Citation Nr: 1314514 Decision Date: 05/02/13 Archive Date: 05/15/13 DOCKET NO. 10-31 897 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial compensable disability rating for residual paresthesia, status post laceration to the left middle finger. 2. Whether the basic eligibility criteria to establish entitlement to nonservice-connected disability pension benefits have been met. REPRESENTATION Appellant represented by: Daniel G. Krasnegor, Esq. ATTORNEY FOR THE BOARD F. Yankey, Counsel INTRODUCTION The Veteran had active duty service from March 1988 to October 1988 and from February 2006 to April 2006. He had service in the Army National Guard, which included periods of active duty, active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA). He also has was appears to be service in the Naval Reserves. In July 2011, the Board denied the Veteran's claims for an initial compensable disability rating for his service-connected residual paresthesia, status post laceration to the left middle finger, and entitlement to nonservice-connected disability pension. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). As discussed further below, in September 2012, the Court issued a decision, which vacated the Board's July 2011 decision, and remanded the case to the Board for action consistent with its decision. The case has been returned to the Board for further appellate action. 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 As noted above, in an August 2010 decision, the Board denied the Veteran's claims for an initial compensable disability rating for his service-connected residual paresthesia, status post laceration to the left middle finger, and entitlement to nonservice-connected disability pension, and the Veteran appealed this decision to the Court. In its September 2012 Memorandum Decision, the Court found that the Board failed to provide adequate reasons or bases for its conclusion that Diagnostic Code 8512 was not applicable to the Veteran's claim for a compensable rating for his left middle finger disability. Accordingly, the Court found that a remand was required for the Board to consider whether an increased rating for the Veteran's left middle finger disability is warranted under the diagnostic codes related to neurological conditions, including Diagnostic Code 8512. The Court also found that, with regard to the Veteran's claim for nonservice-connected pension benefits, a remand was required for the Board to request that the VA attempt to obtain records pertaining to the Veteran's claimed additional periods of service. The Veteran has reported that he experiences numbness, stiffness, decreased dexterity and strength, and decreased sensation in the left middle finger. He also reported that his physicians informed him at one time that he might have permanent nerve damage in the finger. See March 2009 statement from the Veteran. In October 2009, the Veteran underwent a VA hand, thumb and fingers examination, at which time the claims file was reviewed. He was noted to have sustained a laceration to the left middle finger in 2009 when a grenade simulator exploded in his hand during his reservist service. The VA examiner noted that the X-rays at that time were negative and that the Veteran had not undergone surgery for his disability. The Veteran reported having residual symptoms of paresthesia at the tip of his finger to the 1/2 of the middle phalangeal joint, decreased strength, dexterity, and stiffness. He denied having pain in this area, but reported that the paresthesia was constant. The Veteran stated that he was still able to grip, but that it just felt "funny." He denied receiving any treatment for his disability. The Veteran denied having had any incapacitating episodes during the previous twelve months due to his left finger disability. He also denied that his disability had any effect on his activities of daily living or on his usual occupation. The musculoskeletal and neurological examination revealed that the Veteran was right hand dominant. He denied the need for any assistive devices, having undergone any amputations, or the use of any prosthetics. There was no atrophy or hypertrophy on examination. Strength testing was 5/5 to gravity resistance, which was noted to be within normal limits for the Veteran's age. His grip strength was 5/5. The Veteran had normal sensation in his left hand, although his sensation was decreased in the third finger from the distal middle half of the phalanx to the tip. He was also observed to have decreased sensation in this area. Range of motion of the left hand was reported as follows: MCP from 0 to 90 degrees; PIP from 0 to 110 degrees; and DIP from 0 to 70 degrees. His third finger was nontender to palpation and his range of motion was full. The pinch test was 5/5 and his strength was full. The examiner again noted the Veteran's report of paresthesia at the pad of the left middle finger from the distal middle half of the MIP. The examination was negative for evidence of painful motion, tenderness, spasms, edema, fatigability, lack of endurance, weakness, or instability, except as noted. There was no loss of function with repetitive motion, except as noted. Loss of function due to flare ups could not be determined without resorting to mere speculation. The associated X-ray of the left hand was negative. The Veteran was diagnosed with a laceration of the left hand, number three phalanx, with residual paresthesia. The examiner opined that there were no functional limitations associated with this diagnosis. The Board notes that the Veteran's disability is currently rated under Diagnostic Code (DC) 5229, designated for evaluation of limitation of motion of the index or long finger. DC 5226, designated for evaluation of ankylosis of the long finger has also been considered. However, these criteria do not account for the Veteran's complaints of numbness and decreased sensation in the middle finger. As pointed out in the Court's Memorandum Decision, such symptoms are contemplated in the rating criteria for diseases of the peripheral nerves, including DC 8512, and as such, a higher rating under these diagnostic codes must also be considered. However, the October 2009 VA examination does not provide sufficient information for rating the disability under the diagnostic codes for diseases of the peripheral nerves, including DC 8512. The AMC or RO must make an attempt to provide the Veteran with a contemporaneous examination with findings responsive to the applicable rating criteria. