Citation Nr: 1803237 Decision Date: 01/18/18 Archive Date: 01/29/18 DOCKET NO. 13-06 726A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to an increased rating for service-connected residuals of a right thumb fracture, evaluated as 10 percent disabling. 2. Entitlement to an increased rating for residuals of a right wrist fracture, evaluated as 10 percent disabling. 3. Entitlement to an increased rating for residuals of genital warts with circumcision, currently evaluated as noncompensable. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD E. Kunju, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1990 to June 1995. This case comes to the Board of Veterans' Appeals (Board) on appeal from an October 2011 rating decision by the Department of Veterans' Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. In February 2017, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the claims file. This case consists of documents in the Veterans Benefits Management System (VBMS) and in Legacy Content Manager (LCM). LCM contains VA treatment records. Otherwise, documents in LCM are duplicative of those in VBMS or are irrelevant to the issues on appeal. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Although the Board regrets the additional delay, remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claims. First, regarding each of the issues on appeal, remand is required to obtain current VA examinations. Where a Veteran asserts that a disability has worsened since his last VA examination, and the last examination is too remote to constitute a contemporaneous examination, a new examination is required. 38 U.S.C. § 5103A(d) (2012); 38 C.F.R. § 3.159 (c)(4) (2017); Snuffer v. Gober, 10 Vet. App. 400 (1997). Regarding increased ratings for residuals of a right thumb fracture and for residuals of a right wrist fracture, the most recent VA examinations were in May 2013. Regarding the right thumb, the examiner noted that the Veteran had tenderness on palpation and x-rays were negative for abnormal findings. It was also noted that the Veteran did not use a brace. Regarding the right wrist, the Veteran reported flare-ups occurring twice a month with moderately severe pain with activity. The examiner noted that the Veteran had decreased range of motion, pain with motion, tenderness upon palpation and moderate residual wrist strain of the right wrist. Imaging studies of the wrist were performed, but no degenerative or traumatic arthritis was found. At his February 2017 hearing before the Board, the Veteran testified that he has developed arthritis, and experiences weakened grip and dislocation of the wrist. The Veteran also testified that he wears gloves prescribed by the VA and utilizes a brace to immobilize his wrist. He reported numbness and tingling in the fingers of his right hand. Thus, as the most recent examinations were over 4 years prior and the Veteran has testified that the symptoms associated with his right wrist and right thumb has worsened, a new VA examination is necessary. Regarding the residuals of genital warts with circumcision, VA last examined the Veteran in May 2013. At the February 2017 Board hearing, the Veteran testified that his service-connected warts have turned into stage two cancer and he has warts all over his body. In light of the Veteran's testimony that his service-connected disability gas progressed to include an additional condition, and the fact that VA last examined him over 4 years previously, a new examination of the residuals of genital warts is necessary. Second, regarding increased ratings for residuals of a right thumb fracture and residuals of a right wrist fracture, remand is required for an adequate examination. VA examinations must include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App 158 (2016); 38 C.F.R. § 4.59 (2017). These requirements are not limited to diagnostic codes involving range of motion and include disabilities involving painful joints or periarticular pathology. Southall-Norman v. McDonald, 28 Vet. App. 346, 354 (2016). The May 2013 examinations are inadequate for rating purposes, as they did not include range of motion findings in both active and passive motion. As such, a remand is also required to obtain the needed information. Third, remand is required to obtain VA treatment records. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (c) (2017). This includes making as many requests as are necessary to obtain relevant records from a Federal department or agency, including, but not limited to, records from Federal agencies. 38 C.F.R. § 3.159(c)(2). At the February 2017 Board hearing, the Veteran stated that he received treatment at both the VA Medical Center (VAMC) John Cochran in St. Louis, Missouri and at the VAMC Jesse Brown in Chicago, Illinois for his genital warts. Although scattered treatment records from the VAMC in Chicago from 2001 through 2015 are of record, it does not appear that all relevant records have been obtained. The Board finds that a remand for all medical records held by the VAMCs are necessary as it may impact the Veteran's claim. Accordingly, the case is REMANDED for the following action: 1. Contact the appropriate VA Medical Center(s) including VAMC John Cochran in St. Louis, Missouri and VAMC Jesse Brown in Chicago, Illinois, and obtain and associate with the claims file all outstanding records of treatment. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his representative. 2. Contact the Veteran and afford him the opportunity to identify by name, address, and dates of treatment or examination any relevant medical records. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file. If, after making reasonable efforts, the records cannot be obtained, notify the Veteran and his representative and (a) identify the specific records that cannot be obtained; (b) briefly explain the efforts made to obtain those records; and (c) describe any further action to be taken with respect to the claim. The Veteran must then be given an opportunity to respond. 3. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the current severity of his service-connected residuals of a right wrist fracture and residuals of a right thumb fracture. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The examiner must utilize the appropriate Disability Benefits Questionnaires (DBQs). In addition, the examiner must address the following: a) Test the right thumb and wrist ranges of motion in active motion and passive motion. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. b) Describe any right thumb and wrist functional limitation due to pain, weakened movement, excess fatigability, pain with use, or incoordination. Additional limitation of motion during flare-ups and following repetitive use due to limited motion, excess motion, fatigability, weakened motion, incoordination, or painful motion must also be noted. 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. All losses of function due to problems such as pain should be equated to additional degrees of limitation of flexion and extension beyond that shown clinically. Should the examiner state that he or she is unable to offer such an opinion without resorting to speculation based on the fact that the examination was not performed during a flare, the examiner is directed to do all that reasonably can be done to become informed before such a conclusion, to include ascertaining adequate information-i.e. frequency, duration, characteristics, severity, or functional loss-regarding his flares by alternative means. c) Determine whether the Veteran has a neurological impairment associated with the service-connected residuals of a right wrist fracture and residuals of a right thumb fracture. The examiner must address the Veteran's February 2017 hearing testimony that he experiences numbness and tingling in his fingers. 4. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the current severity of his service-connected residuals of genital warts with circumcision. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The examiner must utilize the appropriate Disability Benefits Questionnaire (DBQ). In addition, the examiner must address the following: a) Whether the Veteran has warts all over his body that are related to his service-connected residuals of genital warts. b) Whether the Veteran's service-connected residuals of genital warts are cancerous. The examiner must address the following: 1) the April 2014 VA treatment record referencing in situ carcinoma; 2) the December 2015 VA treatment record stating that given the Veteran's history of penile cancer, there are concerns for possible liver lesions or lung lesions; and 3) the Veteran's April 2015 e-mail correspondence that he has cancer on his tongue. 6. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claims, and that the consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2017). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 7. Ensure compliance with the directives of this remand. If the report is deficient in any manner, the AOJ must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 8. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claims must be readjudicated. If the claims remain denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. 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). 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). _________________________________________________ K. MILLIKAN 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).