Citation Nr: 1801602 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 13-31 097A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to an increased rating for the residuals of a left wrist fracture with traumatic arthritis, currently evaluated as 10 percent disabling. 2. Entitlement to an increased rating for scars of the left wrist, currently evaluated as 10 percent disabling. 3. Entitlement to an increased rating for carpal tunnel syndrome of the left wrist, currently evaluated as 20 percent disabling since November 24, 2010, and 40 percent disabling since October 7, 2013. 4. Entitlement to an increased rating for residuals of a fracture to the right long finger, distal phalanx, currently evaluated as 10 percent disabling. 5. Entitlement to a total disability rating based upon individual unemployability (TDIU) due to the service-connected disabilities. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Shauna M. Watkins, Counsel INTRODUCTION The Veteran served on active duty from June 1985 to June 1989. The Veteran's increased rating claims come before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision of the U.S. Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. The RO issued another rating decision in October 2013, which assigned separate, compensable disability ratings for the carpal tunnel syndrome of the left wrist. The carpal tunnel syndrome was rated as 20 percent disabling since November 24, 2010, the date of the increased rating claim, and 40 percent disabling since October 7, 2013. The Veteran continued to appeal, requesting even higher disability ratings. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993) (indicating that a veteran is presumed to be seeking the highest possible rating unless he or she expressly indicates otherwise). At the January 2011 VA wrist examination, the Veteran stated that he was unemployed. In a February 2011 Rehabilitation Needs Inventory Form (as part of his vocational rehabilitation claim), the Veteran stated that his left wrist prevented him from any manual labor that required typing or lifting for extended periods of time. At the October 2013 VA wrist examination, the VA examiner found that the Veteran's service-connected left wrist disabilities impacted his employment in that he was unable to type or lift objects. The Board finds that this evidence reasonably raises the claim for a TDIU due to the service-connected left wrist disabilities on appeal, and is included in the Veteran's appeal consistent with Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran's vocational rehabilitation folder was added by VA to the claims file following the most recent readjudication of this appeal by the Agency of Original Jurisdiction (AOJ) in the October 2013 Statement of the Case (SOC). To date, these pertinent records have not been reviewed by the AOJ, and no waiver from the Veteran or his representative was received. However, the Board finds that the Veteran is not prejudiced by this lack of review by the AOJ, as, upon remand, the AOJ will be able to review these records in the first instance during their readjudication of the issues. Thus, a waiver for this evidence is not necessary at this time. 38 C.F.R. §§ 20.800, 20.1304 (2017). The appeal is REMANDED to the AOJ. VA will notify the Veteran if further action is required. REMAND The Veteran has not been provided with a proper duty-to-assist notice letter for his TDIU claim, nor has any development been done with respect to this claim. The Veteran must be provided with this requisite notice upon remand. See 38 U.S.C. § 5103(a) (2012); 38 C.F.R. § 3.159 (2017). The Veteran submitted a July 2017 VA treatment record documenting that he underwent a July 2017 left wrist surgery at a private facility. It does not appear from the available evidence that any efforts have been made to obtain the records of that private surgical treatment. Because such records, if obtained, will contain information bearing on the Veteran's appeal, efforts should be made to procure them. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). Additionally, the AOJ last associated with the Veteran's claims file records of his VA treatment in September 2014. On remand, efforts should be made to obtain records of any relevant VA treatment he may have undergone since that time, in order to ensure that his claims are adjudicated on the basis of an evidentiary record that is as complete as possible. Further, the Veteran was last afforded VA examinations to determine the severity of his service-connected disabilities on appeal in October 2013. In a November 2017 informal hearing presentation, the Veteran's representative argued that the October 2013 VA examination was inadequate, and the Veteran's symptoms had worsened since then. The Board notes that the October 2013 VA examiner did not provide measurements in degrees for the ranges of motion of the Veteran's right long finger and left wrist in active motion, passive motion, weight-bearing, and non-weight-bearing. All of these measurements provided in degrees are necessary for the examination to be considered adequate under Correia v. McDonald, 28 Vet. App. 158 (2016). Where the evidence of record does not reflect the current state of a veteran's disability, a VA examination must be conducted. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Thus, updated VA examinations are necessary. Accordingly, the case is REMANDED for the following actions: 1. Provide the Veteran with notice of the requirements for entitlement to a TDIU-including VA Form 21-8940 (Veterans Application for Increased Compensation Based on Unemployability). 2. Obtain copies of records pertaining to any relevant VA treatment the Veteran has received since September 2014. 3. Ask the Veteran to provide a release for the relevant records of his private surgical treatment in July 2017 for his left wrist, and to identify and provide appropriate releases for any other care providers who may possess new or additional evidence pertinent to the issues on appeal. If he provides the necessary release(s), assist him in obtaining the records identified, following the procedures set forth in 38 C.F.R. § 3.159. Any new or additional (i.e., non-duplicative) evidence received should be associated with the claims file. 4. Arrange to have the Veteran scheduled for a VA joints examination to determine the current severity of the service-connected residuals of a left wrist fracture with traumatic arthritis. The claims file and a copy of this remand must be provided to the examiner for review. All appropriate testing should be conducted, and all clinical manifestations of the service-connected residuals of a left wrist fracture with traumatic arthritis should be reported in detail. The examination report must include ranges of motion of both wrists in active motion, passive motion, weight-bearing, and