Citation Nr: 1806266 Decision Date: 01/31/18 Archive Date: 02/07/18 DOCKET NO. 12-34 940 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to compensation under 38 U.S.C. § 1151 for residuals of a right thumb injury. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD I. Warren, Associate Counsel INTRODUCTION The Veteran had active duty service from March 1966 to November 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2013 rating decision by the Department of Veteran Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. In November 2015, the Veteran testified before the undersigned in a videoconference hearing, solely on the issue of entitlement to service connection for posttraumatic stress disorder (PTSD). During the hearing, the Veteran and his representative indicated that the issue of compensation for a right thumb injury under 38 U.S.C. § 1151 was also on appeal, but they did not want to provide testimony on this issue. In May 2016, the Board remanded the appeal for further development. While on appeal, the RO granted service connection for PTSD. Because this was a full grant of the benefit sought, this issue is no longer on appeal. Unfortunately, for reasons discussed below, the Board finds that the directives of the May 2016 Remand have not been substantially complied with regarding the issue of compensation for a right thumb injury under 38 U.S.C. § 1151. See Stegall v. West, 11 Vet. App. 268 (1998); 38 U.S.C. § 5103A (West 2012); 38 C.F.R. § 3.159 (2017). The appeal is again REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND While the Board regrets additional delay, review of the record reveals that additional development is needed to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A (West 2012); 38 C.F.R. § 3.159 (2017). In a statement from the Veteran's representative, dated in December 2012, it is alleged that the Veteran injured his thumb in August 2012 at the Coatesville VA medical center. He was examined and told that nothing was wrong with the digit. Seven months later, he was informed that he had a torn ligament [in the thumb] and was told to put a brace on his hand due to the time that had passed before the condition was properly diagnosed. He alleges that the failure to diagnose the initial injury makes VA responsible for the current disability and he claims compensation for this disability under 38 U.S.C. §1151. In May 2016, the Board remanded the issue of compensation for a right thumb injury under 38 U.S.C. § 1151, to obtain a VA examination with a hand specialist, and to secure a medical opinion to address the nature and history of the Veteran's right thumb injury. In a November 2016 VA hand and finger examination, the examiner diagnosed the Veteran with minimal osteoarthritis of the first interphalangeal joint, based on a 2012 X-ray of the right side. The Veteran reported right thumb pain, which the examiner noted started in 2009 as he was playing cards at the Coatesville VAMC. He stated that someone grabbed his right thumb, pulling it backward. The examiner indicated there was no history of fracture or dislocation of the right thumb. The results of a May 2008 X-ray revealed that the Veteran had some discomfort closing his fist tight or gripping objects. The examiner noted "r/o fx or chip bone in the right third finger," but found no fracture or joint space abnormality of the right third finger. The results of the August 2012 X-ray revealed no fracture or dislocation, but there was minimal osteoarthritis of the first interphalangeal joint, manifested by a tiny osteophyte. There was osseous spurring of the first metacarpal on the radial side, likely representing an enthesophyte at the radial collateral ligament attachment. The examiner opined against a relationship between the Veteran's current right hand condition and his period of active service, which ended in 1968. The examiner noted that his separation examination and medical history reports were silent for a right thumb or right hand condition. The Board notes that the examiner did not fully address the May 2016 Remand directives and only made a determination for direct service connection. There was no fully informed opinion regarding the Veteran's right thumb disability under 38 U.S.C. §1151. As the May 2016 remand directives were not fully complied with, the Board is required to remand the appeal. Stegall. A new VA examination and opinion must be obtained. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran an opportunity to identify any outstanding private treatment records relevant to his claimed disability. After obtaining necessary authorization from the Veteran, all outstanding records should be obtained. 2. After obtaining any outstanding records, provided the Veteran with a new VA examination, with a hand specialist, to determine the current nature/residuals of any right thumb injury. The examiner should note in the report that the entire electronic claims file has been reviewed, including this Remand. All tests deemed necessary should be concluded, and the results reported in detail. Following a review of the claims file, the examiner should obtain detail and offer an opinion on the following: (a) Obtain an extensive medical history from the Veteran regarding the nature of the original injury to his right thumb for which he is claiming benefits. The examiner should obtain the date, as well as the VA medical facility, that the Veteran is alleging the original right thumb injury took place; and obtain the same for each relevant, additional injury/disability thereafter. (b) Is it at least as likely as not that the Veteran has an additional right thumb injury as a result of treatment or examination provided by VA in 2012, to include the Veteran's allegation that an additional right thumb disability occurred because VA failed to properly diagnose the initial injury? (c) If additional disability is shown, was such additional disability the result of, or caused by, a lack of proper care or negligent treatment on the part of VA caregivers? Alternatively, did any action or inaction by VA caregivers cause additional disability or constitute carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault? If so, did VA fail to exercise the degree of care that would be expected of a reasonable health care provider? (d) If additional disability is shown, was the additional disability due to an event not reasonably foreseeable? The examiner should additionally address: * The August 2013 VA examination report; * The October 2013 VA examiner's opinion; * The findings in the November 2016 VA examination report, to include discussion of the results of the Veteran's May 2008 and August 2012 X-rays of his right hand and; * Any assertions or contentions made by the Veteran regarding his right thumb injury, to include his allegation that, after he injured his thumb in August 2012 at the Coatesville VA medical center, he was examined and told that nothing was wrong with the digit; then, seven months later, he was informed that he had a torn ligament [in the thumb] and was told to put a brace on his hand due to the time that had passed before the condition was properly diagnosed. He alleges that the failure to diagnose the initial injury makes VA responsible for the current disability. All opinions must be supported by a clear rationale and reasoning behind the opinion. The examiner is reminded that there is no need to be 100 percent sure; but the standard is to determine whether it is as likely as not (a 50 percent or more evaluation) with the underlying rationale. 3. After completing the above actions, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a Supplemental Statement of the Case. The Veteran has the right to submit additional evidence and argument on the matter 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. §§ 5109B, 7112 (West 2012). _________________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (West 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).