Citation Nr: 1326798 Decision Date: 08/22/13 Archive Date: 08/29/13 DOCKET NO. 09-38 453 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to an evaluation in excess of 20 percent for post-operative residuals of a fracture and ankylosis of the right fourth finger (hereinafter, a right fourth finger disability). REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. Becker, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1980 to November 1990. This matter comes before the Board of Veterans' Appeals (Board) from a February 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The previously established 20 percent evaluation for the Veteran's right fourth finger disability was continued therein. He appealed this determination. Jurisdiction was then transferred to the RO in Atlanta, Georgia. The Veteran testified on this matter at a hearing before the undersigned Veterans Law Judge at this RO in September 2012. Based on review of his claims file and his Virtual VA "eFolder," and for the reasons described below, this appeal is remanded to the RO via the Appeals Management Center (AMC) in Washington, DC. REMAND The Board sincerely regrets the delay a remand entails, but adjudication of this matter cannot be undertaken as of yet. More development is needed to ensure the Veteran is afforded every possible consideration. VA indeed has a duty to assist him in substantiating this matter. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). I. Records Reasonable efforts must be made by VA to assist in the procurement of relevant records, as noted above. 38 U.S.C.A. § 5103A(b) (West 2002); 38 C.F.R. § 3.159(c) (2012). Reasonable efforts with respect to records in Federal custody consist of making as many requests as are necessary to obtain them unless it is concluded that they do not exist or that further requests would be futile. 38 U.S.C.A. § 5103A(b)(3) (West 2002); 38 C.F.R. § 3.159(c)(2) (2012). When the existence of non-Federal records is discovered, the claimant must be requested to either submit them to VA or provide enough information to identify and locate them along with an authorization for their release to VA. 38 C.F.R. §§ 3.159(c)(1), (e)(2) (2012). If information and authorization is provided, reasonable efforts consist of an initial request and one or more follow-up requests if necessary. 38 C.F.R. § 3.159(c)(1) (2012). The claimant shall be notified if requested records, whether Federal or non-Federal, cannot be or are not obtained. 38 U.S.C.A. § 5103A(b)(2) (West 2002); 38 C.F.R. § 3.159(e)(1) (2012). As there is no indication that the Veteran receives treatment from VA for his right fourth finger disability, no VA treatment records have been obtained by VA. Private treatment records addressing this disability have been obtained by VA and submitted by the Veteran, but they are dated only in 2008 and 2012. Thus, it is inferred that there may be outstanding pertinent private treatment records. VA accordingly must ask the Veteran to either submit any such records or to provide enough information to identify and locate them along with an authorization for their release to VA. If he provides the information and authorization, an initial request for the records must be made. Follow-up requests as well as notification to him and his representative if they are unsuccessful also must be made as necessary. II. Medical Examination VA's duty to assist includes a mandate that any VA medical examination obtained be adequate. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120 (2007); Hayes v. Brown, 9 Vet. App. 67 (1996). A VA medical examination is adequate when it allows the Board to perform a fully informed evaluation. Barr v. Nicholson, 21 Vet. App. 303 (2007). As such, it must describe the disability in sufficient detail. Stefl, 21 Vet. App. at 120; Ardison v. Brown, 6 Vet. App. 405 (1994). It also must be contemporaneous. Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); Allday v. Brown, 7 Vet. App. 517 (1995); VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43,186 (1995); Weggenmann v. Brown, 5 Vet. App. 281 (1993); Olson v, Principi, 3 Vet. App. 480 (1992); Proscelle v. Derwinski, 2 Vet. App. 629 (1992); Green v. Derwinski, 1 Vet. App. 121 (1991). In November 2008, the Veteran underwent a VA medical examination pertaining to his right fourth finger disability. As this examination was conducted almost five years ago, it is of considerable age. Neither the Veteran nor his representative has specifically contended that his right fourth finger disability has gotten more severe since then. However, it readily is inferred that this is a possibility. That examination revealed abnormal range of motion only in the Veteran's right fourth finger proximal interphalangeal joint. A June 2012 private treatment record submitted by him revealed abnormal range of motion