Citation Nr: 1805577 Decision Date: 01/29/18 Archive Date: 02/07/18 DOCKET NO. 14-17 167 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to an initial rating in excess of 20 percent disabling for right thumb, residuals post-operative fusion. REPRESENTATION The Veteran represented by: Robert W. Gillikin, II, Attorney at Law ATTORNEY FOR THE BOARD K. Foster, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1968 to June 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. Jurisdiction has since been transferred to the Roanoke, Virginia RO. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran, if further action is required. REMAND The Board finds that additional development is needed prior to adjudication of the Veteran's claim. Specifically, the Board finds that the Veteran should be afforded a new VA examination regarding the issue on appeal. The Veteran was afforded an examination in November 2014 regarding his right thumb disability. The examiner noted no limitation of motion or evidence of painful motion for any of the Veteran's fingers or thumbs and, therefore, conducted no range of motion testing. However, the examiner also noted ankylosis of the thumb, which results in limitation of motion of other digits or interference with overall function of the hand. Specifically, the ankylosis results in the Veteran having difficulty gripping with his right (dominant) hand. The Board finds these determinations to be internally inconsistent. In addition, in the January 2014 notice of disagreement (NOD), the Veteran's attorney argued that the Veteran's right thumb rating should be increased because the Veteran's middle finger is damaged and results in limited range of motion and involuntary curling or triggering of the finger. While the Veteran's middle finger is not service-connected, the Board notes that the problems identified by the Veteran's attorney were not addressed in the December 2014 examination. 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). In light of the above, the Board finds that a new VA examination is merited. Finally, the Board finds that the examination does not comply with the precedential decision of the United States Court of Appeals for Veterans Claims (Court) in Correia v. McDonald, 28 Vet. App. 158 (2016). In that decision, the Court found the final sentence of 38 C.F.R. § 4.59, created a requirement that whenever possible in the cases of joint disabilities, "[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint." 38 C.F.R. § 4.59. The Board will remand to afford the Veteran an examination that complies with the Court's decision in Correia. Accordingly, the appeal is REMANDED for the following action: 1. After securing any necessary consent forms from the Veteran, obtain any outstanding treatment records, to include any VA and/or private treatment records, pertaining to the claimed disability on appeal. Attempts to obtain such records should be documented in the claim file. If identified records could not be obtained, this should be noted in the claim file. 2. After completing the above, schedule the Veteran for a new VA examination to evaluate the current level of severity of his right thumb disability. The claim folder and all pertinent treatment records should be made available to the examiner for review, and review of such records should be noted in any subsequent report. All necessary diagnostic testing should be performed. The examiner is asked to specifically provide range of motion testing (ROM) for the right thumb for active motion, passive motion, weight-bearing, and nonweight-bearing, if motion is possible. Full ROM testing also must be conducted on the opposite joint unless the opposite joint is damaged, which includes any disorder that would make the joint in question abnormal. If the opposite joint is determined to be damaged, and no ROM on testing is conducted, this must be explained in the report. In addition, for both the right thumb and opposite joint the examiner must discuss pain for ROM movements on active, passive, and repetitive use testing. The examiner is asked to address the following questions: (a) Are any ROM movements painful on active, passive, and repetitive use testing? If yes, identify whether active, passive, and repetitive use. (b) If yes (there are painful movements), does the pain contribute to functional loss or additional limitation of ROM? Please further describe the functional loss or additional limitation of ROM. (c) If no (the pain does not contribute to functional loss or additional limitation of ROM), explain why the pain does not contribute. In addition, for both the right thumb and opposite joint the examiner must discuss pain when used in weight-bearing or in nonweight-bearing. The examiner is asked to address the following questions: (a) Is there pain when the joint is used in weight-bearing or nonweight-bearing? If yes, identify whether weight-bearing or nonweight-bearing. (b) If yes (there is pain when used in weight-bearing or nonweight-bearing), does the pain contribute to functional loss or additional limitation of ROM? Please further describe these limitations. (c) If no (the pain does not contribute to functional loss or additional limitation of ROM), explain why the pain does not contribute. In addition, the examiner is asked to address limitation of motion of other digits, as well as interference with overall function of the hand as a result of the Veteran's service-connected right thumb disability. The examiner is asked to conduct joint testing that complies with the Court's decision in Correia, as outlined in the directives above. The examiner is asked to specifically address the December 2014 examiner's contention that the Veteran's right thumb ankylosis results in the Veteran having difficulty gripping with his right (dominant) hand. The examiner is also asked to address the contention that the Veteran's middle finger is damaged and results in limited range of motion and involuntary curling or triggering of the finger. Finally, the examiner should also address whether amputation is warranted. If upon completion of the above action the issue is denied, the case should be returned to the Board after compliance with appellate procedures. 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 appeal must be afforded expeditious treatment. The law requires that all issues 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. §§ 5109B, 7112 (2012). _________________________________________________ E. I. VELEZ 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).