Citation Nr: 1631236 Decision Date: 08/05/16 Archive Date: 08/12/16 DOCKET NO. 13-13 937 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a rating in excess of 40 percent for traumatic amputation of two, three, four, and five digits of the left hand through middle phalanges with excision of fingernail remnant and nail horn, fifth digit, and workable movements of all PIP joints (nondominant). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. C. Wilson, Associate Counsel INTRODUCTION The Veteran had active military service from September 1980 to September 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision that was issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado, in August 2010. Jurisdiction over this matter currently resides with the RO in St. Petersburg, Florida. In May 2016, the Veteran testified during a videoconference hearing before the undersigned Veterans Law Judge. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Generally, VA is required to assist the Veteran in obtaining evidence necessary to support a claim and afford an examination to assess the current nature, extent, and severity of a service-connected disability when there is evidence that the Veteran's level of disability worsened since the last examination. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c)(2); Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Here, during the May 2016 Board hearing, the Veteran's representative reported that the Veteran's left hand disability has worsened since her last VA examination, which was conducted in June 2010. Further, in her August 2011 Notice of Disagreement (NOD) and during the Board hearing, the Veteran asserted that the examiner who conducted the June 2010 examination failed to adequately account for all of her symptoms and limitations, to include additional functional loss due to such factors as pain, weakened movement, excess fatigability, loss of strength, atrophy of the left arm, numbness, and inflammation. Thus, the Board finds that an additional examination must be provided on remand. In addition, the Veteran's hearing testimony indicates that there are outstanding records of her treatment at the following locations: the VA hospital in Jacksonville, Florida; the Naval Air Station (NAS) in Jacksonville, Florida; and the United States Air Force Academy Hospital in Denver, Colorado. Further, the Veteran testified that there are records of her participation in a vocational rehabilitation program. These records must be obtained on remand. Additionally, the Board notes that in exceptional circumstances, where the schedular evaluations are found to be inadequate, 38 C.F.R. § 3.321(b)(1) provides that a veteran may be awarded a rating higher than that encompassed by the schedular criteria. Under the regulation, an extraschedular disability rating is warranted upon a finding that "the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards." If exceptional circumstances are found, the matter must be referred to the Under Secretary for Benefits or the Director of the Compensation Service for consideration of assignment of an extraschedular evaluation. See id. Here, during her Board hearing, the Veteran indicated that she may not have the dexterity and coordination needed to be able to type on a computer, which interferes with her employment. Thus, in light of Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), the Board finds that the AOJ should consider whether to refer the issue of the Veteran's entitlement to an extraschedular rating for her left hand disability, alone, or for all of her service-connected disabilities in combination. Accordingly, the case is REMANDED for the following action: 1. Make reasonable efforts to associate with the claims file outstanding treatment records from the VA hospital in Jacksonville, the NAS in Jacksonville, the United States Air Force Academy Hospital in Denver, and the Veteran's vocational rehabilitation program. Any additional records identified by the Veteran during the course of the remand should also be obtained, following the receipt of any necessary authorizations from the Veteran, and associated with the claims file. 2. After associating any records obtained by way of the above development, arrange for the Veteran to be examined by a hand surgeon to determine the current severity of her service-connected left hand disability. The claims file, and any newly associated evidence, must be made available to and reviewed by the examiner and the examiner should annotate the report as to whether the claims file was reviewed. All pertinent symptomatology and findings should be reported in detail. Any necessary diagnostic tests and studies should be conducted and the examiner is asked to comment on any relevant VA or private treatment records in his or her report. As to all information requested below, the examiner should fully explain any opinion stated. The examiner should determine the range of motion of the digits of the Veteran's left and right hands, in degrees. Range of motion testing must include both passive and active motion, as well as in weight-bearing and nonweight-bearing conditions. It should be indicated whether and at what point during the Veteran's range of motion the Veteran experiences any limitation of motion that is specifically attributable to pain. Further, the degree of additional range of motion loss or favorable or unfavorable ankylosis due to pain on use, weakened movement, excess fatigability, incoordination, or lack of endurance should be indicated. The examiner should also specifically address the Veteran's complaints of atrophy of the left arm, numbness, and inflammation. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. 3. Thereafter, consider whether to forward the case to the Under Secretary for Benefits or the Director of the Compensation Service for consideration of the assignment of an extraschedular rating with respect to the Veteran's service-connected left hand disability or all of her service-connected disabilities in combination. 4. After completing any additional development deemed necessary, readjudicate the issue on appeal. If the benefits requested on appeal are not granted in full, issue the Veteran a Supplemental Statement of the Case. After providing an opportunity to respond thereto, the case should then be returned to the Board for further appellate consideration, if in order. By this remand, the Board intimates no opinion as to any final outcome warranted. 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 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 2014). _________________________________________________ S. C. KREMBS 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).