Citation Nr: 18145994 Decision Date: 10/30/18 Archive Date: 10/30/18 DOCKET NO. 10-20 238 DATE: October 30, 2018 REMANDED The claim of entitlement to an increased (compensable) disability rating for posttraumatic arthritis of the left fourth (ring) finger prior to October 18, 2010, and from December 1, 2010, to include on an extra-schedular basis pursuant to 38 C.F.R. § 3.321(b), is remanded. REASONS FOR REMAND The Veteran had active duty service from October 1978 to October 1981. This appeal before Board of Veterans’ Appeals (Board) arose from a January 2010 rating decision in which a Department of Veterans Affairs (VA) Regional Office (RO), inter alia, continued a noncompensable (zero percent) disability rating for posttraumatic arthritis of the left fourth (ring) finger. The Veteran disagreed with the RO’s decision and this appeal ensued. In April 2010, the Veteran testified during a hearing before a Decision Review Officer at the RO. In January 2012, he testified during a Board videoconference hearing before the undersigned Veterans Law Judge. Transcripts of both hearings are of record. As for characterization of the claim on appeal, the Board notes that, in a September 2011 rating decision, the RO awarded a temporary total rating (TTR) for the left fourth (ring) finger disability, from October 18, 2010, through November 30, 2010, based on surgical or other treatment necessitating convalescence. As the noncompensable rating was continued from December 1, 2010, the claim has been characterized to exclude from consideration the period during which a TTR was in effect. As for the matter of representation, the Board notes that the Veteran was previously represented in this matter by the Veterans Service Organization (VSO), Disabled American Veterans. However, in August 2018, the Veteran submitted a complete VA Form 21-22, Appointment of VSO as Claimant's Representative, in favor of Veterans of Foreign Wars of the United States. The Board recognizes the change in representation. The Board previously remanded the claim on appeal for further evidentiary development in April 2012, November 2015, and April 2017. Unfortunately, the Board finds that further agency of original jurisdiction (AOJ) of the claim on appeal is warranted, even though such will, regrettably, further delay an appellate decision on this matter. Prior remands of this appeal have focused on obtaining an adequate VA examination to assess the severity of the Veteran’s left fourth finger disability, and eliciting an AOJ determination as to whether referral of the claim to VA’s Director of Compensation Service for consideration of an extra-schedular rating was warranted. Since the prior remand, additional medical evidence has been associated with the claims file suggesting a possible increase in severity of the left fourth finger disability. Notably, the report of a March 2017 VA neurology consultation notes that the Veteran felt tingling into his fingers, especially on the left side. Also, a July 2017 VA orthopedic surgery report noted that the Veteran worked as an IT contractor for VA, and that he reported that he could no longer type very quickly because his fingers were clumsy. Additionally, whereas the Veteran has contended and medical evidence indicates that the left fourth finger disability is affecting the entire left hand, the Board notes that a May 2017 VA treatment report noted that he had worsening feelings of weakness in his hands. The Board further notes that while a January 2016 addendum indicates that the Veteran’s left ring finger disability impacted the function of his left hand, the examiner did not fully describe the nature and extent of left hand impairment due to the left fourth finger disability. Such description is vital to proper adjudication of the increased rating claim. Thus, where the evidence not only indicates that the severity of the left fourth finger disability may have increased since prior examination in June 2014, but also where the evidence is inadequate for determining the severity of the left fourth finger disability in terms of its effect on left hand function, the Board finds that remand of the claim is necessary in order to afford the Veteran a contemporaneous VA examination to fully assess the severity of the left fourth finger disability. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). The Board also notes that the Veteran has historically reported having periodic swelling of the left fourth finger which may represent flare-ups of the service-connected disability. Thus, a precedential opinion of the United States Court of Appeals for Veterans Claims (Court), in Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), is potentially relevant to the Veteran’s claim. The Court held in Sharp that where reports of flare-ups of joint disability is present, the examination reports must describe the frequency, duration, characteristics, severity, and functional loss due to flare-ups. This description has not been provided for the Veteran’s left fourth finger disability. Hence, further examination and clinical findings are needed to evaluate the disability under consideration. Prior to undertaking action responsive to the above, to ensure that all due process requirements are met and that the record is complete, the AOJ should undertake appropriate action to obtain and associate with the claims file all outstanding, pertinent records. As for VA records, the claims file currently includes VA outpatient treatment records dated