Citation Nr: 1757733	
Decision Date: 12/13/17    Archive Date: 12/28/17

DOCKET NO.  11-11 940	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUES

1.  Entitlement to a compensable evaluation for status post right ring finger fracture. 

2.  Entitlement to a total disability rating based upon unemployability (TDIU), to include on an extraschedular basis.


REPRESENTATION

Appellant represented by:	Matthew Wilcut, Attorney 


WITNESSES AT HEARING ON APPEAL

The Veteran and his spouse



ATTORNEY FOR THE BOARD

H. Daus, Associate Counsel


INTRODUCTION

The Veteran had qualifying service from June 2000 to June 2004.   

These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina.

In July 2014, the Veteran and his spouse testified at a Travel Board hearing before the undersigned Veterans Law Judge.

In September 2014 and August 2016, the Board remanded for further development.  Substantial compliance was not achieved.  See Stegall v. West, 11 Vet. App. 268, 271 (1998). 

The appeals are REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the Veteran if further action is required.


REMAND

The Veteran generally contends that the manifestations of his right ring finger fracture are more severe than currently rated.  As the evidence is currently insufficient to decide the claims, remand is required.  Specifically, the October 2016 examiner based the neurological opinion on inadequate EMG results.  See August 2016 Board remand, pg 4; October 2016 VA examination, pg 10.  Additionally, attributing the neurological manifestations solely to CTS (diagnosed in March 2016) fails to explain the etiology of the pre-March 2016 reports of numbness.  See November 2010 Notice of Disagreement.  Finally, as the appeals herein are inextricably intertwined, TDIU must be remanded concurrently.  See Harris v. Derwinski, 1 Vet. App. 180 (1991).

Accordingly, the case is REMANDED for the following action:

1.  Schedule an examination with a physician to assess the severity of any manifestations and functional limitations attributable to the status post right ring finger fracture.    

Neurological testing must be performed.  The examiner's opinion as to whether any neurological manifestations exist must not be based upon the March 2016 EMG results.  See August 2016 Board remand, pg 4 ("the Board does not consider the March 2016 rehab consult, which was performed in the context of treatment, to meet the Board's remand directive for a determination of the neurological manifestations of the Veteran's service-connected disability in the context of a claim for a rating increase"); October 2016 VA examination, pg 10 (examiner opined that the neurological manifestations were attributable to CTS, rather than the right ring finger fracture, based on the inadequate, March 2016 EMG).  

If the examiner opines that the neurological manifestations are solely attributable to the CTS (diagnosed in March 2016), rather than the status post right ring finger fracture, then the examiner must further opine as to the etiology of the Veteran's pre-March 2016 reports of numbness.  See November 2010 Notice of Disagreement ("[t]here is nerve damage done to my hand as a result of it I have a numb feeling in my finger tips and on wet and cold objects I am unable to tell which is which").  

An adequate opinion must consider the Veteran's statements, be based on accurate factual premises, and contain sufficient rationale to support conclusions.  If any opinion cannot be rendered without resorting to mere speculation, the examiner must state whether this is due to: the limits of the examiner's medical knowledge; the limits of general medical knowledge; or the need for additional evidence.  

2.  Readjudicate the appeals.  

The AOJ is advised that the appeals herein are inextricably intertwined.  See Harris, 1 Vet. App. at 180. 

The Veteran has the right to submit additional evidence and argument on the remanded matter.  See Kutscherousky v. West, 12 Vet. App. 369 (1999).  All remanded claims must be handled expeditiously.  See 38 U.S.C. §§ 5109B, 7112 (West 2012).



_________________________________________________
BETHANY L. BUCK
Veterans Law Judge, Board of Veterans' Appeals

Only a Board decision is appealable to the United States Court of Appeals for Veterans Claims.  See 38 U.S.C. § 7252 (West 2012).  This remand is in the nature of a preliminary order and does not constitute a Board decision on the merits of your appeals.  See 38 C.F.R. § 20.1100(b) (2017).