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). The Board also notes that in a March 2013 statement, the Veteran's attorney notes that although the October 2009 examiner found that the Veteran did not experience pain in his middle finger, and that his disability did not have any effect on his usual occupation; the Veteran contends that he does have flare-ups of pain in his finger, which occur for no reason at all or when he performs a physical task or bumps against an object, and as such, his disability has increased in severity since the October 2009 examination. Given the Veteran's claims of increased symptomatology and in view of the direction provided by the September 2012 Memorandum Decision, a new VA examination is warranted to determine the current severity of his left middle finger disability. Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). The appellant is advised that it is his responsibility to report for the examination and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claim. See 38 C.F.R. §§ 3.158 and 3.655 (2012). The Veteran also contends that he is entitled to VA pension benefits due to his nonservice-connected disorders because he served for at least 90 days during a period of war. The Veteran's DD 214 confirms that he served in the U.S. Army from March 1988 to October 1988. Additional records in the claims file indicate that the Veteran had what appears to be over eight years of reservist service in the U.S. Naval Reserve. In this regard, official documentation from the Department of the Navy shows that he was discharged from the Naval Reserve in May 2004 due to his enlistment in the Florida Army National Guard. There is no indication from the record, and the Veteran does not claim that he incurred any injuries or diseases during his Naval Reserve service. The Veteran's DD 214 also confirms that he served in the Florida Army National Guard from May 2004 to May 2010. Included in this service was a period of active duty from February 28, 2006, to April 28, 2006. The Veteran incurred the aforementioned service-connected injury to his left middle finger during a period of INACDUTRA from October 9, 2009, to October 11, 2009. In a September 2010 statement, the Veteran reported that he served on active duty during a period of war. Specifically, he stated that his unit (Delta Company Forward Support Co. Chipley, Florida 850-638-6260) was activated and was serving in Kuwait, and that he was activated from September 2009 to approximately January 2010. As the Court noted in the September 2012 Memorandum Decision, VA is required to seek all relevant records pertaining to the Veteran's active military service if the Veteran furnishes sufficient information to enable VA to locate them. 38 U.S.C.A. § 5103A(c)(1). As the Veteran has identified the unit he was assigned to and the dates of his service, the Board finds that the RO should take the necessary steps to verify all periods of active military service for the Veteran, including any period of active duty service from September 2009 to January 2010, and ensure that all available service treatment records have been obtained, to specifically include any service treatment records from September 2009 to January 2010. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC shall contact the National Personnel Record Center (NPRC) and/or any other appropriate records repository, and request verification of all periods of military service, including all specific periods of active duty service. If additional periods of active military service are found, the RO/AMC should ensure that all available service personnel and treatment records have been obtained, to specifically include any service treatment records from September 2009 to January 2010, and associated with the claims file. 2. Obtain and associate with the claims file all relevant VA medical records and/or private records as may be reasonably identified by the appellant, which may have come into existence since October 2009. 3. Once the above development has been completed, schedule the Veteran for a VA examination to evaluate the current severity his service-connected left middle finger disability. The claims file, to include a copy of this remand, must be provided to and reviewed by the VA examiner in conjunction with the examination. All necessary diagnostic studies must be conducted to evaluate all orthopedic and neurologic disabilities affecting the left middle finger. In addition to performing a complete orthopedic examination, the examination shall determine the existence and extent of any neurologic manifestations related to the Veteran's service-connected left middle finger disability. The examiner must report any neurological complaints or findings attributable to the service-connected left middle finger disability, including any found during any nerve conduction and/or electromyography studies conducted. The examiner must specifically state whether any neurologic manifestations found to be related to the Veteran's service-connected left middle finger disability results in complete or incomplete paralysis of any nerve. The specific nerves involved must be identified. If incomplete paralysis is found, the examiner must state whether the incomplete paralysis is best characterized as mild, moderate, or severe; with the provision that wholly sensory involvement should be characterized as mild, or at most, moderate. The examiner should also address any functional impairment caused by the neurological abnormalities. The examiner should also provide an opinion as to whether the service connected disability would preclude the Veteran from maintaining employment for which his education and occupational experience would otherwise qualify him. A complete rationale should be given for all opinions and conclusions expressed. 4. After giving the Veteran full opportunity to supplement the record and undertaking any other development deemed appropriate, including a contemporaneous medical examination of the Veteran's left middle finger disability, the AOJ should re-adjudicate the Veteran's claim. 5. If any benefit on appeal remains denied, issue a supplemental statement of the case before returning the case to the Board, if otherwise in order. 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. 2012). _________________________________________________ JONATHAN B. KRAMER 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).