Citation Nr: 1316070 Decision Date: 05/16/13 Archive Date: 05/29/13 DOCKET NO. 09-27 382 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to a compensable disability rating for residuals of a right ring finger/hand fracture. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Spector, Associate Counsel INTRODUCTION The Veteran had active service from April 1960 to April 1964. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from an October 2007 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. The Veteran submitted a Notice of Disagreement (NOD) with this determination in October 2007, and perfected his appeal in July 2009. The Veteran requested a Travel Board hearing in an October 2007 statement and on an October 2007 Substantive Appeal. However, prior to a hearing date being scheduled, the Veteran submitted subsequent October 2007 and July 2009 Substantive Appeals withdrawing that hearing request. 38 U.S.C.A. § 20.704(d) (2012). The Board notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file associated with the above claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. 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 A review of the record discloses further development is necessary prior to the adjudication of the Veteran's claim of a compensable disability rating for residuals of a right ring finger/hand fracture. The Veteran contends that his residuals of a right ring finger/hand fracture are worse than the noncompensable evaluation assigned. The Veteran was last given a VA examination in August 2007 in order to establish the severity of his service-connected right ring finger/hand disability. In the October 2007 NOD, the Veteran reported that his service-connected right ring finger/hand injury caused his second post-service injury due to numbness in his finger. He reported that due to not being able to feel where his finger was, it got caught in machinery and injured for the second time. In an April 2009 statement and the July 2009 Substantive Appeal, the Veteran reported that his in-service injury caused his finger to be deformed, with a fourth of his finger missing. Additionally, he stated that his in-service injury caused problems with his fingernail, with growing multiple nails at the same time, and forcing the nail to rise up and get caught on things. He reported that his post-service injury was due to this nail problem resulting from his in-service injury. Specifically, he stated that the raised up nail got caught in a fixture, causing the jaws of the machinery to close on his finger. In this particular case, the August 2007 VA examination is too remote in time to address the current severity of the Veteran's service-connected residuals of a right ring finger/hand fracture. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (holding that a Veteran was entitled to a new examination after a two year period between the last VA examination and the Veteran's contention that his disability had increased in severity) and Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (an examination too remote for rating purposes cannot be considered "contemporaneous"). Therefore, the Board must remand this matter to afford the Veteran an opportunity to undergo a VA examination to assess the current nature, extent and severity of his residuals of a right ring finger/hand fracture. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43,186 (1995). Additionally, the Board notes that the Veteran may be compensated only for a service-connected disability, and the Board is precluded from differentiating between symptomatology attributed to a nonservice-connected disability and a service-connected disability in the absence of medical evidence which does so. Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam) (citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996)). Here, there is a question as to whether the Veteran's post-service machinery accident was caused or aggravated by his service-connected residuals of a right ring finger/hand fracture. Additionally, there is a question as to which of the Veteran's right ring finger/hand symptoms are related to his service-connected residuals of a right ring finger/hand fracture, and which symptoms are related to his post-service machinery accident. On remand, the examiner, if practicable, should attempt to determine whether any current right ring finger/hand disability is attributable to his post-service machinery accident and separate from the Veteran's service-connected residuals of a right ring finger/hand fracture. See also 61 Fed. Reg. 52695 (Oct. 8, 1996) (VA responding to commenters by noting that, when it is not possible to separate the effects of conditions, VA regulations at 38 C.F.R. § 3.102, which require that reasonable doubt on any issue be resolved in the claimant's favor, clearly dictate that such signs and symptoms be attributed to the service-connected condition). A review of the claims folder reveals that the Veteran was awarded Social Security Disability Insurance benefits from the Social Security Administration (SSA). Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). The claims file contains a July 2007 statement from the Veteran reporting that he had been on Social Security Disability since early 1987. However, the records regarding that application and decision have not been associated with the claims folder. Because SSA records are potentially relevant to the Board's determination, VA is obliged to attempt to obtain and consider those records. 38 U.S.C.A. § 5103A(c)(3) (West 2002); 38 C.F.R. § 3.159(c)(2) (2012); Voerth v. West, 13 Vet. App. 117 (1999); Baker v. West, 11 Vet. App. 163 (1998); Hayes v. Brown, 9 Vet. App. 67 (1996); Murincsak v. Derwinski, 2 Vet. App. 363 (1992); Diorio v. Nicholson, 20 Vet. App. 193 (2006); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Therefore, this appeal must be remanded in order to obtain the Veteran's complete SSA record. Accordingly, the case is REMANDED for the following action: 1) Request, directly from the SSA, complete copies of any determination on a claim for disability benefits from that agency, together with the medical records that served as the basis for any such determination. All attempts to fulfill this development should be documented in the claims file. If the search for these records is negative, that should be documented in the claims folder, and the Veteran must be informed of this in writing in accordance with 38 C.F.R. § 3.159(e). 2) Additionally, the Veteran should be scheduled for a VA examination to determine the current level of severity of his residuals of a right ring finger/hand fracture. The claims file and a copy of this remand must be made available to and reviewed by the examiner in conjunction with the examination. The examiner should note in the examination report that the claims folder and the remand have been reviewed. All tests deemed appropriate by the examiner, including X-rays, should be conducted. Specifically, the VA examiner should address the following: A. Set forth all current complaints, findings, and diagnoses pertaining to the Veteran's service-connected residuals of a right ring finger/hand fracture. B. State whether the Veteran's ring finger is shown to have an amputation without metacarpal resection, at proximal interphalangeal joint or proximal thereto, OR with metacarpal resection (more than one-half the bone lost). C. State whether there is resulting limitation of motion of other digits or interference with overall function of the hand due to the Veteran's service-connected a right ring finger/hand fracture. D. Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the service-connected residuals of a right ring finger/hand fracture caused or contributed to the post-service machinery accident in 1972. Specifically, the Veteran has reported that numbness of the finger and a fingernail problem due to his service-connected injury, resulted in his finger getting caught in a machine and reinjured post-service. E. If the service-connected residuals of a right ring finger/hand fracture did not cause or contribute to the post-service finger injury, to the extent possible please identify the symptoms and the functional impairment attributable to the service-connected residuals of a right ring finger/hand fracture. If the examiner is unable to separate the symptoms of the right ring finger/hand that are attributable to the service-connected residuals of a right ring finger/hand fracture to those of the post-service machinery accident, it must be so stated. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 3) Thereafter, the AMC/RO must review the claims file to ensure that the foregoing requested development has been completed. In particular, review the requested medical opinion to ensure that it is responsive to and in compliance with the directives of this remand and if not, implement corrective procedures. See Stegall v. West, 11 Vet. App. 268 (1998). 4) Following the completion of the foregoing, and after undertaking any other development it deems necessary, the AMC should readjudicate the Veteran's claim. If the claim remains denied, the AMC should then provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate period of time for response. Thereafter, the claims folder should be returned to the Board for further appellate review, if otherwise in order. 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). 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). _________________________________________________ WAYNE M. BRAEUER 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).