Citation Nr: 1334998 Decision Date: 11/01/13 Archive Date: 11/13/13 DOCKET NO. 08-36 258 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to an evaluation in excess of 10 percent for the service-connected chronic rotary subluxation of the scaphoid, left wrist (hereinafter "left wrist disability"). WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. L. Wallin, Counsel INTRODUCTION The Veteran served on active duty from May 1977 to May 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. The Veteran presented testimony before the Board in July 2013. A transcript of the hearing has been obtained. The Veteran has raised claims of entitlement to service connection for posttraumatic stress disorder and depression. They have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND Further development is necessary prior to a merits analysis of the Veteran's claim. The Veteran contends that his left wrist disability has worsened in severity. Specifically, he asserts that the disability is productive of pain and loss of function. He also claimed that the disability has interfered with his employability. See July 2013 Hearing Transcript. The last VA examination was in January 2010, over three years ago. The Board cannot ascertain to what extent the Veteran's left wrist disability has increased in severity, if at all, without a new VA examination. The Board is not free to substitute its own judgment for that of such an expert. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Further, where there is evidence of a material change in the Veteran's condition or as in the instant case, when the Veteran asserts that the service-connected disability in question has undergone an increase in severity since the time of his last VA examination, the prior VA examination report may be inadequate for rating purposes and a new VA examination is required. 38 C.F.R. § 3.327(a); See Snuffer v. Gober, 10 Vet. App. 400, 402-03 (1997). A review of the record shows the last VA outpatient treatment records associated with the claims folder are dated in March 2011. The Veteran testified that he continued to receive treatment at the Fresno VA Medical Center (VAMC). Any missing and/or ongoing VA medical treatment records pertinent to the issue must be obtained upon Remand. 38 C.F.R. § 3.159(c)(2). Upon Remand, the RO should also clarify representation. The Veteran executed VA Form 21-22, Appointment of Veterans Service Organization as Claimant's Representative, in favor of Veterans of Foreign Wars of the United States (VFW) in March 2013. He was previously represented by Marine Corps League. VFW indicated in September 2013 that they were unable to accept representation of the Veteran as the substantive appeal had already been filed. The Veteran should be afforded the opportunity to elect new representation. The RO should ensure that all due process requirements are met. The RO should also give the Veteran another opportunity to present information and/or evidence pertinent to the claim on appeal. 38 U.S.C.A. § 5103A (b) (West 2002). Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and inform him that VFW is unable to accept representation in the current appeal. Clarify whether he would like to appoint a new representative. If the Veteran elects new representation, the representative must be given the opportunity to complete VA Form 646, Statement of Accredited Representative in Appealed Case. 2. Take all indicated action in order to obtain copies of any VA clinical records not on file pertaining to treatment of the left wrist disability since March 2011. All records and/or responses received should be associated with the claims file. 3. After completion of the foregoing, schedule the Veteran for the appropriate VA examination. The Veteran's entire claims file (i.e. the paper claims file and any medical records contained in Virtual VA, Veterans Benefits Management System (VBMS), CAPRI, and AMIE) must be available for review by the examiner. If the examiner does not have access to Virtual VA or VBMS, any relevant treatment records in Virtual VA or VBMS that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. All indicated tests or studies must be completed. The examiner should describe all findings in detail. A. Examination findings pertinent to the left wrist disability should be reported to allow for application of VA rating criteria for musculoskeletal disabilities of the wrist. B. The examiner must indicate whether pain causes effective functional ankylosis of the left wrist. (Note: the Veteran contends that during cold weather pain is so severe as to render his wrist frozen). C. The examiner must state whether mild peripheral neuropathy and/or superimposed left carpal tunnel syndrome are related to the left wrist disability. Note: in answering this question, the examiner must make specific reference to the April 2010 electromyography consultation findings. D. The examiner must discuss the functional limitations, if any, associated with, and expected effect on employment resulting from the Veteran's service connected left wrist disability alone (not including the effects of any non-service connected disabilities). Note: if the examiner concludes that there is insufficient information to provide an etiology opinion without resorting to mere speculation, the examiner should state whether the inability to provide a definitive opinion was due to a need for further information (please identify) or because the limits of medical knowledge had been exhausted regarding the etiology of the claimed conditions. See Jones v. Shinseki, 23 Vet. App. 382 (2010). 4. In the interest of avoiding further remand, the RO should ensure that the requested actions have been accomplished (to the extent possible) in compliance with this REMAND. 5. After completing the requested actions, and any additional notification and/or development deemed warranted, the RO should readjudicate the issue in light of all evidence of record and should consider whether a total rating for compensation based on individual unemployability (TDIU) is warranted. If any benefit sought on appeal remains denied, the RO must furnish to the Veteran and his representative, if any, with an appropriate supplemental statement of the case and afford a reasonable opportunity for response. The Veteran 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). _________________________________________________ MILO H. HAWLEY 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).