Citation Nr: 18142624 Decision Date: 10/16/18 Archive Date: 10/16/18 DOCKET NO. 16-12 384 DATE: October 16, 2018 REMANDED Entitlement to a compensable rating for a right index finger disability. REFERRED The issue of a total disability rating based on individual unemployability (TDIU) was raised in an October 2004 statement and is referred to the Agency of Original Jurisdiction (AOJ) for appropriate action. REASONS FOR REMAND The Veteran served on active duty in the United States Army from July 1993 to November 1995. The Board thanks the Veteran for his service. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an April 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). 1. Entitlement to a compensable rating for a right index finger disability Under 38 C.F.R. § 19.31, the RO will provide a supplemental statement of the case (SSOC) to the appellant and his/her representative when there are any material changes in or additions to the information included in the SOC or any prior SSOC, to include receipt of additional pertinent evidence. While 38 U.S.C. § 7105(e) provides an automatic waiver of initial AOJ review if a veteran submits evidence to the RO or the Board with, or after submission of, a Substantive Appeal, it does not apply if pertinent evidence is received prior to transfer of the case to the Board. Additionally, a waiver of AOJ review request is not appropriate. Therefore, the case must be remanded for a new SSOC in such instances. 38 C.F.R. §§ 19.31, 19.37(a). The Veteran was issued an SOC in October 2015. In January and February 2016, the Veteran provided updated medical records to the RO reflecting recent occupational therapy he had undergone for his right index finger. The records included strength testing, range of motion measurements, and other relevant information about potential functional impairment. No SSOC was issued following receipt of the records, and the Veteran’s Form 9 was received in March 2016. Accordingly, because the relevant records were received before the Veteran’s substantive appeal, but have not been adjudicated by the RO, the claim must be remanded for RO consideration. The Board additionally notes that it is necessary to obtain a new VA examination on remand. One VA examination is of record during the period on appeal, dated March 2015. In his May 2015 Notice of Disagreement, the Veteran stated that the examiner failed to take objective range of motion or strength measurements during the exam, relying instead on x-rays of the finger and a verbal history of the Veteran’s prior fracture. The Board finds that the Veteran’s statements tend to be corroborated by the other medical evidence of record. While the March 2015 examination found that there was no objective evidence of functional loss, pain on movement, or any amount of limitation of motion, all other medical evidence of record reflects objective evidence of pain, swelling, loss of strength, and decreased motion of individual finger joints. Accordingly, the March 2015 examination is inadequate for rating purposes. While the medical records submitted by the Veteran in 2016 are relevant to demonstrate functional loss, they do not appear to address some specific measurements necessary for rating under Diagnostic Code 5229, which addresses limitation of motion of the index or long finger and may be most relevant to the Veteran’s condition. Accordingly, a new examination is needed. The matter is REMANDED for the following action: 1. Associate with the claims file any outstanding VA and non-VA treatment records related to the right index finger, including records of VA treatment from April 2015 forward. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected right index finger disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. a. The examination should record the results of range of motion (1) on both active and passive motion, (2) in weight-bearing and non-weight-bearing, and (3) of the opposite undamaged joint (to the extent applicable/possible). If the examiner is unable to conduct any aspect of the required testing he or she should clearly explain why that is so. b. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. c. To the extent possible, the examiner should identify any symptoms and functional impairments due to the right index finger disability alone and discuss the effect of the Veteran’s disability on any occupational functioning. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 3. Readjudicate the claim for entitlement to a compensable rating for the Veteran’s right index finger disability, to include consideration of the medical records provided by the Veteran in January and February 2016, as well as any other relevant evidence added to the claims file since the most recent SOC. If the benefit sought is not granted, provide the Veteran with an SSOC. 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. 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. §§ 5109, 7112. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Anderson