Citation Nr: 1330913 Decision Date: 09/25/13 Archive Date: 09/30/13 DOCKET NO. 10-39 807 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to an increased disability rating in excess of 10 percent for service-connected old healed fractures of the 3rd, 4th, and 5th fingers of the left hand and non conversion features prior to June 26, 2013, and a disability rating in excess of 20 percent since. REPRESENTATION Appellant represented by: Puerto Rico Public Advocate for Veterans Affairs ATTORNEY FOR THE BOARD A. Spector, Associate Counsel INTRODUCTION The Veteran had active military service from September 1950 to August 1952. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Commonwealth of Puerto Rico. The Veteran filed a notice of disagreement (NOD) with this determination in November 2009, and timely perfected his appeal in September 2010. In June 2013, the Board remanded the issue of an increased disability rating in excess of 10 percent for service-connected old healed fractures of the 3rd, 4th, and 5th fingers of the left hand and non conversion features for further examination. Regrettably, as outlined below, further development is necessary before the Board can proceed on the issues on appeal. In an August 2013 rating decision, the Appeals Management Center (AMC) increased the Veteran's disability rating for old healed fractures of the 3rd, 4th, and 5th fingers of the left hand and non conversion features to 20 percent, effective June 26, 2013. The Board notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file associated with the above claim. A review of the documents in such file reveals that there are additional VA treatment records. These records have been reviewed and considered by the Board. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is REMANDED to the RO via the AMC, in Washington, DC. VA will notify the appellant if further action is required. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). Pursuant to the Board's June 2013 remand instructions, the AMC was requested to schedule the Veteran for a VA examination to evaluate the current severity of his service-connected old healed fractures of the 3rd, 4th, and 5th fingers of the left hand and non conversion features. The Veteran was afforded a Hand and Finger Conditions VA examination in June 2013. Subsequently, the AMC ordered an independent medical opinion in July 2013 to determine if the Veteran should have undergone a VA nerve examination, as opposed to the recently completed musculoskeletal examination, to gain a more accurate picture of the Veteran's disability. In a separate opinion, the independent physician stated that according to the most recent C&P Hand and Finger Conditions Examination, dated June 26, 2013, the Veteran complained that he had dorsal hand pain with finger flexion and on cold days. The pain level was eight out of ten. The Veteran reported that he was taking medication for pain and wearing gloves in cold weather. He was waiting to see a physical therapist. The Veteran said that he also had left thumb pain and triggering (the left thumb has a popping sensation with opposition and extension, and tender at the MCP joint). He also complained of hand swelling. The independent physician concluded that it was his medical opinion that the Veteran's left hand disability, with current service connection for left 3rd, 4th, and 5th finger fractures with ulnar paralysis, would benefit from a Peripheral Nerve DBQ C&P examination, in addition to the recent Hand and Finger Conditions DBQ C&P examination. Other than noting the Veteran's left hand weakness and pain, the nerves of the hand are inadequately evaluated by the Veteran's recent C&P Hand and Finger Conditions Examination. The ulnar, median, and radial nerves would be evaluated by the Peripheral Nerves DBQ C&P examination. Alternatively, an EMB/NCV study of the upper extremities could be performed, but in the absence of muscle weakness, with only pain, paraesthesias and/or numbness, such a study could be unrevealing. In a July 2013 deferred rating decision, the AMC noted that the Veteran's claims file was reviewed and determined that it was not ready to rate. Specifically, the AMC pointed to the July 2013 independent medical opinion noting that the Veteran's June 2013 VA examination was inadequate for rating purposes, and a Peripheral Nerve VA examination should be ordered. However, it appears that the AMC did not schedule the Veteran for a subsequent peripheral nerve VA examination. Therefore, a remand is necessary in order to afford the Veteran a peripheral nerve VA examination to adequately evaluate the severity of his left hand condition. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 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/RO 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) The Veteran should be scheduled for a peripheral nerve VA examination to determine the current level of severity of his service-connected old healed fractures of the 3rd, 4th, and 5th fingers of the left hand and non conversion features, claimed as paralysis of the ulnar nerve. The VA examiner should thoroughly review the Veteran's claims file and a complete copy of this Remand in conjunction with the Veteran's examination and note this has been accomplished in the VA examination report. All necessary tests should be performed, to include EMB/NCV study of the upper extremities. All manifestations of the Veteran's old healed fractures of the 3rd, 4th, and 5th fingers of the left hand and non conversion features, claimed as paralysis of the ulnar nerve, should be set forth, and the examiner should report examination findings to allow for application of Diagnostic Code 8516. Specifically, the examiner state whether the Veteran's left hand symptoms are mild, moderate or severe. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 3) Thereafter, the AMC/RO must review the claims file to ensure that the foregoing requested development has been completed. In particular, review the requested medical opinion to ensure that it is responsive to and in compliance with the directives of this remand and if not, implement corrective procedures. See Stegall v. West, 11 Vet. App. 268 (1998). 4) Following the completion of the foregoing, and after undertaking any other development it deems necessary, the AMC should readjudicate the Veteran's claim. The AMC should then provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate period of time for response. Thereafter, the claims folder should be returned to the Board for further appellate review, if otherwise in order. 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). _________________________________________________ WAYNE M. BRAEUER 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).