals with residual limitation of range of motion of the fingers, secondary to degenerative joint disease and myofascial pain. The examiner did not indicate the etiology of the decreased grip strength, whether the decreased grip strength is an indication of other neurological problems, or whether the symptom was attributable to his service-connected right hand fracture residuals. Indeed, during the previous VA examination of the Veteran's hands in August 2009, the Veteran reported decreased grip strength. At that time, the Veteran also reported that he had great difficulty manipulating hand tools. As to the effects on his daily living, the Veteran reported decreased dexterity, sloppy handwriting, difficulty dressing, problems with pulling on socks, and tying his shoes. With respect to the effects on his job, the Veteran indicated that it was difficult to grip the rungs of the ladder due to his right hand. Based on the VA examinations, the extent and severity of the Veteran's right hand fracture residuals is still unclear based on his subjective reports of decreased grip strength and the objective finding of grip strength that had active movement against some resistance. As such, the Board finds that an addendum medical opinion is required in order to identify all manifestations of the Veteran's service-connected right hand fracture residuals and to determine the current severity of those aspects of disability. Barr, 21 Vet. App. at 312; see also Stefl v. Nicholson, 21 Vet. App. 120 (2007). In this regard, a remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. Stegall at 271. Failure of the Board to ensure compliance with remand instructions constitutes error and warrants the vacating of a subsequent Board decision. Id. Therefore, pursuant to Stegall, this issue must again be remanded for compliance with the January 2012 Board Remand and an addendum medical opinion must be obtained to ascertain the current nature and severity of the Veteran's service-connected right hand fracture residuals. As the development regarding the increased rating issue may impact the earlier effective date claim, that issue is deferred. Accordingly, the issue of an increased rating in excess of 10 percent disabling for right hand fracture residuals is REMANDED for the following action: 1. If possible, request that the medical professional who conducted the February 2012 VA examination review the claims file and provide an addendum medical opinion. The claims file, including a copy of this Remand, must be made available to, and be reviewed by, the examiner. The examiner should note such review in the examination report (another examination of the Veteran is not required unless the examiner finds it necessary in determining the diagnosis and etiology of the objectively reported decrease in grip strength). If the February 2012 examiner is not available, obtain the requested opinion from a medical professional with expertise in orthopedics. If the examiner determines that an additional examination of the Veteran is necessary to provide a reliable opinion as to diagnosis and causation, such examination should be scheduled. However, the Veteran should not be required to report for another examination as a matter of course, if it is not found to be necessary. The claims folder must be made available to and reviewed by the examiner. The examiner is requested to provide findings on the following and include an appropriate rationale for those findings: a) Describe and diagnose any additional manifestations of the service-connected right hand fracture residuals (if any), to include, but not limited to, a neurological condition and the documented decreased grip strength (a finding that the Veteran does, or does not, have decreased grip strength and/or a neurological disability associated with his right hand fracture residuals would be of great assistance to the Board); and b) If decreased grip strength and/or a neurological disability associated with the right hand fracture residuals is found, evaluate the extent and severity of any decreased grip strength and diagnosed neurologic deficiencies of the right hand by rendering an opinion as to whether it more nearly approximates mild, moderate, or severe, incomplete paralysis, or complete paralysis. The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. A clear rationale should be given for all opinions and conclusions rendered. The opinions should address the particulars of this Veteran's medical history and the relevant medical science as applicable to this claim. If an opinion cannot be rendered without resorting to speculation, the examiner should state whether the inability to provide an opinion was due to a need for further information (with said needed information identified) or because the limits of medical knowledge had been exhausted regarding the etiology of the disorder. 2. When the development requested has been completed, and the RO has ensured compliance with the requested actions, the issue of an increased rating in excess of 10 percent disabling for right hand fracture residuals and entitlement to an effective date prior to November 8, 2007, for a 10 percent rating for right hand fracture residuals should again be reviewed by the RO on the basis of the additional evidence. If the benefit sought is not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matter 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. 2012). ______________________________________________ K.J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs