Citation Nr: 1338217 Decision Date: 11/21/13 Archive Date: 12/06/13 DOCKET NO. 10-08 198A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to a disability rating in excess of 10 percent for the service-connected right navicular fracture residuals with bone graft and status post carpal tunnel release. 2. Entitlement to a total disability rating for compensation purposes based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Donohue, Counsel INTRODUCTION The Veteran served on active duty from August 1963 to July 1967 and from November 1967 to March 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an August 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. 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 For the following reasons, the Board finds that the Veteran's appeal must be remanded to ensure that he is accorded full compliance with the statutory duty to assist. The Veteran was afforded a VA examination to determine the severity of his right wrist disability in May 2010. During this examination, the Veteran complained of stiffness, numbness and tingling in his right thumb and first finger. While he was able to identify pinprick and light touch sensations in his right hand, first finger, and thumb, the examination report noted that he had diminished grip strength in his right hand and muscle weakness in multiple extremities. Notwithstanding the findings of diminished grip strength and muscle weakness in multiple extremities, the VA examiner noted that there was no objective evidence of radiculopathy. The Board also notes that the examiner did not comment on the Veteran's non service-connected alcohol neuropathy. Upon review, the record is unclear whether the Veteran's subjective complaints of numbness, tingling and stiffness or the objective findings of muscle weakness and diminished grip strength represent a symptom of his service-connected right navicular fracture residuals, status post carpal tunnel release, or are associated with a separate neurological disability, to include his nonservice-connected alcohol radiculopathy. In this capacity, the Board is cognizant that the RO denied service connection for right thumb and index finger numbness in a June 2010 decision, in part, due to the lack of a diagnosed disability. As noted, however, the record is unclear whether the Veteran's complaints are a symptom of his service-connected disability or the result of a separate neurological disability. This is a medical question which cannot be answered by the Board. See Colvin v. Derwinski, 1 Vet.App. 191, 175 (1999) (the Board is prohibited from exercising its own independent judgment to resolve medical questions). This question must be answered by an appropriately qualified medical professional. See McLendon v. Nicholson, 20 Vet.App. 79 (2006); Charles v. Principi, 16 Vet.App. 370 (2002); see also 38 C.F.R. § 3.159(c)(4) (2013) (a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim). In addition, while the record contains a VCAA notice letter that was mailed to the Veteran in May 2009, this letter was sent in connection with a prior claim that was adjudicated by the RO in June 2009. The Veteran did not appeal this decision and the record indicates that he has not been sent an appropriate VCAA notice letter following his July 2009 claim. This must be accomplished. Finally, the United States Court of Appeals for Veterans Claims has held that, if the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel to that claim for an increased rating is whether a total rating based on individual unemployability (TDIU) as a result of that disability is warranted. Rice v. Shinseki, 22 Vet. App. 447 (2009). In this case, during the Appeal period, the Veteran reported that he could no longer work as an electrician due to his right wrist disability. See the May 2009 VA examination. Therefore, the RO/AMC should develop a claim for TDIU in accordance with Rice v. Shinseki, 22 Vet.App. 447 (2009). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC must assure that all notice and development required by VCAA has been accomplished, to include providing the Veteran with a VCAA notice letter which informs him of what the evidence must show to establish an increased rating for the service-connected right navicular fracture residuals with bone graft, status post carpal tunnel release. This letter must also inform the Veteran of his, and VA's respective duties for obtaining evidence. 2. The RO/AMC should schedule the Veteran for a VA examination to determine the extent and severity of his service-connected right navicular fracture residuals with bone graft, status post carpal tunnel release. The claims folder should be made available to the examiner for review in conjunction with the examination. The report of examination should contain a detailed account of all manifestations of the service-connected right wrist disability found to be present. The examiner is asked to comment on whether the Veteran's neurological complaints of numbness in his right thumb and first finger represent a symptom of his service-connected right navicular fracture residuals with bone graft and status post carpal tunnel release, or are the result of a separate disability. If these complaints or symptoms are determined to be a component of the Veteran's service-connected disability, the examiner should identify which nerve(s) have been impacted by the Veteran's service-connected disability. 3. The RO/AMC must ensure that all VCAA notice obligations are satisfied concerning the claim for TDIU and adjudicate the claim. If deemed necessary, the RO/AMC should obtain a VA opinion on the question of whether it is at least as likely as not that the Veteran is unable to obtain and maintain substantially gainful employment as a result of his service-connected disabilities. 4. After undertaking all indicated development, the RO/AMC should readjudicate the issues on appeal in light of all the evidence of record. If any benefit sought on appeal remains denied, the RO should provide the Veteran with a fully responsive SSOC and afford him a reasonable opportunity for response. 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 or by the Court 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). _________________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. 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).