Citation Nr: 1318667 Decision Date: 06/07/13 Archive Date: 06/11/13 DOCKET NO. 06-06 026 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to an initial evaluation in excess of 10 percent for a right middle finger and right hand disability. REPRESENTATION Appellant represented by: Wisconsin Department of Veterans Affairs ATTORNEY FOR THE BOARD R. Dodd, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1972 to July 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. The appeal was previously remanded in February 2010 and July 2012 for additional evidentiary development. For the reasons indicated below, the appeal is again REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND Pursuant to the Board's July 2012 remand, the RO via the AMC was to obtain a VA examination in order to evaluate the current nature and severity of the Veteran's right middle finger disability as well as the right hand disability. Specifically, the Board requested that range of motion be included in assessing the Veteran's fingers and hand. The Veteran was provided with VA examinations in September 2012 and December 2012. Both examinations fully described and tested the manifestations relating to the Veteran's right fingers. However, neither examination performed observation or notation of the Veteran's right hand. In particular, no range of motion testing was provided for the hand, i.e. the wrist. The Board finds that the provided VA examinations did not comply with the instructions of the July 2012 remand, as half of the assessment relating to the Veteran's overall evaluation for his right hand and finger disability was omitted. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand confers on the claimant, as a matter of law, the right to compliance with the remand order). In order to adequately assess the Veteran's disability, including making a determination as to whether higher or separately evaluated and combined evaluations are appropriate, the Board must be apprised of the current nature and severity of all of the associated components. As such, upon remand, the VA examiner must evaluate the Veteran's right hand, to include range of motion testing for the right wrist, in addition to the Veteran's right fingers. Second, remand is required to provide an adequate opinion regarding the relationship of medical findings in the Veteran's right fingers to his service-connected right hand injury. Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311(2007). Here, the Veteran was provided with a VA examination in December 2012. At this examination, the Veteran was noted as having a limited range of motion in all fingers of the right hand. Pain was noted with motion and muscle strength testing revealed 4/5 for the right hand grip strength. Imaging revealed degenerative changes in the Veteran's fingers, and he was diagnosed with degenerative joint disease. The examiner opined that the Veteran's pain and weakness were not supported by the degenerative changes shown in the Veteran's fingers, but were rather more likely associated with some unrelated process. The examiner did not discuss whether the limitation of motion was attributable to the degenerative changes, nor did he discuss any apportionment of such degenerative changes to the Veteran's findings of pain or weakness. An opinion is considered adequate when it is based on consideration of an appellant's prior medical history and examinations and describes the disability in sufficient detail so that the Board's evaluation of the claimed disability is a fully informed one. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Additionally, an examination is required when necessary to make a decision on a claim. 38 C.F.R. § 3.159(c)(4) (2012). Here, the December 2012 VA examination opinion is inadequate for the purposes of fully assessing the severity of the Veteran's degenerative joint disease and the degree to which it causes limitation of motion, pain, or weakness independent of any other disease process or injury. As such, upon a new examination, the examiner is asked to opine with specificity as to the effects of the Veteran's degenerative joint disease on any medical findings and the percentage to which it is attributable. This evaluation should include, but not be limited to, prior findings of limitation of motion, pain, and weakness. As this case must be remanded for the foregoing reasons, any recent VA treatment records should also be obtained. The Board observes that the Veteran has received VA treatment for his right thigh and foot injuries and records of his VA care, dated since October 2008, have not been associated with the claims file. Under the law, VA must obtain these records. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2011); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Accordingly, the case is REMANDED for the following action: 1. The Veteran should be requested to provide the names, addresses and approximate dates of treatment of all medical care providers, VA and non-VA, who have treated him for the disability on appeal. After the Veteran has signed the appropriate releases, those records should be obtained and associated with the claims folder. Appropriate efforts must be made to obtain all available VA treatment records. All attempts to procure records should be documented in the file. If the AMC cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file. The Veteran is to be notified of unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit those records for VA review. 2. After any new evidence has been associated with the claims file, the Veteran should be scheduled with an appropriate in-person examination to determine the current severity of his right hand and finger disability. The entire claims file (i.e., both the paper claims file and any electronic medical records) should be made available to and be reviewed by the examiner, and it should be confirmed that such records were available for review. If the examiner does not have access to electronic medical records, any such relevant treatment records must be printed and associated with the paper claims file so they can be available to the examiner for review. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. The examiner is specifically asked to opine whether the Veterans decreased range of motion, pain, or weakness is due to the residuals of his service-connected right hand injury or some other non service-connected problem. The examiner should further provide to what percentage the residuals of the Veteran's service-connected right hand injury can be attributed to any findings of pain, limitation of motion, or weakness. The examiner must also provide range of motion testing for the Veteran's right wrist and fingers. Such testing must include repetitive testing and an assessment of functional loss due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion, weakness, excess fatigability, incoordination, pain on movement, swelling, or atrophy. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). In evaluating musculoskeletal disabilities, the VA must determine whether pain could significantly limit functional ability during flare-ups, or when the joints are used repeatedly over a period of time. See DeLuca, 8 Vet. App. at 206. 3. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 4. Review the examination report to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the AMC must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 5. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. 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). _________________________________________________ WILLIAM YATES 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).