Citation Nr: 1751086 Decision Date: 11/08/17 Archive Date: 11/17/17 DOCKET NO. 12-11 448 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to a rating in excess of 40 percent for reflex sympathetic dystrophy, left upper extremity. 2. Entitlement to special monthly compensation for loss of use of the left hand. 3. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD T. J. Anthony, Associate Counsel INTRODUCTION The Veteran had active service from January 1966 to April 1967. These matters are before the Board of Veterans' Appeals (Board) on appeal of a February 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. In March 2016, the Veteran testified at a hearing before the undersigned Veterans Law Judge via video conference. A transcript of the hearing is associated with the record. In April 2016, the Board issued a decision denying entitlement to a rating in excess of 40 percent for the service-connected reflex sympathetic dystrophy. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In May 2017, the Court vacated the April 2016 Board decision and remanded the issue for further consideration consistent with a Joint Motion for Remand (JMR) filed by counsel for the Veteran and the VA Secretary. The Veteran, through his representative, submitted additional evidence directly to the Board along with a waiver of initial consideration of the evidence by the Agency of Original Jurisdiction (AOJ). Accordingly, the Board may proceed with appellate consideration and accepts the additional evidence for inclusion in the record on appeal. See 38 C.F.R. § 20.1304(c) (2016). The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND The Board finds that these matters must be remanded for further development before a decision may be made on the merits. The Veteran is currently rated as 40 percent disabled for reflex sympathetic dystrophy, left upper extremity, based on severe incomplete paralysis of the middle radicular group under 38 C.F.R. § 4.124a, Diagnostic Code 8511 (2106). He was most recently provided a VA examination as to the disability in June 2013, over four years ago. The June 2013 VA examination report indicates that, at that time, the Veteran had no paralysis of the middle radicular group and moderate incomplete paralysis of the lower radicular group due to the service-connected left upper extremity disability. Since then, the Veteran has reported that he has essentially no use of the left upper extremity. At the March 2016 Board hearing, he testified that he cannot use his left hand to grip a cup of coffee or drive, his hand will "just give away", and he does not "have any strength in it at all." In light of the Veteran's assertions suggesting worsening in the condition since the June 2013 VA examination, a new VA examination is required so that the current severity of the Veteran's service-connected disability may be determined. See 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159; see also Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide the veteran with a thorough and contemporaneous medical examination); Weggenmann v. Brown, 5 Vet. App. 281 (1993) (VA has a duty to provide an examination when there is evidence that the disability has worsened since the previous examination). The Board notes that the parties to the May 2017 JMR agreed that the Board erred in its April 2016 decision in not providing an adequate statement of reasons and bases for denying entitlement to an extra-schedular rating. Specifically, the parties agreed that the Board did not discuss whether the Veteran's narcotic pain medication produced side effects that were not adequately contemplated by the rating schedule. The Veteran has reported that his medication causes drowsiness that prevents him from driving and that his medication makes him feel "goofy." See June 2013 VA examination report. In addition, he testified at the March 2016 Board hearing that pain from his service-connected disability affects his sleep. However, the Veteran has several nonservice-connected disabilities for which he takes medications. On remand, the VA examiner should provide an opinion as to whether it is at least as likely as not that the Veteran's described symptoms of drowsiness, feeling "goofy", and sleep disturbance are caused by his service-connected left upper extremity disability, to include the narcotic medication he is prescribed for the disability, and, if so, should provide a description of the nature and severity of those symptoms. Thereafter, in readjudicating the issue, the AOJ should consider whether entitlement to a separate rating or separate ratings may be granted based on the Veteran's reports of sleep disturbances and drowsiness due to his service-connected left upper extremity disability, to include by analogy under 38 C.F.R. § 4.20, and whether referral for extra-schedular consideration is warranted under 38 C.F.R. § 3.321(b). In addition, the Veteran has expressly raised the issue of entitlement to special monthly compensation based on the loss of use of his left upper extremity. See correspondence from the representative received in October 2017. On remand, the VA examiner should therefore also be asked to provide an opinion as to whether it is at least as likely as not that the Veteran has no effective function remaining in the left hand other than that which would be equally well served by an amputation stump at the site of election below the elbow with use of a suitable prosthetic appliance. The examiner should provide the opinion on the basis of the actual remaining function of the hand, such as acts of grasping and manipulation. See 38 C.F.R. § 3.350(a). Finally, the Veteran has also expressly raised the issue of entitlement to a TDIU as part of the increased rating issue on appeal. See correspondence from the representative received in October 2017. The examiner should therefore be asked to comment on the Veteran's likely functional limitations due to the service-connected left upper extremity disability based on his or her observations and findings on examination. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the current nature and severity of his service-connected reflex sympathetic dystrophy, left upper extremity. The record and a copy of this remand must be made available to the examiner. The examination must conduct all physical and diagnostic testing deemed necessary in conjunction with this request. The examiner should report all manifestations related to the Veteran's service-connected disability of the left upper extremity. The examiner must identify the location and specific nerve or nerves involved and, for each nerve involved, should provide an assessment as to the severity of involvement, such as whether the Veteran experiences complete or incomplete paralysis and whether any incomplete paralysis is mild, moderate, or severe. The examiner should specifically state in regard to the lower radicular group whether the Veteran has paralysis of all intrinsic muscles and some or all flexors of the wrist or fingers of the left upper extremity, and whether the Veteran has substantial loss of use of the hand. See 38 C.F.R. § 4.124a, Diagnostic Code 8512 (2016). After reviewing treatment records, the VA examiner should list all medications which have been prescribed for treatment of the Veteran's reflex sympathetic dystrophy. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's described symptoms of drowsiness, feeling "goofy", and sleep disturbance are caused by his service-connected left upper extremity disability, to include any medication he is prescribed for the disability, and, if so, should provide a description of the nature and severity of those symptoms. The examiner should also provide an opinion as to whether it is at least as likely as not that the Veteran has no effective function remaining in the left hand other than that which would be equally well served by an amputation stump at the site of election below the elbow with use of a suitable prosthetic appliance. The examiner should provide the opinion on the basis of the actual remaining function of the hand, such as acts of grasping and manipulation. See 38 C.F.R. § 3.350(a). Finally, the examiner should comment on the Veteran's likely functional limitations due to the service-connected left upper extremity disability based on his or her observations and findings on examination. For example, he or she should comment on the Veteran's likely ability to lift, carry, push, reach, and perform fine and gross manipulations during a workday in view of the service-connected left upper extremity disability. A complete rationale for all opinions provided must be given. 2. After completion of the above, readjudicate the case based on a review of the expanded record, including the evidence entered since the supplemental statement of the case. In so doing, consideration should be given to whether entitlement to a separate rating or separate ratings may be granted based on the Veteran's reports of sleep disturbances and drowsiness due to his service-connected left upper extremity disability, to include by analogy under 38 C.F.R. § 4.20, and whether referral for extra-schedular consideration is warranted under 38 C.F.R. § 3.321(b). Consideration should also be given to whether special monthly compensation based on the loss of use of the left hand may be granted and whether a TDIU may be granted, to include, if warranted, referral of the matter of whether a TDIU should be awarded on an extra-schedular basis, pursuant to 38 C.F.R. § 4.16(b), to the Director of the Compensation and Pension Service. If any benefit sought remains denied, furnish the Veteran and his representative with a supplemental statement of the case. A reasonable period should be allowed for response before the appeal 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). 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). _________________________________________________ MICHAEL MARTIN 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).