Citation Nr: 1616129 Decision Date: 04/21/16 Archive Date: 05/04/16 DOCKET NO. 11-01 906 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manchester, New Hampshire THE ISSUES 1. Entitlement to an extraschedular rating for diabetes mellitus, type II (diabetes). 2. Entitlement to an extraschedular rating for residuals of fracture of the left middle finger (left middle finger). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. Zobrist, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from April 1966 to April 1969. These matters are before the Board of Veterans' Appeals (Board) on remand from the United States Court of Appeals for Veterans Claims (Court). They were originally before the Board on appeal from a May 2009 rating decision of the Manchester, New Hampshire, Department of Veterans Affairs (VA) Regional Office (RO) that continued a 10 percent rating for left middle finger disability and granted an increased 20 percent rating for diabetes. An interim April 2012 rating decision continued the 10 percent rating for left middle finger disability. In June 2014, another Veterans Law Judge (VLJ) denied the increased rating claims, to include on an extraschedular basis. (The matter of entitlement to TDIU, considered in accordance with Rice v. Shinseki, 22 Vet. App. 447 (2009), was remanded for additional development and was granted in a July 2015 rating decision; that matter is no longer in appellate status.) The Veteran appealed the June 2014 Board decision to the Court, resulting in an June 2015 Joint Motion for Remand (JMR) by the parties, in which the parties agreed that the Board had not considered the combined effects of the Veteran's diabetes and left middle finger disability when denying referral for extraschedular consideration. (The Board notes that the June 2014 Board decision was issued prior to the decision by the United States Court of Appeals for the Federal Circuit in Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014)). A June 2015 Court Order remanded the matter for compliance with the instructions in the JMR. (The parties agreed that the Veteran did not contest the schedular ratings assigned for his diabetes and left middle finger disability; the appeal as to those issues was dismissed in the June 2015 Court Order and is no longer before the Board). In July 2015, these matters were remanded for referral to VA's Director of Compensation Services for consideration of extraschedular ratings under 38 C.F.R. § 3.321(b)(1), to include application of the holding in Johnson. In December 2015, the Director provided an administrative decision denying extraschedular ratings. The case is now assigned to the undersigned. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action on his part is required. REMAND In March 2016 correspondence, the Veteran for the first time asserted (through his representative) that he has flare-ups of both his diabetes and left middle finger disability that interact with each other and cause additional disability not contemplated by the rating schedule or currently accounted for by separate disability ratings. (See Johnson, supra.) Specifically, he asserted that flare-ups of his left middle finger disability prevent him from making a fist (compare with September 2011 VA examination report, noting no flare-ups impacting function, and April 2009 VA examination report, noting ability to close fist securely) and that flare-ups of his diabetes cause blurred vision and hand cramps (compare with July 2013 VA examination report, noting peripheral neuropathy as the only recognized complication of diabetes and no impact on ability to work). While the Board regrets the additional delay, in light of the (new) allegation of worsening, another examination to assess the disabilities at issue (with respect to extraschedular ratings) is necessary. In addition, as it appears that the Veteran's disabilities have recently worsened, it is not clear that all relevant treatment records have been obtained and associated with his file. Records of ongoing treatment for a service-connected disability are clearly pertinent (and may be critical) evidence in a claim for increase (and VA records are constructively of record, and must be obtained for/associated with the record). Accordingly, the case is REMANDED for the following: 1. The AOJ should obtain copies of all records of VA treatment the Veteran has received for diabetes and left middle finger disability (that are not already associated with the record.) The AOJ should also ask him to provide releases for VA to obtain any pertinent private treatment records. The AOJ should secure complete records from the providers identified. If any records are unavailable the reason should be noted in the record, and the Veteran should be so notified. If he authorizes release of records, but the provider in question does not respond to AOJ's request, he should be advised that ultimately it is his responsibility to ensure that private records are received. 2. When the development requested above is completed, the AOJ should arrange for an orthopedic examination of the Veteran to determine the current severity of his service-connected left middle finger disability. The examiner must review the record in conjunction with the examination. Any indicated tests or studies should be completed. The studies conducted must include ranges of motion with notation of all further limitations due to pain, use, flare-ups, or other such factors. The examiner should respond to the following: Describe in detail all symptoms (to include noting the nature, severity and frequency) and associated functional limitations of the Veteran's service-connected left middle finger disability. Please differentiate (to the extent possible) between functional limitations related to the Veteran's service-connected left upper extremity peripheral neuropathy and non-service-connected peripheral vascular disease/left shoulder impingement disability and any orthopedic symptoms related to his left middle finger disability. The examiner should have available for review the rating schedule criteria for the disabilities in question, and opine whether the Veteran has any symptoms related to his service-connected left middle finger disability not encompassed by the schedular criteria. The examiner must address the Veteran's lay assertion that his left middle finger disability affects the functioning of his entire left hand (see November 2010 Decision Review Officer hearing transcript) and that he experiences flare-ups that prevent him from forming a fist (see March 2016 correspondence). The examiner should also discuss the expected impact of this service-connected disability on the Veteran's employability, to include consideration of whether the left middle finger disability, considered collectively with the other service-connected disabilities of record (to include posttraumatic stress disorder, diabetes, peripheral neuropathy of the left upper and bilateral lower extremities, and left hydrocele), presents an unusual disability picture. The examiner must explain the rationale for all opinions, citing to supporting clinical data/medical literature as appropriate. 3. The AOJ should also arrange for the Veteran to be examined by an appropriate physician to assess the current severity of his diabetes and its complications (other than peripheral neuropathy, which is separately service-connected). If specialty examinations are deemed appropriate, they should be arranged; he should specifically be afforded an ophthalmological examination to assess eye pathology/visual impairment due to diabetes. The examiner(s) should describe the manifestations, frequency, and severity of each of the service connected disabilities in detail, and comment on nature and severity of functional impairment associated with each. The examiner should have available for review the rating schedule criteria for the disabilities in question, and opine whether the Veteran has any symptoms related to his diabetes/associated complications not encompassed by the schedular criteria. The examiner must address the Veteran's lay assertion that he experiences flare-ups that cause blurred vision and hand cramping (see March 2016 correspondence). The examiner should also discuss the expected impact of this service-connected disability on the Veteran's employability, to include consideration of whether his diabetes/associated complications, considered collectively with the other service-connected disabilities of record (to include posttraumatic stress disorder, left middle finger disability, peripheral neuropathy of the left upper and bilateral lower extremities, and left hydrocele), present an unusual disability picture. The examiner must explain the rationale for all opinions, citing to supporting clinical data/medical literature as appropriate. 4. The AOJ should then review the record, arrange for any further development indicated, to include a second referral for extraschedular consideration, if warranted, and readjudicate the claims. [If another referral is not deemed warranted, the AOJ should specifically address the factors cited by the Veteran in the March 2016 correspondence.] If either remains denied, the AOJ should issue an appropriate supplemental statement of the case and afford the Veteran and his representative opportunity to respond before the record is returned to the Board. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court 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 2014). _________________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2015).