Citation Nr: 1757799 Decision Date: 12/13/17 Archive Date: 12/28/17 DOCKET NO. 11-18 586 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an initial rating in excess of 10 percent for residuals of a right thumb injury with degenerative joint disease of the first metacarpophalangeal joint. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J.Lee, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1977 to June 1994. He also had a period of active duty for training (ACDUTRA) with the Marine Corps Reserve from June 26 to December 21, 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a April 2009 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In that decision, the RO granted service connection for residuals of a right thumb injury with degenerative joint disease of the first metacarpophalangeal joint and assigned an initial non-compensable disability rating, effective from December 26, 2007, and denied entitlement to service connection for intestinal blockage, acid indigestion, and colon cancer. In a May 2011 decision, a Decision Review Officer (DRO) assigned an initial 10 percent disability rating for residuals of a right thumb injury with degenerative joint disease of the first metacarpophalangeal joint, effective from December 26, 2007. The Veteran testified before a DRO at an October 2011 hearing at the RO. A transcript of the hearing has been associated with the file. In March 2014, the Board remanded these matters for further development. In November 2014, the Board denied an appeal for an initial rating higher than 10 percent for residuals of a right thumb injury with degenerative joint disease of the first metacarpophalangeal joint. The Veteran appealed the Board's denial to the United States Court of Appeals for Veterans Claims (Court). In December 2015, the Court set aside the Board's November 2014 decision, in part, and remanded the case for readjudication in compliance with directives specified in a December 2015 Joint Motion filed by counsel for the Veteran and VA. In April 2016, the Board again remanded the case for additional development which has not been substantially completed. Stegall v. West, 11 Vet. App. 268 (1998). 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 additional delay, a remand is necessary to ensure that due process is followed and that there is complete record upon which to decide the Veteran's remaining claim so that he is afforded every possible consideration. 38 U.S.C. § 5.103A; 38 C.F.R. § 3.159. Pursuant to the Board's remand, the Veteran was afforded a Hand and Finger Conditions Disability Benefits Questionnaire (DBQ) in May 2017. After reviewing the Veteran's claim file, the Board instructed the VA examiner, in part, to specify whether and to what extent there was any additional loss of finger motion (stated in degrees or in terms of the size of any gap between the thumb pad and the fingers) due to any weakened movement, excess fatigability, incoordination, flare ups, and/or pain. The VA examiner was further instructed to speculate or conjecture as necessary, and if the examiner could not provide the requested opinion without resorting to speculation, to state so and provide reason as to why such speculation would be required. However, the May 2017 VA examiner did not provide sufficient rationale for the opinion rendered regarding right hand repeated use over time and flare-ups, and thus, the opinion is conclusory. See Jones v. Shinseki, 23 Vet. App. 382 (2010). Based on the above, the Board finds that a remand is required in order to obtain an addendum opinion from a VA examiner. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that, once VA undertakes the effort to provide an examination, it must provide an adequate one or, at a minimum, notify the Veteran why one will not or cannot be provided). Accordingly, the case is REMANDED for the following action: 1. Return the claims file to the VA examiner who had conducted the May 2017 examination for the purpose of an addendum opinion. If the examiner is not available, obtain an opinion from another appropriate physician or other appropriate specialist. A copy of this remand and the entire claims file must be made available to and reviewed by the examiner, including the Veteran's service treatment and post-service treatment records. The examiner should then offer an opinion on the range of motion of the fingers of the right hand, reported in degrees and the size of any gap between the thumb pad and the fingers shall also be reported. The examiner shall also specify whether and to what extent there is any additional loss of finger motion (stated in degrees or in terms of the size of any gap between the thumb pad and the fingers) due to any weakened movement, excess fatigability, incoordination, flare-ups, and/or pain. In this regard, some speculation/conjecture on the examiner's part may be necessary. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide reasons as to why such speculation would be required. A complete rationale for all opinions expressed must be provided. 2. Readjudicate the appeal. The Veteran has the right to submit additional evidence and argument on the matter or 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. §§ 5109B, 7112 (2012). _________________________________________________ L. M. BARNARD Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012) 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).