Citation Nr: 1329903 Decision Date: 09/18/13 Archive Date: 09/25/13 DOCKET NO. 07-31 771 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to an increased rating for residuals of a right wrist injury with Kienbock's Disease and degenerative joint disease (DJD), status-post removal of the navicular bone, currently evaluated as 30 percent disabling. 2. Entitlement to a total rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. Young, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1983 to December 1987. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina that denied the Veteran's claim for an increased rating for service-connected residuals of a right wrist injury with Kienbock's Disease and DJD, status-post removal of the navicular bone. In August 2011, the Board remanded the Veteran's claim for evidentiary development. The Board notes that in a June 2012 rating decision the Veteran was granted service connection for right wrist carpal tunnel syndrome with an evaluation of 10 percent. A notice of disagreement was not filed within one year of the June 2012 rating decision; therefore, as it relates to the Veteran's service-connected right wrist carpal tunnel syndrome disability, the June 2012 rating decision is final and the Board does not have jurisdiction over that matter. The Board notes that the Veteran's claim for an increased rating for residuals of a right wrist injury with Kienbock's Disease and DJD status-post removal of the navicular bone was most recently readjudicated in June 2012. The Veteran's rating was increased from a 10 percent disability rating to a rating of 30 percent, but he was not granted the maximum benefit allowed. The United States Court of Appeals for Veterans Claims (Court) has held that a claimant will generally be presumed to be seeking the maximum benefits allowed by law and regulations, and it follows that such a claim remains in controversy where less than the maximum available benefit is awarded, or until the veteran withdraws the claim. AB v. Brown, 6 Vet. App. 35, 38 (1992). As noted above, during the pendency of this appeal, the Veteran was not granted the maximum benefit allowed. He also has not suggested that this increased rating would satisfy his appeal for a higher evaluation, nor has he or his representative otherwise suggested that the maximum rating available for that disability is not being sought. Therefore, the Board concludes that the issue of entitlement to an increased rating for residuals of a right wrist injury with Kienbock's Disease and DJD, status-post removal of the navicular bone remains before the Board. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND Unfortunately, another remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that, in addition to ensuring compliance with certain Court case law, there is a complete record upon which to decide the case. The Board also notes that the Court has held "that a remand by this Court or the Board confers on the veteran or other claimant, as a matter of law, a right to compliance with the remand orders." Stegall v. West, 11 Vet. App. 268, 271 (1998). As such, compliance with the terms of the remand is necessary prior to further appellate review, and if not, "the Board itself errs in failing to ensure compliance." Id. The Board notes the post-remand brief submitted by the Veteran's representative in which it is asserted that the December 2011 VA examination is inadequate because the examiner did not specifically address the Board's instructions to address whether the Veteran's lunate replacement with silicone prosthesis was considered to be a prosthetic replacement of the wrist joint within the meaning of Diagnostic Code 5053. Additionally, the Veteran's most recent VA examination is nearly two years old and would be older still once this case returns from remand status. Therefore, the Board finds it necessary to afford the Veteran another VA medical examination. Additionally, in a January 2007 statement, the Veteran stated that he was self-employed and performing landscaping and odd jobs that required him to use hand tools; the Veteran stated that his disability forced him to turn down jobs that he normally otherwise would have been able to perform. The Veteran indicated that he reported to the May 2006 VA examiner that he was unable to do the work he previously performed due to his wrist disability. In an August 2011 statement, the Veteran indicated that he has difficulty operating/manipulating hand tools such as can openers, computer keyboards, or any number of commonly used tools like pliers, wrenches, hammers, or screwdrivers due to his right wrist disability. In December 2011, a VA examiner stated that the Veteran's wrist condition did not impact his ability to work. The December 2011 VA examiner indicated that the Veteran was not currently working, but he was in school to become a teacher. The examiner also noted that if the Veteran had to use the computer a great deal then he would have more pain and numbness; it is also noted that the Veteran feels cramping in his forearm from tension on the wrist if typing. As the evidence of record suggests that the Veteran has employment limitations due to his right wrist disability, the Board finds that a claim of entitlement to a TDIU has been raised. Rice v. Shinseki, 22 Vet. App. 447, 453-455 (2009). On remand, the RO/AMC must send the Veteran a letter that complies with 