Citation Nr: 1804609 Decision Date: 01/24/18 Archive Date: 02/05/18 DOCKET NO. 12-29 475 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to a rating in excess of 10 percent for status post fracture of the right little finger with residual limitation of motion (hereinafter "right little finger disability"). 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran and Spouse ATTORNEY FOR THE BOARD M. Mac, Counsel INTRODUCTION The Veteran had active military service from May 1985 to May 1989. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. In connection with this appeal, the Veteran and his spouse testified at a hearing before the undersigned Veterans Law Judge at the RO in October 2015. A transcript of that hearing has been associated with the claims file. The issue of entitlement to service connection for a right ring finger disability was raised at the Veteran's October 2015 hearing. In the December 2015 remand, the Board stated that it did not have jurisdiction to decide that issue and referred it to the Agency of Original Jurisdiction (AOJ) for appropriate action. In an administrative decision in July 2016, the Appeals Management Center (AMC) also referred this issue to the RO for immediate attention. However, it remains unadjudicated. Thus, the Board once again must refer the claim of service connection for a right ring finger disability to the RO for appropriate action. Further, in February 2017 the Veteran also appeared to be raising multiple claims of service connection including for posttraumatic stress disorder (PTSD), depression, hip disability, and kidney failure. In this regard, the Board notes that current VA regulations require that all claims filed on or after March 24, 2015 be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. See 38 C.F.R § 3.155 (d) (2017); 79 Fed. Reg. 57660 (Sept. 25, 2014). Thus, the Board also refers these matters to the RO for appropriate action. Lastly, the record shows that the Veteran may not be gainfully employed due to his right little finger disability. See, e.g., February 2017 statement. Thus, the issue of TDIU is currently before the Board. Rice v. Shinseki, 22 Vet. App. 447, 453 (2009) (holding that a claim for TDIU, either expressly raised by the appellant or reasonably raised by the record, is part of the claim for an increased rating). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND After carefully considering this matter, and for reasons expressed immediately below, the Board finds that this case must be remanded for further development. The Board regrets the delay associated with this remand, especially considering that this matter was the subject of a previous remand. However, for the following reasons, another remand is necessary to ensure that the Veteran is accorded full compliance with the statutory duty to assist. First, the Veteran was last afforded a VA examination in February 2016. Subsequently in February 2017 he stated that his hand was getting much worse and that he could hardly work with it. The United States Court of Appeals for Veterans Claims (Court) has held that a veteran is entitled to a new VA examination where there is evidence that the disability has worsened since the last VA examination. Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994) (wherein the Court determined the Board should have ordered a contemporaneous examination of the Veteran because a 23-month old examination was too remote in time to adequately support the decision in an appeal for an increased rating). Second, in the December 2015 remand, the Board noted that at the October 2015 Board hearing, the Veteran testified that he had tingling and numbness and requested that the examiner address neurological impairment associated with the Veteran's right little finger disability. As the February 2016 examiner did not address neurological impairment, there is a lack of compliance with the Board's remand directives. Compliance with the Board's remand instructions is neither optional nor discretionary. See Stegall v. West, 11Vet. App. 268, 271 (1998). Third, on the February 2016 VA examination, the examiner determined that the Veteran had Dupuytren's Contracture of the right second, fourth, and fifth fingers and ankylosis of the right second, ring, and little fingers. As indicated by the Veteran's representative in the December 2017 brief, the examiner provided an inconsistent opinion as he opined that injury in some cases causes Dupuytren's and that the consensus is that trauma does not play a role in its etiology. A clear opinion on this matter is necessary as under the applicable rating criteria for ankylosis of the right little finger (Diagnostic Code 5227), additional evaluation must be considered for resulting limitation of motion of other digits or interference with overall function of the hand. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Fourth, as discussed above, the issue of entitlement to service connection for a right ring finger disability herein has been referred to the RO for appropriate action. This issue is intertwined with the claim for a higher rating for the service-connected right little finger disability as the Veteran may be entitled to a higher rating for ankylosis of multiple digits in the right hand. Thus, the inextricably intertwined issue of service connection for a right ring finger disability must be fully decided prior to adjudication of the Veteran's claim of entitlement to a rating in excess of 10 percent for the right little finger disability. Harris v. Derwinski, 1 Vet. App. 180 (1991). Lastly, as discussed in the Introduction, the record reflects that the Veteran may not be able to secure or follow a substantially gainful occupation as a result of his right little