Citation Nr: 1751631 Decision Date: 11/13/17 Archive Date: 11/22/17 DOCKET NO. 13-35 910 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to an increased rating in excess of 10 percent for residuals of a right hand fracture of the 4th and 5th metacarpals. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD A. Snoparsky, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from February 1992 to February 1996. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. The Veteran had a videoconference hearing before the undersigned Veterans Law Judge in May 2017. A transcript of the hearing has been associated with the file. The claims file is now entirely in VA's secure electronic processing system, Virtual VA and Veterans Benefits Management System (VBMS). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Although the Board regrets the delay, a remand of the Veteran's claim for an increased rating in excess of 10 percent for his residuals of a right hand fracture of his 4th and 5th metacarpals is necessary to ensure that due process is followed and that there is a complete record upon which to decide his claim. See 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2016). Specifically, a remand is necessary to obtain an adequate medical opinion. The Veteran was afforded an examination for his right hand in February 2011. The examiner noted the Veteran was right handed. The Veteran stated he had some numbness in his right arm and shocking-like pain in the hand and dorsal wrist. The Veteran stated he had trouble lifting trays at work and had pain with writing and typing. The examiner noted there was some weakness in the Veteran's right hand and the Veteran dropped items occasionally and unexpectedly. The examiner reported the Veteran wore an elbow brace and wrist splints most of the time and took medication three times per day. The examiner noted there was normal finger alignment, but tenderness and palpable deformity over the 4th and 5th metacarpals. The examiner stated there was no bony crepitus or motion, no atrophy, and no interphalangeal joint instability. The examiner noted limitation in motion with distal interphalangeal joints limited to 30 degrees flexion with full extension. The proximal interphalangeal joints flexion was to 60 degrees and with full extension. The examiner also noted the Veteran had pain on active and passive motion and the Veteran had pain with all hand motions. The examiner reported that after multiple trials, there was no additional limitations on range of motion. The Veteran's right hand strength and coordination were unimpaired with no fatigue or endurance limitations. The examiner stated there were no additional limitations due to flare-ups. Mr. O., one of the Veteran's friends, submitted a statement in February 2011. Mr. O. stated he worked with the Veteran for over a year and witnessed the Veteran with pain in his hand, arm, and shoulder. Mr. O. stated that due to this pain, he believed the Veteran had difficulty performing his job and had to miss work. The Veteran's wife submitted a statement in February 2011 stating that she sees the Veteran struggling physically every day. The Veteran's wife stated the Veteran struggles with simple everyday tasks, like opening a jar of peanut butter, house cleaning, driving, and yard cleaning. The Veteran could no longer play with their children as he would like to due to his chronic pain in his hand and arm. Additionally, the Veteran's wife reported that the Veteran struggled to help his youngest daughter get ready for school because it was difficult for him to perform tasks such as combing her hair and dressing her. The Veteran submitted a statement in February 2011 regarding his right hand. The Veteran stated his condition had gotten worse and that he was struggling with day to day activities. The Veteran stated that he had pain and difficulty grasping, pulling, pushing, and doing everything that involved his right hand. The Veteran stated that in addition to pain, he had numbness that radiated from his fourth and fifth fingers. The Veteran stated that doing things at home was hard for him and that he had to use his left hand for almost everything. The Veteran reported he was not able to participate in sports because of the pain in his right hand and that work presented difficulties for him as his job required pushing, pulling, and lifting of heavy objects. The Veteran continued to work despite the pain. The Veteran stated that in the past year, he had called into work because of his right hand pain, which negatively affected his attendance on his yearly evaluations. The Veteran submitted another statement in June 2011. The Veteran stated he disagreed that his right hand had no joint instability or crepitus. The Veteran also stated he disagreed that a 20 percent evaluation is not warranted unless the index and long; index and ring or index and little fingers are favorably ankylosed. The Veteran stated he has been treating his condition with constant medication and was diagnosed with a deformity causing chronic pain and alteration in the function of his right hand. The Veteran had an examination for his right hand condition in November 2013. The examiner noted the Veteran's diagnosis of right hand post-fracture 4th and 5th metacarpals. The examiner noted the Veteran was right-hand dominant and that the Veteran had flare-ups of his right hand condition which limited the use of his right hand and forced the Veteran to use his left hand. The examiner stated the Veteran had painful motion in all of his fingers on his right hand but did not have ankylosis in any of his right hand fingers or thumb. The examiner reported that the Veteran did not have any functional impairment such that no effective function remained other than that which would be equally well served by an amputation with prosthesis. The examiner noted the Veteran's range of motion during a flare-up was to approximately 5 degrees. The Veteran submitted a statement in December 2013 regarding his right hand. The Veteran stated he had lost a major part if not close to all of his ability to use his right hand and arm up to his shoulder in everyday activities at home and at work. The Veteran stated he believed his injury should be rated in a different category such as a loss of limb because in reality, his right arm was useless to him. The Veteran also stated he disagreed with there being no evidence that the limitations of the thumb and the first two fingers are secondary to the two fractures of the 4th and 5th metacarpals. The Veteran stated his remaining fingers were the only fingers on his right hand he could use to grasp, pull, turn, and hold things with. The Veteran had a videoconference hearing in May 2017. The Veteran's representative noted that since the Veteran's last examination in October 2013, the Veteran has had trouble with the bowing of his hand, which is in a fixed position. The Veteran was now unable to grip, which affects his ability to write and to grab items. The Veteran was also unable to drive. The Veteran asserted that his right hand condition had deteriorated. The Veteran's previous examination for his right hand condition was in November 2013. Since then, the Veteran contended in his December 2013 statement and in his May 2017 testimony that his right hand condition has gotten worse and that his hand is now bowed in an unfavorable position. The Veteran indicated at his May 2017 hearing that he would be willing to go for another examination but to date, no such examination has occurred. Accordingly, the case is REMANDED for the following action: 1. The RO should obtain any and all outstanding medical records from the Veteran and associate them with the claims file. 2. Schedule the Veteran for a VA examination to ascertain the current severity of his service-connected right hand 4th and 5th metacarpal fractures. The examiner should note whether the Veteran has any favorable or unfavorable ankylosis in his 4th and 5th metacarpals. Any negative findings should be indicated. 3. Readjudicate the claims on appeal. If the decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. 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). _________________________________________________ Cynthia M. Bruce 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).