in the proximal and distal interphalangeal joints of his right fourth finger. Reference further was made to slight worsening of his right hand. As such, the Veteran must be afforded the opportunity to appear for a contemporaneous VA medical examination. Of note are indications that the Veteran's right fourth finger disability affects the function of his other right fingers and indeed of his entire right hand. To ensure the disability is described in sufficient detail, it follows that each finger of his right hand, as well as of his entire hand as a whole, must be assessed. Of further note is an August 2008 worker's compensation accident report documenting that the Veteran injured his right finger on the job in June. Private treatment records dated in 2008 specify that the injury was to the right middle finger. Statements from the Veteran specify that the injury was to the right index finger. If dysfunction in either of these fingers is found to be affected upon assessment, the amount attributable to the work injury and to the right fourth finger disability must be determined. Given the above, a REMAND is directed for the following: 1. Ask the Veteran to either submit any outstanding private medical records regarding his right fourth finger disability or provide enough information to identify and locate them along with an authorization for their release to VA. If he provides the information and authorization, make an initial request for the records with a follow-up request or requests as necessary. Associate all records received with the claims file or "eFolder." If requested records ultimately are not received or are received but are incomplete, notify the Veteran and his representative. Document the claims file or Virtual VA "eFolder" as appropriate in this regard. 2. Then, arrange for the Veteran to undergo an appropriate VA examination regarding his right fourth finger disability. The claims file and pertinent documents in the "eFolder" shall be made available to, and reviewed by, the examiner. The examiner then shall interview the Veteran regarding his pertinent history, current symptoms, treatment for them, and their impact on his activities of daily living and employment. Information regarding the onset, frequency, duration, and severity of relevant symptoms, as well as flare-ups of such symptoms, shall be obtained. All tests, studies, and/or evaluations deemed necessary shall be performed, including initial and repeated range of motion with respect to the joints of each finger of the Veteran's right hand. Any objective evidence of pain during motion shall be identified. The impact of pain, weakness, excess fatigability, and/or incoordination on motion shall be expressed in terms of the degree of range of motion lost. Their impact on motion during flare-ups, if flare-ups are reported, also shall be expressed to the extent possible in terms of the additional degree of range of motion lost. Ankylosis, both favorable and unfavorable, in the joints of each of the Veteran's right fingers also shall be included. Finally, X-rays of each right finger shall be included. The examiner shall indicate whether the right fourth finger disability affects the function of the other right fingers or of the entire right hand. If there is dysfunction in the right index finger and/or middle finger, the examiner shall determine the amount attributable to the Veteran's June 2008 work injury and to his right fourth finger disability. Clear and complete rationale shall be provided for this determination. Each of the above actions shall be documented fully in a report. A copy of the report shall be placed in the claims file or "eFolder." 3. Thereafter, readjudicate the issue on appeal. If this benefit is not granted to 30 percent, the maximum evaluation sought by the Veteran, furnish him and his representative with a supplemental statement of the case (SSOC) and allow them the requisite time period to respond. A copy of the SSOC shall be placed in the claims file or "eFolder." No action is required of the Veteran until he is notified by the RO or AMC, but he is advised that his failure to report for a scheduled VA medical examination may result in denial of the benefit sought. 38 C.F.R. § 3.655 (2012). He also is advised that he has the right to submit additional evidence and argument on this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This matter must be afforded prompt treatment. The law indeed requires that all matters remanded by the Board or by the United States Court of Appeals for Veterans Claims (Court) be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Only a decision of the Board is appealable to the Court. 38 U.S.C.A. § 7252 (West 2002). A remand is in the nature of a preliminary order and does not constitute a decision on the merits by the Board. 38 C.F.R. § 20.1100(b) (2012).