finger disability. Thus, the issue of entitlement to a TDIU must be remanded for further development. VA's Office of General Counsel has stated that, when the issue of entitlement to a TDIU for a particular service-connected disability or disabilities is raised in connection with a claim for an increased rating for such disability or disabilities, the Board would have jurisdiction to consider the TDIU issue. If the Board determines that further action by the AOJ is necessary with respect to TDIU, the Board should remand, rather than refer, the TDIU issue for further development. See VAOPGCPREC 6-96 at para. 12, 13 (August 16, 1996); Cf. Godfrey v. Brown, 7 Vet. App. 398, 409 (1995). Therefore, the AOJ should take appropriate steps to develop and adjudicate the claim for a TDIU in light of all the evidence of record. Accordingly, the case is REMANDED for the following action: 1. After adjudicating the Veteran's referred claim for service connection for a right ring finger disability, pursue the development indicated below. 2. Send a Veterans Claims Assistance Act notice letter to the Veteran notifying him of any information, or lay or medical evidence, not previously provided that is necessary to substantiate the TDIU claim on appeal. This VCAA letter should include both (1) a VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability); and (2) a VA Form 21-4192 (Request for Employment Information in Connection with Claim for Disability Benefits). The AOJ should request that the Veteran fill out these forms and submit them to the AOJ, to determine his employment history and whether he is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. 3. Schedule the Veteran for a VA examination of his right little finger. The entire claims file, to include a complete copy of this REMAND, must be made available to the examiner designated to examine the Veteran and the report of the examination should include a discussion of the Veteran's documented medical history and assertions. Any necessary studies or tests should be conducted. Upon review of the record and interview and examination of the Veteran, the examiner is asked to do the following: Utilize the appropriate Disability Benefits Questionnaire in evaluating the service-connected right little finger disability. After reviewing the record and examining the Veteran the examiner also must provide opinions on the following: a.) Whether the Veteran's right little finger ankylosis documented on the February 2016 VA examination results in limitation of motion of other digits or interference with overall function of the right hand. If so, the examiner must identify such digits along with their range of motion and provide a detailed account of the resulting overall functional impairment of the right hand. If the overall functional impairment includes ankylosis of other digits, the examiner is ask to state whether it is favorable or unfavorable ankylosis. b.) Address whether or not there is neurological impairment associated with the right little finger disability. In doing so the examiner must identify all the nerves affected and determine whether the findings represent complete paralysis of each affected nerve or nerves; or, mild, or moderate, or moderately severe, or severe incomplete paralysis of each affected nerve or nerves. If there is overlapping symptomatology among multiple nerves, the examiner should to the extent possible identify the impaired nerve that is most analogous to the Veteran's symptoms. The examiner must address the Veteran's October 2015 testimony whereby he stated that he has been experiencing neurological symptoms, such as tingling and numbness, in his right little finger. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be acknowledged and considered in formulating any opinion. For all opinions rendered, the examiner must explain the rationale. If the examiner is unable to provide an opinion he or she should explain why. 4. Review the medical opinion/examination obtained above to ensure that the remand directives have been accomplished. If all questions posed are not answered or sufficiently answered, the case should be returned to the examiner for completion of the inquiry. 5. Afterwards, adjudicate the increased rating and TDIU claims (as are included on the title page of this Remand). In adjudicating the TDIU issue, the AOJ should consider whether the Veteran is entitled to TDIU under the provisions of 38 C.F.R. § 4.16, in accordance with Rice v. Shinseki, 22 Vet. App. 447 (2009). If the issues of entitlement to TDIU and a rating higher than 10 percent for the right little finger disability are not fully granted, the Veteran and his representative must be furnished a Supplemental Statement of the Case and afforded a reasonable opportunity to respond before the record is returned to the Board for further review. No action is required of the Veteran until he is notified by VA. However, he is advised of his obligation to cooperate in ensuring that the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005); Wood v. Derwinski, 1 Vet. App. 190 (1991). His failure to help procure treatment records, or to report for any scheduled VA examination, may impact the decision made. 38 C.F.R. § 3.655 (2017). He is advised that he has the right to submit additional evidence and argument, whether himself or through his representative, with respect to this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). It must be afforded prompt treatment. The law indeed requires that all remands by the Board or the Court be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Only a decision of the Board is appealable to the Court. 38 U.S.C.A. § 7252 (West 2014). 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).