Citation Nr: 1343057 Decision Date: 12/27/13 Archive Date: 01/07/14 DOCKET NO. 11-01 505 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to a compensable disability rating for status post flexion deformity with subluxation of the left fifth finger. ATTORNEY FOR THE BOARD J. All, Associate Counsel REMAND The Veteran had active service in the United States Army from April 1999 to August 2003. This case comes before the Board of Veterans' Appeals (Board) on appeal of a December 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. The Veteran's appeal was certified to the Board in March 2011. In September 2012, the RO issued a rating decision with respect to the same claim. The rating decision reflects that the RO received a "claim for benefits" in January 2011, which apparently included a duplicate claim for the increased evaluation already on appeal. In response to this claim, the RO scheduled a VA examination for the Veteran and sent a "request for examinations and exam protocols" to the Veteran and the United States Embassy in Kosovo in May and November 2011. (The Veteran worked in Kosovo as a civilian air traffic controller.) According to the rating decision, the Veteran failed to attend the VA examination and did not show good cause for his failure to do so. As a result, the RO denied the Veteran's claim, stating that the evidence of record did not show that the Veteran's left little finger disability had "increased in severity sufficiently to warrant a higher evaluation." Claims notes recorded in the VBMS electronic claims system also show that an examination with regard to the finger was apparently again requested of "VHA Kosovo" on November 21, 2013, with a suspense date of January 20, 2014. That the RO continued to develop the claim on appeal and issue a rating decision after certification is unusual, as a statement of the case and a supplemental statement of the case were previously issued, and the Board had taken jurisdiction over the claim. Further, none of the evidence cited by the RO in its September 2012 rating decision, save for the December 2009 rating decision on appeal, has been made available to the Board for review - neither physical nor electronic copies of this evidence were found in the files accessible by the Board. Without this evidence, the Board cannot assess the sufficiency of the notice provided to the Veteran of his VA examination. In light of this sequence of events, and to ensure full compliance with the requirements of due process, this case is remanded for further development prior to appellate review. Accordingly, the case is REMANDED for the following action: 1. Undertake appropriate action to verify the Veteran's current mailing address. The agency of original jurisdiction (AOJ) must document in the claims file all requests and responses in this regard. Special care must be taken to ensure that all correspondence is sent to the Veteran's current mailing address. 2. The AOJ should secure all records relied on in its adjudication of the claim in September 2012, including examination scheduling notices, and include them in the claims file. Additionally, the report of any examination conducted pursuant to a November 2013 request for examination should be obtained. 3. Thereafter, if an examination is not conducted pursuant to the November 2013 request or the report of any such examination is not obtainable, schedule the Veteran for a new VA examination to determine the current nature and severity of his service-connected left little finger disability. The entire claims file, to include any pertinent medical records contained in Virtual VA and VBMS, must be reviewed by the examiner in conjunction with the examination. (If the examiner does not have access to Virtual VA or VBMS, any relevant treatment records contained therein and not otherwise available must be printed and associated with the paper claims file for the examiner's review.) All indicated tests should be conducted, including x-rays, and all symptoms and residuals associated with the Veteran's service-connected left little finger disability should be described in detail. Specifically, the examiner should conduct a thorough examination of the Veteran's left little finger and identify all impairment found to be present. The examiner should report all current manifestations of the Veteran's left little finger disability and the extent to which any left little finger symptomatology affects the function of any other digits of the left hand or of the left hand as a whole. The examiner should also offer an opinion as to whether the residuals of the Veteran's injury in December 2008 should be considered part of his service-connected disability (i.e., whether the December 2008 injury resulted from his service-connected disability). The examiner should distinguish service-connected symptoms from those that are not service connected, if feasible. All opinions expressed should be accompanied by supporting rationale. 4. After the requested examination has been completed, the report should be reviewed to ensure that it complies with the directives of this remand. If an examination was conducted pursuant to the November 2013 request, ensure that it answers all questions posed by paragraph 3 above. If an examination report is deficient in any manner, it should be returned to the examiner for corrective action. 5. Following completion of the above, readjudicate the issue on appeal based upon all evidence received since the issuance of the SSOC in January 2011. If the benefit sought on appeal is not granted to the Veteran's satisfaction, another SSOC should be furnished to the Veteran. An appropriate period of time should be allowed for response before the case is returned to the Board. The Veteran 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 case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). ________________________________ MARK F. HALSEY 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 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).