Citation Nr: 1751510 Decision Date: 11/09/17 Archive Date: 11/17/17 DOCKET NO. 09-33 428 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to an initial rating higher than 10 percent for osteoarthritis of the first carpometacarpal joint of the left hand, residuals from blast wound to the left thumb. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL The Veteran and T.S. ATTORNEY FOR THE BOARD B. Elwood, Counsel INTRODUCTION The Veteran served on active duty from August 1968 to May 1971. He received the Combat Infantry Badge. This matter initially came before the Board of Veterans' Appeals (Board) from a November 2007 rating decision of the Department of Veterans Affairs (VA), Appeals Management Center (AMC) in Washington, D.C. In that decision, the AMC granted service connection for osteoarthritis of the first carpometacarpal joint of the left hand, residuals from blast wound to the left thumb and assigned an initial 10 percent disability rating, from September 24, 2002. The RO in Portland, Oregon currently has jurisdiction over the Veteran's claim. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at an October 2016 videoconference hearing at the RO. A transcript of the hearing has been associated with the Veteran's file. In May 2017, the Board remanded this matter for further development. As a final preliminary matter, the Board points out that the Veteran submitted a notice of disagreement (NOD) in August 2017 with respect to a July 2017 rating decision which granted service connection for hypertension and assigned an initial noncompensable disability rating, from October 7, 2005. Although a statement of the case has not yet been issued, an October 2017 letter sent to the Veteran and information contained in the Veterans Appeals Control and Locator System (VACOLS) reflects that the RO has fully acknowledged the Veteran's August 2017 NOD and is currently in the process of adjudicating the appeal. As such, the hypertension issue will not be addressed at this time. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND In its May 2017 remand, the Board instructed the AOJ to schedule the Veteran for a VA examination to assess the severity of his service-connected left thumb disability. Thereafter, the AOJ was to readjudicate the Veteran's claim and issue a supplemental statement of the case (SSOC) if the full benefit sought on appeal remained denied. As noted by the Veteran's representative in the October 2017 Informal Hearing Presentation, a review of the claims file reflects that it does not appear that the Veteran was not afforded the requested VA examination or that an SSOC addressing his appeal for a higher initial rating for the service-connected left thumb disability was ever issued. The Veteran's representative requested a remand in order to allow the AOJ to conduct this development. A remand by the Board confers on an appellant the right to VA compliance with the terms of the remand order and imposes on the Secretary a concomitant duty to ensure compliance with those terms. Stegall v. West, 11 Vet. App. 268, 271 (1998). Where a remand order of the Board is not complied with, the Board itself errs in failing to ensure compliance. Id. at 270-71. As a VA examination to assess the severity of the service-connected left thumb disability does not appear to have been conducted and the AOJ does not appear to have readjudicated the Veteran's claim or issue an SSOC, the Board will grant the request of the Veteran's representative to remand the appeal for a higher initial rating for the service-connected left thumb disability for compliance with the instructions in the May 2017 remand. If the Board is in error that the examination was not conducted and the SSOC not issued, it apologizes, and requests that the AOJ indicate the location of these documents in a memorandum to the file. Updated VA treatment records should also be secured upon remand. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the file all outstanding records of the Veteran's treatment from the VA Portland Health Care System dated since September 2017; and all such relevant records from any other sufficiently identified VA facility. All efforts to obtain these records should be documented in the file. Such efforts should continue until the records are obtained or it is reasonably certain that they do not exist or that further efforts to obtain them would be futile. If unable to obtain any identified records, take action in accordance with 38 C.F.R. § 3.159 (e) (2017). 2. After all efforts have been exhausted to obtain and associate with the file any additional treatment records, schedule the Veteran for a VA examination to evaluate the current severity of his service-connected left thumb disability. All indicated tests and studies shall be conducted. All relevant electronic records contained in the VBMS and Virtual VA systems, including a copy of this remand and any records obtained pursuant to this remand, must be sent to the examiner for review. The examination should be conducted in accordance with the current disability benefits questionnaire. 3. If the full benefit sought on appeal remains denied, the AOJ should issue an appropriate SSOC that considers all additional relevant evidence received since the Board's May 2017 remand. After the Veteran is given an opportunity to respond, the case should be returned to the Board. 4. If the Board is in error that the examination was not conducted and the SSOC not issued, it apologizes, and requests that the AOJ indicate the location of these documents in a memorandum to the file. 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). _________________________________________________ Jonathan Hager Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 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) (2017).