Citation Nr: 1326295 Decision Date: 08/19/13 Archive Date: 08/26/13 DOCKET NO. 11-12 609 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for residuals of right third finger fracture. 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for asthma. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD John Kitlas, Counsel INTRODUCTION The Veteran served on active duty from December 1974 to February 1975. This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. For the reasons explained below, the appeal is REMANDED to the RO via the Appeals Management Center (AMC). VA will notify the Veteran if further action is required on his part. REMAND While further delay is regrettable, the Board finds that a remand is required for additional development. The Veteran claims service connection for residuals of a fractured right third finger. His service treatment records do not show any disability of the third right finger was noted on his December 1974 enlistment examination, nor was any such disability noted on the concurrent Report of Medical History. Eleven days after entering service, he was treated for complaints of pain of the right middle finger, stating that he caught the finger in a door. After X-ray evaluation, it was found that he had an old articular injury to the PIP joint of the right long finger. This injury was identified as existing prior to entry. It was also stated that there was evidence of post-traumatic degenerative arthritis and limited motion. No separation examination appears to be of record as the Veteran was discharged for inadaptability/unsuitability for other reasons. The medical evidence of record does not mention the right third finger, although a 2011 decision from the Social Security Administration (SSA) notes that records they reviewed included evidence of osteoarthritis in the hands. Accordingly, the records relied upon by SSA should be requested on remand. In light of the above, the Board finds that a VA examination is necessary to determine whether the Veteran's right finger disability was incurred in or aggravated by service. In this regard, a pre-existing disease or injury will be found to have been aggravated by service only if the evidence shows that the underlying disability underwent an increase in severity; the occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability. Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); 38 C.F.R. § 3.306(a). Evidence of the veteran being asymptomatic on entry into service, with an exacerbation of symptoms during service, does not constitute evidence of aggravation. Green v. Derwinski, 1 Vet. App. 320, 323 (1991). A temporary or intermittent flare-up of a preexisting disease does not constitute aggravation. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991); Green v. Derwinski, 1 Vet. App. 320, 323 (1991). Concerning the request to reopen the claim for service connection for asthma, the Board notes that the SSA decision also noted the Veteran suffers from asthma, although such condition was not identified as a primary disability. As the SSA records may also be relevant to the asthma claim, remand of that issue is also required. The record contains VA treatment records dating from 1991 to 1992. Evidence in the record notes the Veteran at one time alleged treatment in 1978 or 1979 for asthma at the St. Louis VA Medical Center (VAMC) and one time in 1985 at the Poplar Bluff VAMC. Relevant ongoing medical records should also be requested. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to provide the dates of treatment and the names and addresses of all medical care providers, both VA and private, who treated him for his asthma and his right third finger since his discharge from service. After securing the necessary release, the RO/AMC should request any relevant records identified which are not duplicates of those already contained in the record. If any requested records are not available, the Veteran should be notified of such. 2. Request VA treatment records from the St. Louis VA Medical Center (VAMC) dating from 1974 through 1979 and records from the Poplar Bluff VAMC dating in 1985. Additionally, request relevant ongoing treatment record from the St. Louis VAMC dating since November 2010. If any requested records are not available, the Veteran should be notified of such. 3. Obtain from the Social Security Administration the records pertinent to the Veteran's claim for Social Security disability benefits as well as the medical records relied upon concerning that claim. 4. After the above has been completed to the extent possible and any records obtained have been associated with the file, schedule the Veteran for a VA hand examination to determine the current nature of any right third (long) finger disability and to obtain an opinion as to whether such disorder is related to service. The claims file must be reviewed by the examiner in conjunction with the examination. Following review of the claims file and examination of the Veteran, the examiner should respond to the following questions: a. Does the Veteran have a current disability of the right third finger? If so, please provide a diagnosis for the disability(ies) found. b. Did the Veteran's right third finger fracture clearly exist prior to the Veteran's entrance on active duty? In rendering this opinion, please address the significance of the finding of an old fracture of the finger on x-ray only 11 days after his entrance on active duty versus his report of catching his finger in the door. c. If the Veteran's right third finger fracture clearly existed prior to service, was the disability permanently worsened during service. In rendering this opinion, please address the significance of the Veteran's report of catching his finger in a door and the objective findings on January 1974 treatment notes. d. Did the Veteran's post traumatic degenerative arthritis of the right third finger clearly exist prior to the Veteran's entrance on active duty? In rendering this opinion, please address the significance of the finding of an old fracture of the finger on x-ray and the x-ray findings of post traumatic arthritis only 11 days after his entrance on active duty. e. If the Veteran's post traumatic degenerative arthritis of the right third finger clearly existed prior to service, was the disability permanently worsened during service? In rendering this opinion, please address the significance of the Veteran's report of catching his finger in a door and the objective findings on January 1974 treatment notes. f. If the post traumatic degenerative arthritis of the right third finger clearly existed prior to service and was permanently worsened during service, was that worsening clearly the result of the natural progression of the condition? Please explain why or why not. 5. After completing any additional development deemed necessary, the claims should be readjudicated. If the claims remain denied, the Veteran and his representative should be furnished a Supplemental Statement of the Case (SSOC), and provided an opportunity to respond. The case should then be returned to the Board for further appellate consideration, if 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). ____________________________________________ K. A. BANFIELD 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).