Citation Nr: 1326787 Decision Date: 08/22/13 Archive Date: 08/29/13 DOCKET NO. 10-02 395 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to a chronic right hand disability manifested by pain and functional impairment, claimed as separate and distinct from service-connected triangular fibrocartilage complex (TFCC) tear with scar, right wrist, and service-connected traumatic arthritis of the proximal interphalangeal (PIP) joint of the right index finger, status post fracture (to include as secondary to these aforementioned disabilities). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Bernard T. DoMinh, Counsel INTRODUCTION The Veteran served on active duty for training (ACDUTRA) in the Reserve Officer Training Corps (ROTC) from May 1980 to July 1980, followed by another period of ACDUTRA from June 1983 to October 1983, after which he served on active duty in the United States Army from November 1986 to March 2006. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2007 rating decision by the Atlanta, Georgia, Regional Office (RO) of the Department of Veterans Affairs (VA) which, inter alia, denied the Veteran's claim of entitlement to service connection for a chronic right hand disability manifested by pain and functional impairment. During the pendency of the appeal, the Veteran was granted an increased rating for TFCC tear with scar, right wrist (previously rated as right wrist scaphoid fracture with slight angulation and slight limitation of motion), which is currently rated 10 percent disabling, and service connection for traumatic arthritis of the PIP joint of the right index finger, status post fracture, currently rated 10 percent disabling. The Veteran contends in this appeal that he is entitled to service connection for a chronic right hand disability that is separate and distinct from these aforementioned service-connected right wrist and index finger disabilities. He asserts that his claimed right hand disability is directly related to service or is secondary to his service-connected right wrist and index finger conditions. (The Board notes that the Veteran's claims file includes written correspondence submitted during the pendency of this appeal, in which he has made clear that he is not presently seeking an increased evaluation for his right wrist and index finger disabilities.) In a November 2012 videoconference hearing before the undersigned Acting Veterans Law Judge from the Board, the Veteran, accompanied by his representative, appeared at the RO to submit evidence, oral testimony, and arguments in support of his appeal. A transcript of this hearing has been obtained and associated with the Veteran's claims file for review and consideration. For the reasons that will be discussed below, this appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the appellant and his representative if further action is required on their part. REMAND As previously stated, the Veteran contends that he has a chronic right hand disability manifested by pain and functional impairment, which he claims to be a separate and distinct disabling condition from his service-connected TFCC tear with scar of his right wrist and his traumatic arthritis due to fracture of the right index finger PIP joint. The Veteran's service treatment records reflect treatment in December 2000 for a fracture of his right index finger PIP joint and a scaphoid fracture of his right wrist. The service treatment records thereafter reflect treatment for pain affecting both his right wrist and right hand. Significantly, a treatment note dated in February 2006 shows diagnoses of horizontal TFCC tear of his right wrist and also synovitis. In the present state of the medical evidence, the Board as fact finder is unable to determine the clinical significance of the synovitis diagnosis presented in service and its relationship, if any, to the Veteran's claimed right hand disability. A remand is therefore warranted so that the Veteran's clinical history may be reviewed by the appropriate clinician, who should thereafter present a clarifying opinion addressing the aforementioned question. The post-service clinical records associated with the Veteran's present claim include VA-authorized medical examinations conducted in June 2006, October 2009, and March 2010, which objectively assess and discuss in detail the state of the Veteran's right wrist and index finger. However, the Board notes that these examination reports do not adequately address with specificity the clinical state of his right hand (i.e., that part of his right upper extremity whose structure comprises the bones, muscles, ligaments, tendons, nerves, and vasculature encompassed within the right palm and also the digits adjoining the service-connected right wrist and index finger) or its relevant diagnoses. This deficit is also noted by the Veteran's representative, who called the matter to the Board's attention at the November 2012 videoconference hearing. (See page 8 of the November 28, 2012 hearing transcript.) The Board is mindful that the United States Court of Appeals for Veterans Claims (Court) has held that when VA undertakes the effort to provide an examination for a service-connection claim, it must provide an adequate one. Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007). In this regard, a medical diagnosis and nexus opinion obtained from a VA-authorized examination is considered to be adequate when it is based on consideration of a claimant's prior medical history and describes the disability in sufficient detail so that the Board's adjudication of the disability claim may be a fully informed one. