Citation Nr: 1342831 Decision Date: 12/26/13 Archive Date: 01/07/14 DOCKET NO. 10-26 400 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an initial compensable disability rating for residuals of a fracture of the fifth metacarpal of the right hand. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. McPhaull, Counsel INTRODUCTION The Veteran had active service from September 1986 to March 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision by the Department of Veterans Affairs (VA), Regional Office (RO), in St. Petersburg, Florida, that granted service connection for residuals of a fracture of the fifth metacarpal of the right hand and assigned an initial noncompensable disability rating effective September 20, 2007. The Veteran expressed disagreement with the initial disability rating that was assigned and perfected a substantive appeal. On the Veteran's May 2010 Appeal To Board Of Veterans' Appeals (VA Form 9), he did not indicate whether he wanted a hearing before a Veterans Law Judge of the Board. In a June 2010 letter, the RO informed the Veteran that he did not specify if he wanted a hearing; and, if he did want a hearing to fill out the enclosed optional hearing form. The Veteran did not respond to the letter. Notably, the letter was sent to the Veteran's correct address of record, and it has not been returned as undeliverable. As such, the Board finds that the Veteran does not wish to have a Board hearing. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals that a November 2013 Appellant's Brief has been submitted on behalf of the Veteran by his representative. This has been considered by the Board in adjudicating this matter. The remaining documents in the Virtual VA paperless claims file 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 RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if any action on his part is required. REMAND Unfortunately, a remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. VA has a duty to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a) (West 2002 & Supp. 2013); 38 C.F.R. § 3.159(c), (d) (2013). A review of the Veteran's claims file reveals that his most recent VA examination regarding the residuals of a fracture of the fifth metacarpal of the right hand was in April 2008. In the May 2010 VA Form 9, the Veteran indicated that he was experiencing increased symptomatology of the right hand. When a claimant alleges that a service-connected disability has worsened since the last examination, a new examination may be required to evaluate the current degree of impairment. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also Allday v. Brown, 7 Vet. App. 517, 526 (1995) (where the record does not adequately reveal current state of claimant's disability, fulfillment of statutory duty to assist requires a contemporaneous medical examination - particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since the previous examination); Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (the Board should have ordered a contemporaneous examination of the Veteran because a 23-month old examination was too remote in time to adequately support the decision in an appeal for an increased rating). Therefore, the Board finds that the Veteran should be scheduled for a new VA examination to determine the current severity of his service-connected residuals of a fracture of the fifth metacarpal of the right hand. Finally, as this matter is being remanded for the reasons set forth above, any additional VA treatment records of the Veteran for his asserted disability should also be obtained. See 38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(b); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC shall take appropriate steps to contact the Veteran and request that he identify all VA and non-VA health care providers, other than those already associated with the Veteran's claims file, that have treated him since service for his claimed disabilities. This shall specifically include updated treatment records from VA. The aid of the Veteran in securing these records, to include providing necessary authorization(s), should be enlisted, as needed. If any requested records are not available, or if the search for any such records otherwise yields negative results, that fact should clearly be documented in the claims file, and the Veteran informed in writing. The Veteran may submit medical records directly to VA. 2. Thereafter, the RO/AMC shall schedule the Veteran for a VA examination to determine the current nature and severity of his residuals of a fracture of the fifth metacarpal of the right hand. The claims file must be made available to the examiner, and the examiner should include in the examination report discussion of the Veteran's medical history and assertions. All tests deemed necessary shall be conducted, including X-rays, and the results reported in detail. The VA examiner is directed to conduct range of motion testing and provide commentary regarding symptoms including painful motion, functional loss due to pain, excess fatigability, weakness, and additional disability during flare-ups. Furthermore, any additional loss of motion or function (decreased or abnormal excursion, strength, speed, coordination, or endurance) with repetitive movement must be noted. The examiner shall inquire as to periods of flare-up, and note the frequency of duration of any such flare-ups. The examiner must also estimate the additional loss of function, expressed in degrees of motion, during such flare-ups, to the extent possible. The VA examiner must comment on how and to what extent these manifestations affect the Veteran. If the severity of these manifestations cannot be quantified, the examiner must so indicate and fully explains the reasons therefor. The examiner's findings must be stated in terms conforming to the applicable rating criteria. Massey v. Brown, 7 Vet. App. 204 (1994). The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports of symptomatology, he or she must provide a reason for doing so. The examiner is also asked to comment on the impact of the claimed increase in severity of the Veteran's disability, if any, on his employment and activities of daily life. A complete rationale for any opinion expressed shall be provided. 3. The RO/AMC will then review the Veteran's claims file and ensure that the foregoing development actions have been conducted and completed in full, and that no other notification or development action, in addition to those directed above, is required. If further action is required, it should be undertaken prior to further claims adjudication. 4. The RO/AMC will then readjudicate the Veteran's claim. If the benefit sought on appeal remains denied, the Veteran and his representative shall be provided with a Supplemental Statement of the Case. An appropriate period of time should be allowed for response. Thereafter, if appropriate, the case is to be returned to the Board, following applicable appellate procedure. The Veteran need take no action until he is so informed. He 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). The purposes of this remand are to obtain additional information and comply with all due process considerations. No inference should be drawn regarding the final disposition of this claim as a result of this action. This claim must be afforded expeditious treatment. Claims 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. 2013). _________________________________________________ DEMETRIOS G. ORFANOUDIS Acting 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).