Citation Nr: 18152942 Decision Date: 11/26/18 Archive Date: 11/26/18 DOCKET NO. 16-54 590 DATE: November 26, 2018 REMANDED Entitlement to an increased rating in excess of 10 percent for degenerative joint disease (DJD) of the left wrist is remanded. Entitlement to a compensable rating for fracture of the distal left 4th metacarpal (claimed as left hand, third knuckle) is remanded. Entitlement to service connection for a back disability is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1981 to December 1985. This matter is before the Board of Veterans’ Appeals (Board) on appeal of a September 2013 rating decision Regional Office (RO) of the Department of Veterans Affairs (VA). The Board notes that the Veteran asserts impairments and limitations in employment as a result of his service-connected disabilities. However, the Veteran does not assert that he is currently unable to sustain and maintain employment as a result of his service-connected disabilities. In fact, the Veteran reports that he is employed but that he is increasingly absent and tardy as a result of his service-connected disabilities. See August 2018 correspondence. As such, the issue of entitlement to a total disability rating based on individual unemployability (TDIU) is not raised. 1. Entitlement to an increased rating in excess of 10 percent for DJD of the left wrist, and entitlement to a compensable rating for fracture of the distal left 4th metacarpal (claimed as left hand, third knuckle) are remanded. In an August 2018 correspondence, the Veteran, through his representative, states that the VA examinations of record are not an accurate examinations of the Veteran’s left wrist and fracture of the distal left 4th metacarpal disabilities. The Veteran asserts a worsening of his left wrist and left finger disabilities. Additionally, the Veteran asserts that the December 2016 VA examinations of the left wrist and left finger are not accurate because the examiners do not find objective evidence of disability, but still find that the Veteran’s wrist and finger disabilities impact his ability to perform any type of occupational task. The Veteran contends that such findings are contradictory, and, moreover, inaccurate given the Veteran’s asserted symptomatology. The Veteran notes the same inaccuracy and inconsistency in the August 2013 VA examination of the Veteran’s left finger. Last, upon review of the May 2013 VA examination of the Veteran’s wrist, the Board notes that the VA examiner indicates flare-ups, but states that flare-ups include the hand not the wrist. Given the medical evidence of record and the Veteran’s contentions, the Board remands these matters for additional VA examinations to clarify the severity of the Veteran’s current left wrist and fracture of the distal left 4th metacarpal. On remand, the VA examination report must clarify any such flare-ups, and in doing so, the report must comply with the requirements in Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). Any contradictory findings must be addressed. 2. Entitlement to service connection for a back disability is remanded. In an August 2018 correspondence, the Veteran, through his representative, requests an additional VA examination to determine the current nature and etiology of the Veteran’s back disability. The Veteran asserts that he had a diagnosis of spasm in service, and that his injury in service caused his current back disability. Specifically, the Veteran states that the examination has “not assessed for what the thirty years of spasm would do to contribute to advancement of the additional degenerative diagnosis.” Moreover, the Veteran contends that the VA examiner reports absence of continued treatment, but states that the VA examiner failed to acknowledge the Veteran’s assertions of continued pain and self-treatment with drinking and over the counter medications. Upon review of the May 2013 VA examination of the Veteran’s back, the Board finds that an additional VA examination and opinion is warranted. The VA examiner opined that the Veteran’s back disability was less likely than not incurred in or caused by the claimed in-service injury, event, or illness, but noted that the claim file was not available for review. Service treatment records from May 1982 indicate complaints of back pain five times a month, strain, and pain getting worse. Service treatment records also note spasms in service. The service treatment records also indicate a fall in service. The VA examination report also indicates imaging studies of the thoracolumbar spine with arthritis indicated; however, the VA examiner does not list a diagnosis on the report and the VA examiner specifically states that there is no significant pathology upon x-ray. Given the medical evidence of record and the Veteran’s assertions, the Board remands this matter for an additional VA examination to determine the current nature and etiology of the Veteran’s back disability. The matters are REMANDED for the following action: 1. Obtain any outstanding VA and/or private treatment records. Should such exist, associate the records with the Veteran’s electronic claims file. 2. After completing directive (1), schedule the Veteran for a VA examination of his left wrist disability. The updated claims file and this remand must be made available to and reviewed by the examiner. The examiner must note that the claims file and this remand have been reviewed. The exam is to clarify the severity of the Veteran’s left wrist. The examiner is directed to complete the following: (a) Conduct all indicated tests and studies, to include range of motion studies. Provide range of motion (ROM) and repetitive ROM findings of the left wrist, expressed in degrees, in (i) active motion; (ii) passive motion; (iii) weight bearing; and (iv) non-weight bearing. If ROM findings are abnormal, determine whether the ROM contributes to functional loss and with what movements the Veteran exhibits pain (i.e. flexion, abduction, etc.). If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she must clearly explain why that is so. (b) Determine whether the Veteran’s left wrist disability results in painful flare-ups, and if so, the frequency and duration of any flare-ups, and whether there is functional loss during the flare-ups. The examiner’s attention is directed to the May 2013 VA examination noting flare-ups. Any discrepancies should be addressed. To the extent possible, the examiner should