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). (See also McLendon v. Nicholson, 20 Vet. App. 79, 82-83 (2006): VA's duty to assist a claimant requires that it will provide a medical examination or obtain a medical opinion where, as in the present case, there is: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service; (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence to make a decision on the claim.) The Veteran specifically claims that he has a chronic right hand disability manifested by pain and functional impairment that is separate and distinct from his service-connected right wrist and index finger disabilities. However, the Board as finder of fact is presently unable to determine whether or not there exists an actual and diagnosable chronic disability that is specific to the Veteran's right hand and, if so, its relationship to his military service (to include his service-connected right wrist and index finger disabilities) given the current state of the medical evidence. The Board is not competent to provide its own medical conclusions and is required to consider only independent medical evidence to support its factual findings rather than provide its own medical judgment in the guise of a Board opinion. See Colvin v. Derwinski, 1 Vet. App. 171 (1991). Therefore, a remand for a new VA medical examination to address this aspect of his claim is warranted. Accordingly, the case is REMANDED to the RO/AMC for the following actions: 1. Send the Veteran corrective VCAA notice pertaining to the issue of entitlement to service connection for a chronic right hand disability manifested by pain and functional impairment, claimed as separate and distinct from service-connected triangular fibrocartilage complex (TFCC) tear with scar, right wrist, and service-connected traumatic arthritis of the proximal interphalangeal (PIP) joint of the right index finger, status post fracture (to include as secondary to these aforementioned disabilities). 2. Per a review of the Veteran's claims file and the VBMS and Virtual VA electronic information databases, the VA clinical evidence of record is current up to March 2010. The RO should provide the Veteran with the opportunity to submit additional evidence in support of his claim for VA compensation for a chronic right hand disability, or otherwise identify relevant treatment sources, both private and VA. After obtaining the appropriate waivers, the RO should attempt to obtain copies of any such records not already associated with the Veteran's claims file. If the RO cannot obtain records identified as relevant 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. 3. After the foregoing development requested above has been accomplished, the Veteran should be scheduled for a medical examination by the appropriate clinician that specifically addresses the state of his right hand. All tests and studies deemed appropriate by the examiner should be performed. The Veteran's claims file must be made available to the examining clinician, who must state in his/her report that the Veteran's claims file was reviewed in conjunction with this examination. Thereafter, the clinician must present the diagnosis or diagnoses that specifically describe(s) any disabling condition affecting the Veteran's right hand: i.e., that part of his right upper extremity whose structure comprises the bones, muscles, ligaments, tendons, nerves, and vasculature encompassed within the right palm and the digits (excluding the service-connected right wrist and index finger). The reviewing clinician should then provide nexus opinions, presented in the context of the medical record, with complete supportive rationales, addressing the following questions: (a.) Does the Veteran have a diagnosed chronic disability or disabilities of his right hand that is/are separate and distinct from his service-connected TFCC tear with scar, right wrist (previously rated as right wrist scaphoid fracture with slight angulation and slight limitation of motion) and traumatic arthritis of the PIP joint of the right index finger, status post fracture? If so, then; (b.) Given the Veteran's documented medical history of a traumatic injury and fracture to the right wrist and right index finger PIP joint during active duty and the diagnosis of synovitis of the right upper extremity presented in service, is it at least as likely as not (i.e., 50 percent probability or greater) that the diagnosed right hand disability/disabilities revealed on examination had its/their onset during active military service? If the opinion is that the diagnosed right hand disabilities did not have their onset during active military service, then; (c.) The opining clinician should state whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's diagnosed right hand disability/disabilities revealed on examination is/are caused by, or aggravated by, his service-connected TFCC tear with scar, right wrist (previously rated as right wrist scaphoid fracture with slight angulation and slight limitation of motion). The opining clinician should also state whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's diagnosed right hand disability/disabilities revealed on examination is/are caused by, or aggravated by, his service-connected traumatic arthritis of the PIP joint of the right index finger, status post fracture. The term "aggravated" in the above context refers to a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability. If aggravation is present, the examiner should indicate, to the extent possible, the approximate level of severity of the disorder (i.e., a baseline) before the onset of the aggravation. A rationale for the requested opinions shall be provided. If the clinician cannot provide an opinion without resorting to mere speculation, he/she shall provide a complete explanation stating why this is so. In so doing, the clinician shall explain whether the inability to provide an opinion is the result of a need for additional information or that he /she has exhausted the limits of current medical knowledge in providing an answer to the particular question. The Veteran is hereby advised that failure to report for a scheduled VA examination, without good cause, may have adverse consequences for his claim. 4. After the above opinions have been obtained, the RO/AMC shall readjudicate the Veteran's claim of entitlement to service connection for a chronic right hand disability manifested by pain and functional impairment, claimed as separate and distinct from his service-connected TFCC tear with scar, right wrist, and traumatic arthritis of the PIP joint of the right index finger, status post fracture, in consideration of the additional evidence obtained. The service connection theories that the RO/AMC must address in its readjudication must include service connection on both a direct basis and as secondary to the aforementioned service-connected disabilities. If the benefit sought on appeal is not granted, the Veteran should be provided with a supplemental statement of the case and provided with sufficient opportunity to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of the claim. The Board intimates no opinion as to the outcome in this case by the action taken herein. 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). _________________________________________________ A. M. CLARK 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).