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, and 38 C.F.R. §§ 3.102, 3.159, 3.326 (2012), regarding his claim for entitlement to a TDIU. In addition, the Veteran should be asked to complete a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, to obtain relevant employment information and to authorize VA to contact his employer or former employers for additional information regarding his employment. Furthermore, the Veteran should be asked to submit copies of his federal income tax returns for the years 2010, 2011, and 2012, to determine whether his earned annual income exceeded the Bureau of the Census's poverty threshold. The Court has held that in the case of a claim for a TDIU, the duty to assist requires that VA obtain an examination that includes an opinion on what effect a Veteran's service-connected disability has on his ability to work. Friscia v. Brown, 7 Vet. App. 294, 297 (1994). Although the December 2011 examination, as indicated above, provides a discussion of the effects the Veteran's right wrist disability has on his ability to work, no opinion has been rendered regarding whether the Veteran's combined service-connected impairments render him unemployable. Accordingly, the case is REMANDED for the following action: 1. Send the Veteran an updated notice under 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 and 38 C.F.R. §§ 3.102, 3.159, 3.326 (2012), that advises him about what is needed to substantiate a claim for a TDIU. In addition, ask the Veteran to complete a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, to obtain relevant employment information and to authorize VA to contact his employer or former employers for additional information regarding his employment. Furthermore, ask the Veteran to submit copies of his federal income tax returns for the years 2010, 2011, and 2012, to determine whether his earned annual income exceeded the Bureau of the Census's poverty threshold. 2. After all available records and/or responses have been associated with the claims file, the RO should schedule the Veteran for a VA joints examination. The Veteran's entire claims file (to include a complete copy of this REMAND) should be forwarded to an appropriate VA medical specialist for the purpose of determining the current severity and extent of the Veteran's service-connected right wrist disability. All indicated testing should be carried out and the results recited in the examination report. The examiner should identify all current right wrist symptoms and their severity. The results of range of motion testing should be reported. The examiner should identify any objective evidence of pain and assess the extent of any pain. The extent of any incoordination, weakened movement, and excess fatigability on use should be described. To the extent possible, the functional impairment due to incoordination, weakened movement, and excess fatigability should be assessed in terms of additional degrees of limitation of motion. Specifically, the examiner should indicate the point at which pain or any other factor limits the range of motion of the right wrist. The examiner should also specifically address whether the April 1985 lunate replacement with a silicone prosthesis constituted a "prosthetic replacement of the wrist joint" as the term is used in Diagnostic Code 5053. The examiner should indicate whether the Veteran's right hand function has been limited due to his service-connected right wrist disability. The examiner should address whether the medical evidence of record, in light of the April 1985 lunate replacement and the December 2005 operational report for the proximal carpectomy with bone grafting (showing removal of two silicone cysts from the distal radius and excision of the proximal row, scaphoid, lunate, triquetral, and partial excision of the ulna), indicates any of the following: a. In regards to the ulna, is there nonunion in the lower half or malunion with bad alignment? b. In regards to the radius, is there nonunion in the lower half with false movement or malunion with bad alignment? c. Limitation of pronation or supination? The examiner should identify (to include identification of the nerves involved) and fully discuss the neurological symptoms, if any, that are associated with the Veteran's service-connected right wrist disability or the surgical treatment thereof. The examiner should fully discuss the severity of any identified neurological symptoms associated with the Veteran's service-connected right wrist disability and the functional impact. Any associated neurological impairments identified should be characterized as mild, moderate, or severe. The examiner should opine as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's service-connected disabilities would, in combination, preclude him from securing and following substantially gainful employment for which his education and occupational experience otherwise qualify him. A discussion of the complete rationale for all opinions expressed should be included in the examination report, to include reference to pertinent evidence where appropriate. 3. The case should then be reviewed on the basis of additional evidence. If the benefit sought is not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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). _________________________________________________ MICHAEL MARTIN 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).