Citation Nr: 18154764 Decision Date: 11/30/18 Archive Date: 11/30/18 DOCKET NO. 17-62 140 DATE: November 30, 2018 REMANDED Entitlement to a compensable rating for residuals of a right hand fifth metacarpal fracture (right hand disability) is remanded. REASONS FOR REMAND The Veteran, who is the appellant in this case, served on active duty from January 1960 to March 1962 and from April 1962 to March 1976. He served in the Republic of Vietnam and received the Combat Infantryman Badge, a Purple Heart Medal, and a Bronze Star Medal. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. In February 2018, the Board remanded the claim seeking a compensable rating for residuals of a right hand fifth metacarpal fracture (right hand disability) to obtain additional treatment records, provide the Veteran with an updated VA examination to ascertain the nature and current severity of the disability. In July 2018, the Veteran was afforded a VA examination, and a report of that examination has been associated with the claims file. The RO reviewed the claim and denied an increased rating, as reflected in its October 2018 Supplemental Statement of the Case. The claim now returns to the Board for further appellate review. The Board finds that an additional remand is necessary to provide the Veteran with an adequate VA examination. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the Board’s remand order. Stegall v. West, 11 Vet. App. 268, 270-71 (1998); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide an examination or obtain an opinion, it must ensure that the examination or opinion is adequate). Subsequent to the Board’s February 2018 remand, the Veteran underwent a VA hand and finger conditions examination in July 2018 to ascertain the nature and severity of his service-connected right-hand disability. Nevertheless, despite the Board’s clear instructions in the remand directives that the examiner specifically indicate whether the Veteran has arthritis of the right hand, and if so, whether it is a residual of the previous fracture, the examiner noted that imaging studies of the Veteran’s right hand were not performed and that diagnostic testing “is not clinically indicated at this time.” See VA hand and finger conditions examination report dated July 3, 2018 at pgs. 8-9. Therefore, given the examiner’s failure to comply with the Board’s explicit directives, an additional remand is necessary prior to making a decision on the merits of the claim. As the February 2018 remand order was not complied with, and in accordance with Stegall, remand is warranted. The Board finds that the claim must be remanded to provide a VA examination which addresses the questions set forth below. The matter is REMANDED for the following action: 1. Ensure that all outstanding VA treatment records are associated with the claims file. 2. Then, provide the Veteran with a VA examination with an appropriately qualified examiner other than the individual who conducted the July 2018 examination, to determine the current nature and severity of the Veteran’s service-connected residuals of a right hand fifth metacarpal fracture (right hand disability). The Board’s remand directives herein, must be transmitted verbatim to the examiner and included in the examination report. (a) In addition to reviewing the entire claims file, the examiner’s attention is directed to the following records: In-service x-ray report of right hand/5th metacarpal fracture dated January 29, 1973 and March 10, 1973 follow-up (VBMS 01/07/1977 “STR – Medical” PDF pgs. 9-10); Notice of Disagreement (VBMS 11/26/2013 “NOD” PDF pg. 2); Statement in Support of Claim (VBMS 05/12/2015 “VA 21-4138 Statement In Support of Claim”); Appeal to the Board of Veterans’ Appeals VA Form 9 (VBMS 11/28/2017 “Form 9” PDF pg. 2). (b) Then, obtain current x-rays images of the Veteran’s right hand, ensuring that imagery of sufficient quality and detail is obtained to clearly determine the current nature and severity of disability(s) involving the Veteran’s right hand and fingers. (c) Specifically, state whether the following are present on examination and/or in CURRENT X-RAY IMAGES, and if so, whether it is considered a residual of the previous fracture: (i) decreased grip strength; (ii) arthritis in the right hand; and (iii) any disability in the adjacent fingers. (d) Test the range-of-motion (ROM) in active motion, passive motion, weight-bearing, and nonweight-bearing, and specifically describe the point at which pain begins during ROM testing and any additional functional limitations due to pain. The examiner’s report should adequately address each of the aforementioned questions. A complete rationale should be provided for any proffered opinions. 3. Thereafter, readjudicate the claim on appeal. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Brad Farrell, Associate Counsel