Citation Nr: 1442016 Decision Date: 09/19/14 Archive Date: 09/30/14 DOCKET NO. 04-41 420 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to a compensable disability rating for the post-operative residuals of right hand surgery with multiple lacerations, second joint, right thumb, and status post excision of a ganglion cyst from the right thumb. 2. Entitlement to a compensable disability rating for the post-operative residuals of right hand surgery, third joint, right little finger. 3. Entitlement to noncompensable rating before June 2, 2003, and a rating in excess of 10 percent since June 2, 2003 for arthritis of the right thumb. 4. Entitlement to total disability based upon individual unemployability (TDIU). REPRESENTATION The Veteran represented by: Neil Riley, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Russell Veldenz, Counsel INTRODUCTION The Veteran served on active duty from December 1971 to July 1977. This matter is before the Board of Veterans' Appeals (Board) on appeal of a March 2003 rating decision by the Montgomery, Alabama Department of Veterans Affairs (VA) Regional Office (RO). In January 2014, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is in the record. In November 2007, February 2009, and February 2010, the Board remanded the case to the RO for additional development. As the requested development has been completed, no further action is necessary to comply with the Board's remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). Following the issuance of the supplemental statement of the case in September 2013, the Veteran submitted additional evidence in support of his claims and waived the right to have the evidence initially considered by the RO. 38 C.F.R. § 20.1304(c). At his hearing, the Veteran testified that physicians have told him that his right ulnar neuropathy and resulting right elbow surgeries are due to his service connected disabilities of the right thumb and right little finger. The issue of service connection for residuals of right ulnar neuropathy surgeries, to include as secondarily caused by service connected disabilities of the right thumb and right little finger has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2013). The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND With apologies to the Veteran, this case must be remanded again. In July 2014, the Veteran submitted a report by a private physician, Dr. Zaremba, who determined that the Veteran has a severe injury to Muscle Groups VII, VIII, and IX. Dr. Zaremba saw the Veteran one time to determine the severity of the Veteran's disabilities. His report, however, does not explain how the muscle groups became impaired and which disability (the right thumb arthritis, the right thumb post-operative residuals, the right little finger disability or nonservice- connected disabilities such as the Veteran's carpal tunnel syndrome or ulnar neuropathy) caused the muscle impairment. Dr. Zaremba did record that the Veteran had difficulty with gripping and approximating the right thumb to the right fingers. At the last VA examination in in January 2008, the examiner did not report any limitation or disability of Muscle Groups VII, VIII, and IX. He reported that the Veteran was able to oppose his thumb to the fingers and there was no gap between the fingers and the transverse crease of the hand. The differences between the VA examination in January 2008 and Dr. Zaremba suggests one or more of the Veteran's service connected disabilities worsened. The Board therefore concludes that the Veteran should be afforded a new VA examination to determine the current nature, manifestations and severity of his right thumb arthritis, right thumb surgery residuals, and right little disability. See 38 C.F.R. § 3.327; Green v. Derwinski, 1 Vet. App. 121 (1991) (holding that VA's duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination). In addition, neither the VA examination nor Dr. Zaremba's report distinguished between the manifestations of the Veteran's service connected disabilities and other disabilities which are not service connected but may affect the function of the right hand. The Veteran has been diagnosed with right shoulder impingement syndrome, right ulnar neuropathy resulting in two surgeries, right carpal tunnel syndrome, also resulting in two surgeries, and right cubital tunnel syndrome. None of these diagnoses are service connected. The Board must consider all of the Veteran disabilities, and if so, which ones related to service are causing him limitation of function as opposed to those non-service connected disabilities. The Board therefore finds the report inadequate and the Veteran should be provided a second VA examination to provide the missing information, that is, the manifestations and loss of function are caused by the service connected disabilities. See 38 U.S.C.A. § 5103A (d) (West 2002); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). A VA examination and report distinguishing which symptoms belong to which disabilities would be helpful to the Board. The Board can then determine the rating for all service-connected right hand disabilities based on their specific symptoms and impairments, but without assigning evaluations for the same symptoms under more than one code or entirely attributable to a nonservice-connected disability. See 38 C.F.R. §§ 4.14, 4.125. As to TDIU, the Veteran has also indicated he is now unemployed so the record raises the issue of total disability based upon individual unemployability. The Board notes that TDIU was denied in a rating decision issued by the RO in July 2010. The Veteran never appealed from that decision. The Court of Appeals for Veterans' Claims (the Court) has held that that a TDIU claim cannot be considered separate and apart from an increased rating claim. Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). Instead, the Court held that a TDIU claim is an attempt to obtain an appropriate rating for a service-connected disability. The Court further held that when evidence of unemployability is submitted at the same time that a veteran is appealing the rating assigned for a disability, the claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Id. Due to the finality of the July 21, 2010 unappealed rating decision which denied a TDIU, the rating period for consideration of the TDIU claim is from July 22, 2010, not the earlier date of receipt of the increased rating claims. The veteran's testimony at his hearing in January 2014 among other evidence in the file after the July 21, 2010 rating decision serves to re-raise the issue of entitlement to TDIU. The Veteran is service connected for right knee chondromalacia, currently rated at 20 percent, residuals of a left knee injury, currently rated at 20 percent, arthritis of the right thumb, currently rated at 10 percent, right knee degenerative arthrosis, currently rated at 10 percent, left knee degenerative arthrosis, currently rated at 10 percent, post-operative right thumb and little finger residuals, currently rated at zero percent, a cystic lesion of the right clavicle area, currently rated at zero percent, and bilateral onychomycosis, currently rated at zero percent. His total combined rating is at 60 percent. The Board recognizes that at first blush, the Veteran does not meet the schedular criteria for TDIU, see 38 C.F.R. § 4.16 (a). That section, for purposes of TDIU, allows all disabilities of single body system to be considered as one disability. In this case, all of the Veteran's disabilities are orthopedic in nature, and the Veteran therefore has "one" disability rated 60 percent for consideration of TDIU. Id. The record does not contain a current, adequate medical opinion, based upon a thorough review of the record, regarding whether the Veteran's service connected disabilities, but not in conjunction with his nonservice-connected disabilities, causes him to be unemployable, for VA purposes. Therefore, the Veteran shall be afforded a VA examination to determine whether he is entitled to a TDIU on a schedular basis. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with a VA orthopedic and neurological examination of the right hand. The claims file must be made available to the examiner in conjunction with the examination. All necessary testing, including electromyography (EMG) and a nerve conduction study (NCS), should be conducted. The rationale for all opinions should be provided. The examiner is asked to determine to determine the current level of impairment of 1). The right thumb arthritis; 2). The post-operative residuals of right hand surgery with multiple lacerations, second joint, right thumb, and status post excision of a ganglion cyst from the right thumb; and 3). The post-operative residuals of right hand surgery, third joint, right little finger. The examiner is asked to describe all current manifestations of the service-connected post-operative residuals of right hand surgery with multiple lacerations, second joint, right thumb, and third joint, right little finger, status post excision of a ganglion cyst from the right thumb, and right thumb arthritis. The examiner is asked to specifically address: a). To determine if there any scars that are painful or otherwise symptomatic. b). To measure any limitation of finger and thumb motion associated with the service-connected disabilities or report if there are no such limitations of finger motion. The examiner should note if repeated range of motion testing results in additional limitation of motion, or in functional loss, or there is weakened movement, excess fatigability, or incoordination attributable to any of the Veteran's right hand disabilities, expressed in terms of the degree of additional range of motion loss due to any weakened movement, excess fatigability, or incoordination. c). The examiner should report any ligament instability, recurrent subluxation, or locking, and, if so, its severity. d). The examiner should describe in detail all current manifestations associated with the Veteran's right thumb or right little finger disabilities, including whether there is any impairment to Muscle Groups VII, VIII, IX, or any other affected muscle group. If there is no impairment to any muscle group, this should be specifically noted. If there is any impairment to a muscle group, to specifically include Muscle Groups VII, VIII, IX, the examiner should indicate whether the residuals are best characterized as mild, moderate, moderately severe, or severe. The examiner should describe in detail the rationale for the assigned degree of severity. e). The examiner should describe in detail all current right neurological manifestations associated with the right thumb or right little finger disabilities, including the current level of impairment and to identify any organic changes, such as loss of reflexes, muscle atrophy, sensory disturbances, or constant pain; and whether the neurological impairment is wholly sensory or motor or mixed sensory and motor. If there is any neurological impairment, the examiner should indicate whether the neurological results are best characterized as mild, moderate, moderately severe, or severe. The examiner should describe in detail the rationale for the assigned degree of severity. f). The VA examiner is asked to clinically distinguish and set forth any manifestations of the Veteran's service-connected right thumb disabilities or right little finger disability from any other current disability affecting the right upper extremity to specifically include right ulnar neuropathy, right carpal tunnel syndrome, right cubital syndrome, and right shoulder impingement syndrome. If feasible, the VA examiner is asked to separately state the symptoms and the level of severity for each disability. The examiner is specifically asked to reconcile all diagnoses and findings with the report of Dr. Zaremba, the current examination, and the January 2008 VA examination. g). The examiner is also asked to assess the Veteran's ability to secure or follow a substantially gainful occupation solely on the basis of his service-connected disabilities and provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's service connected disabilities prevent him from securing or following a substantially gainful occupation. When offering the opinion, the examiner is instructed to ignore the effects of age or any non-service connected disabilities. A complete rationale must be provided for any opinion offered. 2. If the percentage requirements of 38 C.F.R. § 4.16 for TDIU are not met, the RO must refer the claim to the Director of Compensation for consideration of an extra-schedular rating. 3. After the development requested is completed, readjudicate the claims for increased ratings and adjudicate entitlement to TDIU after January 22, 2010. If any benefit sought remains denied, furnish the Veteran and his representative a supplemental statement of the case and a reasonable period to respond, and then return the case to the Board. 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). _________________________________________________ ROBERT C. SCHARNBERGER 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).