express any functional loss in terms of additional degrees of limited motion of the Veteran’s digits or hand on repeated use or during flare-ups. If the examination is not being conducted during a flare-up, explain why this is so, and whether, based upon the examiner’s knowledge and observations of the Veteran’s disability, the Veteran exhibits functional loss during a flare-up. The examiner should also determine whether pain, weakness, fatigability, or incoordination significantly limits functional ability with flare-ups, and if possible, describe the ROM during a flare-up. If the examiner is unable to provide the requested opinion, the examiner must explain why that is so. (c) To the extent possible, the examiner should identify any symptoms and functional impairments due to the left wrist disability alone and discuss the effect of the Veteran’s left wrist disability on any occupational functioning and activities of daily living. If the examiner is unable to provide the requested opinion, the examiner must explain why that is so. Generally, as noted by the Veteran, if the VA examiner finds no objective evidence of a disability, but finds functional impairments and limitations, such findings must be explained in detail. (d) Indicate whether there is ankylosis, favorable or unfavorable, of the left wrist. Indicate whether there is any effect on the function of the hand generally. 3. After completing directive (1), schedule the Veteran for a VA examination of his left 4th metacarpal. The updated claims file and this remand must be made available to and reviewed by the examiner. The examiner must note that the claims file and this remand have been reviewed. The exam is to clarify the severity of the Veteran’s left 4th metacarpal. The examiner is directed to complete the following: (a) Conduct all indicated tests and studies, to include range of motion studies. Provide range of motion (ROM) and repetitive ROM findings of the left 4th metacarpal, expressed in degrees, in (i) active motion; (ii) passive motion; (iii) weight bearing; and (iv) non-weight bearing. If ROM findings are abnormal, determine whether the ROM contributes to functional loss and with what movements the Veteran exhibits pain (i.e. flexion, abduction, etc.). If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she must clearly explain why that is so. (b) Determine whether the Veteran’s finger disability results in painful flare-ups, and if so, the frequency and duration of any flare-ups, and whether there is functional loss during the flare-ups. To the extent possible, the examiner should express any functional loss in terms of additional degrees of limited motion of the Veteran’s digits or hand on repeated use or during flare-ups. If the examination is not being conducted during a flare-up, explain why this is so, and whether, based upon the examiner’s knowledge and observations of the Veteran’s disability, the Veteran exhibits functional loss during a flare-up. The examiner should also determine whether pain, weakness, fatigability, or incoordination significantly limits functional ability with flare-ups, and if possible, describe the ROM during a flare-up. If the examiner is unable to provide the requested opinion, the examiner must explain why that is so. (c) To the extent possible, the examiner should identify any symptoms and functional impairments due to the left finger disability alone and discuss the effect of the Veteran’s left finger disability on any occupational functioning and activities of daily living. If the examiner is unable to provide the requested opinion, the examiner must explain why that is so. Generally, as noted by the Veteran, if the VA examiner finds no objective evidence of a disability, but finds functional impairments and limitations, such findings must be explained in detail. (d) Indicate whether there is ankylosis, favorable or unfavorable, of the finger. Indicate whether there is any effect on the function of the hand generally. 4. After completing directive (1), schedule the Veteran for a VA examination to ascertain the nature and etiology of his back disability. The claims file must be made available to and reviewed by the examiner. A note that it was reviewed should be included in the report. After reviewing the claims file and examining the Veteran, the examiner should answer the following questions: a) Does the Veteran have a current back disability? The examiner’s attention is directed to the Veteran’s May 1982 service treatment records, which indicate complaints of back pain five times a month, strain, and pain getting worse. Service treatment records also note spasms and a fall in service. The examiner’s attention is also directed to May 2013 VA examination report noting imaging studies of the thoracolumbar spine with arthritis indicated. The VA examiner should address any discrepancies. b) For any diagnosis noted in (a), is it at least as likely as not that the Veteran’s back disability was incurred in or is otherwise related to the Veteran’s service, to include his complaints and treatment of back pain inservice, and to include any asserted fall in service? Specifically, the Veteran states that the examination has “not assessed for what the thirty years of spasm would do to contribute to advancement of the additional degenerative diagnosis.” Moreover, the Veteran states that he has experienced continued pain and that he self-treated with drinking and over the counter medications. Such assertions should be acknowledged and addressed by the VA examiner. A complete explanation must be provided for all opinions. The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as against it. In rendering the requested opinion, the examiner is instructed to specifically acknowledge the Veteran’s assertions, to include the Veteran assertions of symptomatology since service. The examiner should view the Veteran as a reliable historian as to his service and his report of his activities in service. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010). (Continued on the next page)   5. After completing the above, and any other necessary development, the claims remaining on appeal must be readjudicated in light of all pertinent evidence and legal authority. If any benefits sought are not granted, issue the Veteran an appropriate supplemental statement of the case (SSOC). Michael Pappas Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Tunis, Associate Counsel