Citation Nr: 1759968 Decision Date: 12/22/17 Archive Date: 01/02/18 DOCKET NO. 10-00 208A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to a rating in excess of 30 percent for status post distal radius fracture and ulna dislocation of the right wrist ATTORNEY FOR THE BOARD G. A. Ong, Associate Counsel INTRODUCTION The Veteran served on active duty from August to December 1974. This matter is before the Board of Veterans' Appeals (Board) on appeal from an March 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. This case was previously before the Board and was remanded in November 2013 and January 2017 for further development. As part of the prior Board remand dated January 2017, the Board determined that the issues of whether new and material evidence have been received to reopen claims for service connection for diabetes mellitus type 2 and myocardial infarction have been raised by the record in a June 2015 statement. As of the date of this decision, these issues have not been adjudicated by the AOJ. Therefore, the Board continues to not have jurisdiction over them, and they are again referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran contends that he is entitled to a rating in excess of 30 percent for status post distal radius fracture and ulna dislocation of the right wrist, assigned under 38 C.F.R. § 4.71a, Diagnostic Code 5212. The Board finds that a remand is warranted for additional development. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. As such, another remand is warranted. In January 2017, the Board remanded this issue for evidentiary development and for a new VA examination. The examiner was asked to determine the current severity of the Veteran's service-connected residuals of right wrist fracture and ulna dislocation. In doing so, the examiner was asked to record the results of range-of-motion testing for pain, in degrees, on both active and passive motion and in weight-bearing and nonweight-bearing for the right wrist. The Board remand further directed the VA examiner to describe the extent of any incoordination, weakened movement, and excess fatigability on use or other functional impairment, whether there is unfavorable or favorable ankylosis of the wrist, and to identify any neurological impairment associated with the Veteran's service-connected right wrist disability. If VA provides an examination that examination must be adequate. Barr, 21 Vet. App. at 303. While the June 2017 VA examination report addressed the aforementioned directives, the VA examiner did not address the physical state of the Veteran's right radius and ulna as directed by the January 2017 Board remand. The VA examiner did not address the presence of nonunion or malunion, the measured loss of bone substance, and whether there is a marked deformity. The VA examiner referenced an x-ray of the right wrist dated April 2006, which predates the date of the Veteran's current claim. Thus, the examination is inadequate in this case. As such, the Board finds it must remand the claim for a new examination to determine the current severity of status post distal radius fracture and ulna dislocation of the right wrist. While on remand, appropriate efforts must be made to obtain any further records identified and authorized for release by the Veteran. Accordingly, the case is REMANDED for the following action: 1. Appropriate efforts should be made to obtain and associate with the case file any further medical records (private and/or VA) identified and authorized for release by the Veteran. All actions to obtain the records should be documented. If the records cannot be located or do not exist, a memorandum of unavailability should be associated with the claims file, and the Veteran should be notified and given an opportunity to provide them. 2. After undertaking the development listed above to the extent possible, the Veteran should be scheduled for a VA examination for his right wrist, specifically to address the physical state of the Veteran's right radius and ulna. Regarding the right radius and ulna, the VA examiner should address the presence of nonunion or malunion, the measured loss of bone substance, and whether there is a marked deformity. Any appropriate evaluations, studies and testing deemed necessary by the examiner should be conducted, including a current x-ray, and their results included in the examination report. In assessing the severity of the right wrist disability, the examiner should test for pain on both active and passive motion, in weight-bearing and non-weight bearing, and if possible with the range of the opposite undamaged joint. If the Veteran describes flare-ups of pain, the examiner must offer an opinion as to whether there would be additional limits on functional ability during flare-ups. An estimate of additional degrees of limitation of motion during the flare-ups should be provided. The underlying reasons for any opinions expressed must be included in the report. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 3. Thereafter, readjudicate the issue on appeal. If the determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case. The appellant 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.A. §§ 5109B, 7112 (West 2014). _________________________________________________ MICHAEL LANE 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) (2017).