Citation Nr: 1410105 Decision Date: 03/12/14 Archive Date: 03/20/14 DOCKET NO. 10-48 353 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to an initial compensable rating for residuals of fracture, right (dominant) fifth metacarpal. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Bordewyk, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1966 to December 1969. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which granted service connection for residuals of fracture, right fifth metacarpal, with a noncompensable rating assigned, effective November 30, 2009. The Veteran provided testimony during a hearing before the undersigned at the RO in May 2012. A transcript is of record. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Veteran reported during the May 2012 Board hearing that his right fifth finger disability had worsened since the last VA examination in February 2010. A Veteran is entitled to a new VA examination where there is evidence that the condition has worsened since the last examination. Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). In addition, a Veteran is competent to provide an opinion that his disability has worsened. Proscelle v. Derwinski, 2 Vet. App. 629 (1992). In a December 2010 VA Form 9, the Veteran reported that his right fifth finger disability flares up during work to the point that it is "unusable." Therefore, upon remand, the Board requests that the VA examiner specifically address the issue of flare-up of symptoms. The record contains a June 2010 letter from the Veteran's private primary care provider and indicates that he has treated him for his right hand disability; however, relevant records from this physician are not of record. VA has a duty to obtain relevant records of private treatment. 38 U.S.C.A. § 5103A(b) (West 2002); Massey v. Brown, 7 Vet. App. 204 (1994). Finally, the Veteran reported that he received right hand treatment with the VA, specifically the Zanesville CBOC. Records of consistent VA treatment are not in the claims file and the last VA treatment of record is dated in November 2010. VA has a duty to obtain records of VA treatment. See Bell v. Derwinski, 2 Vet. App. 611 (1992). Would the right index finger at least as likely as not (probability of 50 percent or more) be equally well served by an amputation at the affected joint? If so, please identify the affected joint. Also, describe the actual remaining function of the right index finger for the acts of grasping, manipulation, etc. Accordingly, the case is REMANDED for the following action: 1. Obtain all outstanding VA medical records, including but not limited to treatment with Dr. Foster at the Zanesville CBOC, and associate them with the claims file or Virtual VA. All efforts to obtain these records must be documented in the claims file. Such efforts should continue until they are obtained, it is reasonably certain that they do not exist, or that further efforts would be futile. 2. Ask the Veteran to provide releases authorizing VA to obtain all records of private treatment, including with Dr. P.K., his primary care provider. If the Veteran fails to complete necessary authorizations, tell him that he may obtain and submit the records himself. If any records cannot be obtained, inform the Veteran of this fact, tell him what efforts were made to obtain the records, and advise him of any additional development that will be undertaken. 3. Once the above-requested development is completed, provide the Veteran with a VA examination to determine the current severity of his right fifth finger disability. The examiner should review the claims folder, a copy of this remand, and the evidence in the virtual file(s). All indicated testing should be conducted. The examiner should record all subjective and objective manifestations of the right fifth finger disability, including all functional effects, and whether there is ankylosis of any kind. The examiner must inquire as to periods of flare-up and note the frequency and duration of any such flare-ups for each joint affected by flare-ups. The examiner should opine whether the right fifth finger at least as likely as not (probability of 50 percent or more) would be equally well served by an amputation at the affected joint. If so, please identify the affected joint. Also, describe the actual remaining function of the right fifth finger for the acts of grasping, manipulation, etc. The examiner must specifically consider the functional limitation during flare-ups in providing this opinion. This may require a certain degree of conjecture on the examiner's part, but is required for rating this disability. The examiner should report all neurologic impairment resulting from the right fifth finger disability and indicate which nerve is involved. The examiner should also opine as to the severity of that impairment, in terms of mild, moderate, or severe. If there is neurologic impairment of the lower extremities that is not related to the service-connected disability, the examiner should so report. Thereafter, if the Veteran is currently unemployed, the examiner should opine as to whether, without regard to the Veteran's age or the impact of any nonservice-connected disabilities, it is at least as likely as not (50 percent or greater probability) that the Veteran's service-connected disabilities, alone or in combination, render him unable to secure or follow a substantially gainful occupation for which his education and experience would otherwise qualify him. The examiner should set forth all examination findings, along with a complete rationale for any opinions and conclusions expressed. (The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically considered in formulating any opinions. If the examiner rejects the Veteran's reports, the examiner must provide a reason for doing so.) 4. The agency of original jurisdiction (AOJ) should review the examination report to ensure that it contains the information, opinions, and rationales requested in this remand. 5. After completion of all requested and necessary development, the AOJ should review the record in light of the new evidence obtained. If any benefit for which there is a perfected appeal remains denied, the Veteran and his representative should be furnished with a supplemental statement of the case. Once they are afforded an opportunity to respond, the claim should be returned to the Board for appellate review. The appellant 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. 2013). _________________________________________________ J. A. MARKEY 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).