nonweight-bearing, with notations as to the degree of motion at which the Veteran experiences pain. The extent of any weakened movement, excess fatigability, and incoordination on use should also be described by the examiner. The examiner should assess the additional functional impairment due to weakened movement, excess fatigability, or incoordination in terms of the degree of additional range of motion loss. The examiner also should express an opinion concerning whether there would be additional functional impairment on repeated use or during flare-ups of the left wrist. The examiner should assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss. If possible, the VA examiner should provide medical opinions as to the severity of the Veteran's service-connected residuals of a left wrist fracture with traumatic arthritis from November 2010 to the present. In particular, with respect to flare-ups, the examiner should identify any functional loss caused by flare-ups, to include the amount of range of motion loss, if any, that is present during flare-ups. If the examination is not taking place during a flare-up, the examiner should elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups and estimate range of motion loss, in terms of degrees. Any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. The examiner should also provide a medical opinion addressing the functional effects of the service-connected residuals of a left wrist fracture with traumatic arthritis on the Veteran's ability to perform the mental and physical acts (as appropriate) required for substantially gainful employment consistent with his education and occupational experience. This opinion must be provided without consideration of his nonservice-connected disabilities or age. A complete rationale must be provided for any opinions expressed. If any requested opinion(s) cannot be provided without resorting to speculation, then the examiner must explain why this is so. 5. Arrange to have the Veteran scheduled for a VA joints examination to determine the current severity of the service-connected residuals of a fracture to the right long finger. The claims file and a copy of this remand must be provided to the examiner for review. All appropriate testing should be conducted, and all clinical manifestations of the service-connected residuals of a fracture to the right long finger should be reported in detail. The examination report must include ranges of motion of both long fingers in active motion, passive motion, weight-bearing, and nonweight-bearing, with notations as to the degree of motion at which the Veteran experiences pain. The extent of any weakened movement, excess fatigability, and incoordination on use should also be described by the examiner. The examiner should assess the additional functional impairment due to weakened movement, excess fatigability, or incoordination in terms of the degree of additional range of motion loss. The examiner also should express an opinion concerning whether there would be additional functional impairment on repeated use or during flare-ups of the right long finger. The examiner should assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss. If possible, the VA examiner should provide medical opinions as to the severity of the Veteran's service-connected residuals of a fracture to the right long finger from November 2010 to the present. In particular, with respect to flare-ups, the examiner should identify any functional loss caused by flare-ups, to include the amount of range of motion loss, if any, that is present during flare-ups. If the examination is not taking place during a flare-up, the examiner should elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups and estimate range of motion loss, in terms of degrees. Any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. The examiner should also provide a medical opinion addressing the functional effects of the service-connected residuals of a fracture to the right long finger on the Veteran's ability to perform the mental and physical acts (as appropriate) required for substantially gainful employment consistent with his education and occupational experience. This opinion must be provided without consideration of his nonservice-connected disabilities or age. A complete rationale must be provided for any opinions expressed. If any requested opinion(s) cannot be provided without resorting to speculation, then the examiner must explain why this is so. 6. Arrange to have the Veteran scheduled for a VA nerves examination to determine the current severity of the service-connected carpal tunnel syndrome of the left wrist. The claims file and a copy of this remand must be provided to the examiner for review. All appropriate testing should be conducted, and all clinical manifestations of the service-connected carpal tunnel syndrome of the left wrist should be reported in detail. The examiner should provide a medical opinion addressing the functional effects of the service-connected carpal tunnel syndrome of the left wrist on the Veteran's ability to perform the mental and physical acts (as appropriate) required for substantially gainful employment consistent with his education and occupational experience. This opinion must be provided without consideration of his nonservice-connected disabilities or age. The examiner should set forth all examination findings, along with complete rationale for the conclusions reached. 7. After the foregoing development has been completed to the extent possible, arrange to have the Veteran scheduled for a VA skin examination to determine the current severity of the service-connected scars of the left wrist. The claims file and a copy of this remand must be provided to the examiner for review. All appropriate testing should be conducted, and all clinical manifestations of the service-connected scars of the left wrist should be reported in detail. The examiner should provide a medical opinion addressing the functional effects of the service-connected scars of the left wrist on the Veteran's ability to perform the mental and physical acts (as appropriate) required for substantially gainful employment consistent with his education and occupational experience. This opinion must be provided without consideration of his nonservice-connected disabilities or age. The examiner should set forth all examination findings, along with complete rationale for the conclusions reached. 8. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence. If the claims remain denied, the Veteran and his representative should be issued a Supplemental SOC (SSOC). An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). _________________________________________________ H.M. WALKER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board 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).