Citation Nr: 1317516 Decision Date: 05/29/13 Archive Date: 06/06/13 DOCKET NO. 09-20 994 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to a disability rating higher than 10 percent for right thumb laceration (dominant). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and her spouse ATTORNEY FOR THE BOARD C. Bosely, Counsel INTRODUCTION The Veteran had active service from July 1975 to June 1978. This matter comes originally came before the Board of Veterans' Appeals (Board) on appeal from an July 2007 rating decision of the Department of Veteran's Affairs (VA) Regional Office (RO). The Veteran testified at the RO in November 2009 before a Decision Review Officer. In March 2013, she testified before the undersigned in a hearing at the RO. A transcript of each hearing has been associated with the record on appeal, which now encompasses both a paper claims file and an electronic folder. The Veteran filed the instant claim for a higher rating in April 2007. Generally, an increased rating may be assigned up to one year prior to the filing of an increased rating claim. See 38 C.F.R. § 3.400(o); Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010). Historically, however, there is an intervening Board decision in December 2006, within the one year period prior to the April 2007 claim. The Veteran did not appeal the Board's December 2006 decision to the Court of Appeals for Veterans Claims (Court). Consequently, the period of appellate review is limited to the period after December 2006. In connection with the instant appeal, the Veteran has presented argument and evidence regarding a separately diagnosed neurological condition (neuralgia) in the right hand. However, this claim was previously adjudicated as a separate claim of service connection, which was denied in May 2002 (as "a disability manifested by numbness of the right hand") and again in January 2004 (as DeQuervain's Syndrome). Those two RO decisions are not on appeal before the Board. Thus, the Board is without jurisdiction to address the claimed neurological condition. Nonetheless, the Veteran's argument and evidence presents a claim to reopen the issue of entitlement to service connection for a neurological condition of the right hand, to include as secondary to the right thumb laceration (dominant). This new issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it must be referred to the AOJ for appropriate action. The appeal is REMANDED to the agency of original jurisdiction (AOJ) via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Board finds that a remand is necessary to afford the Veteran a new VA examination to address the severity of her service-connected symptomatology. The record on appeal shows that she last underwent a VA examination in August 2008, nearly 5 years ago, to evaluate the severity of her symptomatology. She and her husband testified during the March 2013 Board hearing that her symptoms had worsened and become more severely disabling since that examination. She specifically stated that has scarring that is tender to the touch, and the area has gotten bigger since the last examination. Hr'g Tr. 13. Her husband similarly testified that her deformity has increased extremely, and the pain sensations are a little bit more frequent now. Hr'g Tr. 15. As the record on appeal is otherwise inadequate to fully evaluate the severity of the disability, remand is necessary to afford the Veteran an opportunity to undergo a contemporaneous VA examination. See 38 C.F.R. §§ 3.326, 3.327 (noting that reexaminations will be requested whenever VA determines there is a need to verify the current severity of a disability, such as when the evidence indicates there has been a material change in a disability or that the current rating may be incorrect); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43,186 (1995). The AOJ must also ensure that all medical findings in the VA examination are expressed in terms conforming to the applicable rating criteria. See Massey v. Brown, 7 Vet. App. 204 (1994). Remand is also necessary to attempt to obtain all missing treatment records related to the disability. Of particular interest, the Veteran indicated at her March 2013 Board hearing that she intended to make a new appointment with her private doctor, Dr. Littlejohn, in the near future. Hr'g Tr. 9. In addition to any additional private records, the evidence shows that she also has treatment at VA; the record on appeal now includes VA treatment records ending in March 2008. Therefore, updated VA treatment records should be obtained and associated with the claims file. Accordingly, the case is REMANDED for the following actions: 1. Send the Veteran a letter requesting that she provide the names, addresses, and approximate dates of treatment for all private (non-VA) health care providers who may have additional records pertinent to the remanded claim, to include Dr. Littlejohn. 2. After obtaining any needed assistance from the Veteran, such as a signed Authorization and Consent to Release Information (Release), undertake all reasonable efforts to obtain all relevant pertinent private records identified by the Veteran, if not already associated with the claims file. This effort must include an initial request and, if the records are not received, at least one follow-up request. 3. Obtain all of the Veteran's VA treatment records since March 2008. These records should be added to the claims file on an ongoing basis until the case is recertified to the Board. 4. All attempts to fulfill the initial development specified in paragraphs 1-3 above must be documented in the claims file. All obtained records must associated with the Veteran's paper or electronic claims file. If, after making as many requests as are necessary to obtain the above records it is determined that the records sought do not exist or that further efforts to obtain those records would be futile, the AOJ should send notice to the Veteran, as directed by 38 C.F.R. § 3.159(e)(1), identifying: (i) the identity of the records VA was unable to obtain; (ii) an explanation of the efforts VA made to obtain the records; (iii) a description of any further action VA will take regarding the claim, including, but not limited to, notice that VA will decide the claim based on the evidence of record unless the Veteran submits the records VA was unable to obtain; and (iv) a notice that the Veteran is ultimately responsible for providing the evidence. 5. After completing the requested development in paragraphs 1-4 above, undertake any further development warranted by the record. Then, an appropriate VA examination(s) should be arranged to determine the nature and severity of all current residuals of the service-connected right thumb laceration. A copy of this remand and all relevant medical records should be made available to the examiner - such records must be made available to the examiner either in the electronic folder (eFolder), or, if the eFolder is not available (such as if the examiner has no access to Virtual VA), then via paper copies that are printed out for the examiner. Accordingly, the examiner should review the claims file, to include all pertinent evidence, the Veteran's lay assertions, and undertake any indicated studies. Then, based on the examination results and record review, the examiner is asked to identify the current nature of the Veteran's right thumb laceration, including any associated residuals. The examiner is also asked to assess the severity of the disability. The examiner is asked to specifically address whether the disability is manifested by ankylosis. Also, the examiner is asked to measure and describe the impairment associated with the Veteran's scarring. To the extent possible, the examiner should distinguish any symptoms associated with the right thumb laceration and symptoms associated with a nonservice-connected disorder. In doing so, please be as specific as possible. The examiner is thus requested to prepare a report setting forth all examination findings, along with a thorough rationale for all conclusions and opinion reached. 6. After completing all requested actions, plus any additional notification and/or development warranted by the record, readjudicate the remanded issue with consideration of all pertinent evidence and legal authority. If the benefit sought on appeal remains denied, the AOJ should expressly determine whether the matter should be referred to the Undersecretary for Benefits or to the Director of Compensation and Pension Services for extraschedular consideration. 38 C.F.R. § 3.321(b)(1). An appropriate supplemental statement of the case (SSOC) should then be issued that includes clear reasons and bases for all determinations, and affords the Veteran and her representative the appropriate time period to respond. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. 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). _________________________________________________ Paul Sorisio Acting 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).