Citation Nr: 1804782 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 14-15 212 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement an evaluation in excess of 10 percent prior to March 7, 2016 for right wrist fracture (radial styloid) with degenerative joint disease. 2. Entitlement an evaluation in excess of 10 percent prior to for left wrist fracture (navicular) with degenerative joint disease. REPRESENTATION Veteran represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD J. Trickey, Associate Counsel INTRODUCTION The Veteran had active duty service from January 1973 to January 1993. These matters originally came before the Board of Veterans' Appeals (Board) on appeal from a January 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. 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 claim. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The Board notes that additional records may exist that relate to the Veteran's claims for increased ratings. Specifically, evidence indicates that relevant Social Security Administration (SSA) records may exist that are not currently associated with the Veteran's claims file. See Authorization for release of VA records to SSA dated April 2014. The Board acknowledges that normally VA has a duty to attempt to obtain SSA records when it has actual notice that the Veteran is in receipt of SSA disability benefits. See Murincsak v. Derwinski, 2 Vet. App. 363 (1992). In Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2009), however, the Federal Circuit acknowledged that VA's duty to assist was limited to obtaining relevant SSA records. The Federal Circuit then defined relevant records as "those records that relate to the injury for which the claimant is seeking benefits and have a reasonable possibility of helping to substantiate the Veteran's claim." Id. at 1321. The Board notes that it is unclear what time-frame the SSA records cover; however, these records may contain evidence that warrants higher evaluations for right and left wrist disabilities. Accordingly, VA has a duty to request such records as they may contain evidence relevant to the claims. See 38 C.F.R. § 3.159 (c)(2) and (3) (2014); Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). On remand, the RO should make reasonable attempts to obtain any SSA records that the Veteran authorizes for release and associate this evidence with the claims file. Right Wrist The Veteran underwent two surgeries for his right wrist disability during the appellate period, February 4, 2013 and March 7, 2016. Prior to May 1, 2016, the Veteran's disability was evaluated under 38 C.F.R. § 4.71a, DC 5215. A December 2016 VA examination indicated the presence of extremely unfavorable ankylosis, implicating 38 C.F.R. § 4.71a, DC 5214. Under 38 C.F.R. § 4.71a, DC 5214, a 20 percent rating is assigned for favorable ankylosis of the wrist in 20 to 30 degrees of dorsiflexion. A 30 percent rating is warranted where there is ankylosis of the wrist in any other position, except favorable, and a 40 percent rating is warranted where there is unfavorable ankylosis in any degree of palmar flexion, or with ulnar or radial deviation. A note following DC 5214 states that extremely unfavorable ankylosis will be rated as loss of use of hands under DC 5125. 38 C.F.R. § 4.71a, DC 5214 (2017). An evaluation of 70 percent under DC 5125 was assigned for loss of use of the right hand, effective May 1, 2016, following a period of temporary total disability for convalescence for arthrodesis of the right wrist from March 7, 2016 to May 1, 2016. See Rating decision dated December 2016. Given the severity of the Veteran's right wrist disability and periods of surgical convalescence, the Board finds that a review of the clinical evidence of record and an opinion on whether the Veteran manifested or approximated ankylosis of the right wrist prior to March 7, 2016 is necessary to adjudicate the claim. See 38 U.S.C. § 5103A(d)(2)(A)(C); 38 C.F.R. § 3.159(c)(4)(A)-(C); Chotta v. Peake, 22 Vet. App. 80, 85-86 (2008). Left Wrist The Veteran was last afforded a VA examination for his service-connected left wrist disability in November 2016. However, since that time, the Veteran submitted treatment reports from WellStar Kennestone Hospital showing left wrist surgery in August 2017. In light of the recent evidence of a worsening of the Veteran's left wrist symptoms, the Board finds that a contemporaneous examination is warranted to ascertain the severity of his left wrist disability. See Green v. Derwinski, 1 Vet. App. 121 (1991). Further, there is evidence the Veteran receives treatment from VA for his service-connected disabilities; however, the most recent treatment records are from April 2016. VA treatment records should be obtained on remand. See Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. The AOJ should secure any outstanding VA medical records since April 2016. 2. After obtaining any necessary authorization, attempts must be made to obtain any SSA records regarding the Veteran. 3. The AOJ should afford the Veteran a VA examination to ascertain the severity and manifestations of his service-connected right and left wrist disabilities. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file. The presence of objective evidence of pain, excess fatigability, incoordination, and weakness should also be noted, as should any additional disability due to these factors (including additional limitation of motion). a. The examiner should opine as to whether the right wrist met or more nearly approximate the criteria for ankylosis - "immobility and consolidation of a joint due to disease, injury, surgical procedure" - prior to March 7, 2016, excluding periods of convalescence. See, e.g., August 2011 VA examination report, VA treatment record. If the examiner is unable to provide a retrospective opinion, he or she should clearly explain so in the report. b. The examiner should opine as to whether Veteran's left wrist manifested or more nearly approximate the criteria for ankylosis - "immobility and consolidation of a joint due to disease, injury, surgical procedure" - at any time since April 2011, excluding periods of convalescence. See, e.g., August 2011 VA examination report, VA treatment record. If the examiner is unable to provide a retrospective opinion, he or she should clearly explain so in the report. 4. After undertaking any additional development deemed warranted, the AOJ should readjudicate the Veteran's remaining claims. If the benefits sought on appeal are not granted, the Veteran and his representative should be provided a Supplemental Statement of the Case and afforded the requisite opportunity to respond before the case is returned to the Board. 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 for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ A. S. CARACCIOLO 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).