Citation Nr: 1722902 Decision Date: 06/20/17 Archive Date: 06/29/17 DOCKET NO. 08-22 903 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to an initial evaluation in excess of 10 percent for residuals of right wrist fracture (right wrist disability). REPRESENTATION Appellant represented by: Puerto Rico Public Advocate for Veterans Affairs ATTORNEY FOR THE BOARD H. Daus, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1953 to November 1955. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. In January 2010, the Board remanded the matter for additional development. At that point in time, the issue on appeal was characterized as entitlement to an initial compensable rating for residuals of a right wrist fracture; however, in a September 2011 rating decision, the Agency of Original Jurisdiction (AOJ) increased the evaluation to 10 percent, effective November 22, 2006. The grant of an increased rating during the course of an appeal does not affect the pendency of that appeal. See AB v. Brown, 6 Vet. App. 35 (1993). As the Veteran is presumed to be seeking the maximum allowable benefit, and the maximum benefit has not yet been awarded, the claim is still in controversy and on appeal. Id. In January 2012, the Board remanded the matter again for additional development and to ensure compliance with the January 2010 Board remand directives. For the reasons set forth below, the Board finds that the AOJ did not substantially comply with the January 2012 Board remand directives in their entirety. See Stegall v. West, 11 Vet. App. 268, 271 (1998). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). See 38 U.S.C.A. § 7107(a)(2) (West 2014). The appeal is REMANDED to the AOJ. VA will notify the Veteran when further action is required. REMAND While the additional delay is regrettable, the Board finds that another remand is required to fairly decide the Veteran's claim. The January 2010 Board remand found that the record raised the issue of entitlement to a total disability rating based on unemployability (TDIU) due to service-connected right wrist disability. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). As such, the January 2010 Board remand directed the AOJ to: (1) notify the Veteran pursuant to the Veterans Claims Assistance Act of 2000 (VCAA) regarding his claim for entitlement to a TDIU; (2) afford the Veteran a new VA examination to assess the current severity of the right wrist disability and its effect on employability; and (3) readjudicate the matter herein while specifically addressing the issue of a TDIU. The January 2012 Board remand found that the AOJ failed to make reasonable efforts to obtain certain private treatment records and to comply with the January 2010 Board remand directives regarding TDIU. See 38 C.F.R. § 3.159(c)(1); Stegall v. West, 11 Vet. App. 268, 271 (1998); Rice, 22 Vet. App. at 453-54. As such, the January 2012 Board remand directed the AOJ to: (1) seek more recent, private treatment records from a particular provider; and (2) readjudicate the matter herein while specifically addressing the issue of a TDIU. Pursuant to the Board's January 2012 remand directives, the AOJ sought authorization to obtain the more recent, private treatment records from the particular provider; however, the Veteran did not provide a VA Form 4142 (Authorization to Disclose Information to VA) for the requested physician. See June 2016 Deferred Rating Decision. As such, the Board finds that the AOJ substantially complied with this portion of the remand directives. See Stegall, 11 Vet. App. at 271. However, the November 2016 Supplemental Statement of the Case (SSOC) is, again, silent regarding the issue of a TDIU. As such, the Board finds that the AOJ did not substantially comply with this portion of the remand directives. See Stegall, 11 Vet. App. at 271. Additionally, the Board notes that the Veteran had pertinent VA examinations in August 2007 and January 2010. During the pendency of the appeal and following the most recent VA examination in January 2010, it was determined that adequate VA examinations of the joints must, if possible, note facial expressions of pain, crepitation in soft tissues and joint structures, and test for pain throughout range of motion in various ways. See Correia v. McDonald, 28 Vet. App. 158, 168-70 (2016); 38 C.F.R. § 4.59. The joints involved "should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint." See 38 C.F.R. § 4.59. As such, the Board finds that both examinations are inadequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303 (2007). As such, a new VA examination is required to assess the current severity of the Veteran's right wrist disability and any effects it has on employability. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Seek a new examination by an appropriate medical professional to clarify the current nature and severity of the Veteran's residuals of right wrist fracture (right wrist disability). All testing should be Correia-compliant. See Correia, 28 Vet. App. at 168-70. 2. After the above-requested development is complete: (a) readjudicate the issue of entitlement to an initial evaluation in excess of 10 percent for right wrist disability; and (b) adjudicate the issue of entitlement to a TDIU due to right wrist disability. The Board highlights that this is the third time it has directed the AOJ to adjudicate the TDIU issue. See January 2010 Board remand directives, as discussed in remand body; January 2012 Board remand directives, as discussed in remand body; Stegall, 11 Vet. App. at 271. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. See 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). _________________________________________________ R. FEINBERG 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) (2016).