Citation Nr: 1331959 Decision Date: 10/03/13 Archive Date: 10/07/13 DOCKET NO. 07-34 927 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for a low back disability. 2. Entitlement to a rating in excess of 10 percent for residuals of a fracture of the fourth metacarpal of the right hand, status post open reduction, internal fixation with a small neuroma. REPRESENTATION Appellant represented by: Eric A. Gang, Esquire ATTORNEY FOR THE BOARD B. Elwood, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1983 to November 1987. He also had 3 months and 25 days of prior active service. These matters initially came before the Board of Veterans' Appeals (Board) from a June 2007 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO) in San Juan, Puerto, Rico. In that decision, the RO denied entitlement to service connection for a back disability and denied entitlement to a rating in excess of 10 percent for residuals of a fracture of the fourth metacarpal of the right hand, status post open reduction, internal fixation with a small neuroma. In April 2012, the Board denied the claims of service connection for a low back disability and for an increased rating for the service-connected right hand disability. The Board also granted a separate 10 percent rating for a painful surgical scar over the 4th metacarpal of the right hand. The Veteran appealed the Board's denials to the United States Court of Appeals for Veterans Claims (Court). In November 2012, the Court set aside the Board's April 2012 decision, in part, and remanded the case for readjudication in compliance with directives specified in a November 2012 Joint Motion filed by counsel for the Veteran and VA. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claims. The documents in this file have been reviewed and are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the Veteran if further action is required. REMAND The Veteran was afforded a VA examination in February 2010 to assess the severity of his service-connected right hand disability. The examination report indicates that he was right hand dominant and that he had lost dexterity, strength, and range of motion of the hand. Muscle strength associated with pushing was 3/5, he was unable to twist, he was very limited in his ability to write, and he was unable to open and close the hand without resistance due to pain and limited range of motion. The physician who conducted the examination concluded that there was very limited range of motion of the right hand and that the hand was "practically . . . non functional." The Veteran is currently receiving the maximum schedular rating for his service-connected disability of the fourth metacarpal of the right hand based solely on impairment of that finger. However, the February 2010 VA examination report indicates that he may be entitled to a rating under 38 C.F.R. § 4.71a, DC 5125 (2013) for loss of use of the right hand. A new examination is needed to obtain an opinion as to whether the Veteran's service-connected right hand disability results in loss of use of the hand. Moreover, the Veterans Claims Assistance Act of 2000 (VCAA) requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claims. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c), (d) (2013). The VCAA's duty to assist includes a duty to help a claimant obtain records relevant to his claims, whether or not the records are in Federal custody. 38 C.F.R. § 3.159(c)(4). The Veteran contends that he was denied entry into the Puerto Rico Air National Guard after his active duty service because an examination with the Military Entrance Processing Station revealed back problems. The parties to the Joint Motion have agreed that efforts need to be undertaken to attempt to obtain service treatment records pertaining to the Veteran's examination for entrance into the Puerto Rico Air National Guard. Hence, a remand is also necessary to attempt to obtain such records. Accordingly, the case is REMANDED for the following action: 1. Contact the National Personnel Records Center, the Puerto Rico Air National Guard, the Military Entrance Processing Station, and any other appropriate source and request all available service treatment records pertaining to the Veteran's Puerto Rico Air National Guard service (including any records pertaining to an entrance examination following his active duty service). If the Veteran's service treatment records pertaining to his Air National Guard service cannot be obtained, take all necessary steps to search alternate sources of records, including following the procedures outlined in VA adjudication manual, M21-1MR. Specifically request records of any relevant treatment reported by the Veteran. All efforts to obtain these records must be documented in the claims file. Such efforts shall continue until the records are obtained or it is reasonably certain that they do not exist or that further efforts to obtain them would be futile. 2. If any of the Veteran's service treatment records pertaining to his Air National Guard service are missing or are otherwise unavailable, this fact shall also be documented and a formal finding of unavailability shall be made with notice to the Veteran and his representative. 3. Schedule the Veteran for a VA examination to evaluate the current severity of his service-connected right hand disability. All indicated tests and studies shall be conducted. The claims folder, including this remand and any relevant records contained in the Virtual VA system, along with any records obtained pursuant to this remand, must be sent to the examiner for review. The ranges of motion of the fingers of the right hand shall be reported in degrees. The examiner shall also specify what, if any, additional range-of-motion loss (in degrees) is due to any weakened movement, excess fatigability, incoordination, flare ups, and/or pain. The examiner shall report whether there is ankylosis of any finger of the right hand. If ankylosis is present, the examiner shall specifically identify which joints are involved. The examiner shall also specify any nerves affected by the service-connected right hand disability and provide an opinion as to the severity of any associated paralysis, neuritis, or neuralgia. The examiner shall also report the nature and severity of any scars associated with the service-connected right hand disability, to include whether any scar causes any loss of function. Each scar size, and whether any scar is superficial, deep, nonlinear, unstable, or painful shall also be noted. The examiner shall also indicate whether it is at least as likely as not (50 percent probability or more) that the Veteran's service-connected right hand disability results in loss of use of the right hand (i.e. the Veteran would be equally well served by amputation with prostheses at the site of election). The examiner must provide reasons for each opinion given. 4. If a benefit sought on appeal remains denied, the agency of original jurisdiction (AOJ) shall issue a supplemental statement of the case. After the Veteran is given an opportunity to respond, the case shall be returned to the Board. No action is required of the Veteran until he is notified by the AOJ; however, the Veteran is advised that failure to report for any scheduled examination may result in the denial of his claims. 38 C.F.R. § 3.655 (2013). The Veteran has the right to submit additional evidence and argument on the 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). _________________________________________________ THOMAS J. DANNAHER 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) (2013).