through January 2018. Accordingly, the AOJ should obtain all outstanding records of VA evaluation and/or treatment of the Veteran dated since January 2018. The AOJ should also give the Veteran another opportunity to provide additional information and/or evidence pertinent to the claim on appeal (particularly, regarding private (non-VA) treatment), explaining that he has a full one-year period for response. See 38 U.S.C. § 5103(b)(1); but see also 38 U.S.C. § 5103(b)(3) (clarifying that VA may decide a claim before the expiration of the one-year notice period). Thereafter, the AOJ should attempt to obtain any additional evidence for which the Veteran provides sufficient information and, if necessary, authorization, following the procedures prescribed in 38 C.F.R. § 3.159. The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159. However, identification of specific actions requested on remand does not relieve the AOJ of the responsibility to ensure full VCAA compliance. Hence, in addition to the actions requested above, the AOJ should also undertake any other development and/or notification action deemed warranted prior to adjudicating the claim on appeal—to particularly include referral of the claim for extra-schedular consideration, if appropriate. In this regard, the record indicates that the Veteran has been working as an IT contractor, and that his ability to type has been limited, due to clumsiness due to his finger. If such referral is not deemed warranted, the AOJ must specifically so state, and explain why. Adjudication of the claim should include consideration of whether staged rating of the disability—assignment of different ratings for distinct periods of time, based on the facts found—is appropriate.   This matter is hereby REMANDED for the following action: 1. Obtain complete copies of all outstanding records of VA evaluation and/or treatment of the Veteran, dated since January 2018. Follow the procedures set forth in 38 C.F.R. § 3.159(c) regarding requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. Send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information concerning, and, if necessary, authorization to enable VA to obtain, any additional evidence pertinent to any remaining claim(s) on appeal that is not currently of record. Specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, all outstanding, pertinent private (non-VA) records. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claims within the one-year period). 3. If the Veteran responds, assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. After all records and/or responses received are associated with the claims file, arrange for the Veteran to undergo VA examination of his left fourth finger and left hand by an appropriate physician. The contents of the entire, electronic claims file, to include a complete copy of this REMAND, must be made available to the designated individual, and the examination report should reflect consideration of the Veteran’s documented medical history and assertions. All indicated tests and studies should be accomplished (with all findings made available to the physician prior to the completion of his or her report), and all clinical findings should be reported in detail. Considering both the examination results and the Veteran’s documented history and assertions, the physician should clearly identify all manifestations of the left fourth (ring) finger disability. The physician should specifically identify the presence of any left fourth finger ankylosis, and state whether such ankylosis is favorable or unfavorable. The examiner should also indicate whether the Veteran experiences s other symptoms associated with the left fourth finger disability—to include pain on motion, weakness, excess fatigability, and/or incoordination—and fully describe the effects of such manifestations on the function of the left hand. Such should include a description of the frequency, duration, characteristics, severity, and functional loss during flare-ups of the disability and with repeated use. If the examination is not conducted during a flare-up, based on examination results and the Veteran’s documented history and assertions, the physician should indicate whether, and to what extent, the Veteran experiences likely functional loss due to pain and/or any of the other symptoms noted above during flare-ups. All examination findings/testing results, along with complete, clearly-stated rationale for the conclusions reached, must be provided. 5. After associating with the claims file all records and/or responses received, conduct any additional necessary development on the matter of entitlement to a compensable disability rating for posttraumatic arthritis of the left fourth (ring) finger prior to October 18, 2010, and since December 1, 2010, on an extra-schedular basis pursuant to 38 C.F.R. § 3.321(b)—to include referral of the claim to VA’s Director of Compensation for such extra-schedular consideration. If such referral is deemed not warranted, clearly so state, and explain why. 6. Then, adjudicate the higher rating claim on appeal considering all pertinent evidence (to include all evidence added to the electronic claims file since the last adjudication) and legal authority (to include consideration of whether staged rating of the disability is appropriate). 7. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268, 271 (1998). JACQUELINE E. MONROE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Michael Wilson, Counsel