Citation Nr: 1806851 Decision Date: 02/02/18 Archive Date: 02/14/18 DOCKET NO. 14-12 774 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to an increased evaluation in excess of 10 percent for left wrist disability, claimed as scaphoid fracture, left wrist, with posttraumatic degenerative changes. REPRESENTATION Veteran represented by: Oregon Department of Veterans' Affairs WITNESSES AT HEARING ON APPEAL Veteran and T.H. ATTORNEY FOR THE BOARD M. M. Lunger, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1983 to March 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. A Board hearing was held in October 2016. A transcript is of record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Veteran is currently service-connected for a left wrist disability rated as 10 percent disabling. The Veteran testified at his October 2016 hearing that his left wrist disability had worsened since his last VA examination in October 2010 and that he was now experiencing symptoms such as pain and tingling sensations in his left hand, fingers, and wrist. While the mere passage of time does not in and of itself warrant a new VA examination, the Board acknowledges that the Veteran's left wrist disability has not been evaluated in over 7 years and that recent evidence indicates that his condition may have worsened. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). In addition to being remote in time, the Board finds that the October 2010 examination is also inadequate because it did not include complete findings as to the Veteran's functional impairment of the left wrist due to pain on active and passive motion, and during weight-bearing and nonweight bearing. 38 C.F.R. § 4.59 (2015); Correia v. McDonald, 28 Vet. App. 158, 168-69 (2016). The Board also notes that since the Veteran's last examination, the United States Court of Appeals for Veterans' Claims (Court) has held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). The Court also held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. Id. Based on the foregoing, a new VA examination is needed in order to ensure that the VA's duty to assist is met. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board also notes that the most recent VA treatment records associated with the Veteran's electronic claims file are dated February 2014. On remand, any outstanding VA records should be obtained and associated with the file and the Veteran should be provided an opportunity to submit any recent, relevant private medical records. Accordingly, the case is REMANDED for the following action: 1. Obtain all outstanding, pertinent VA treatment records and associate them with the file. If any identified records are not obtainable (or none exist), the Veteran and his representative should be notified and the record clearly documented. 2. Provide the Veteran an opportunity to submit any outstanding private treatment records relating to the current nature and severity of his left wrist disability. Provide the Veteran with the appropriate authorization for release form(s). For any outstanding private treatment records identified and authorized by the Veteran, make at least two (2) attempts to obtain such records. All attempts made must be documented in the electronic file, to include the unavailability of any identified records. For any identified records that are not obtained, notify the Veteran of such and provide him with an opportunity to submit those records directly. 3. Schedule the Veteran for an appropriate VA examination to determine the current nature and severity of his service-connected left wrist disability, to include any functional effects. The examination(s) must address the joints, and vascular and neurological systems. The Veteran's file should be made available to and be reviewed by the examiners, and (s)he must indicate whether such review was accomplished. The examiner should provide findings and opinions as to the following: a) The examiner should determine the range of motion of the Veteran's left wrist, in degrees. Range of motion testing must include both active and passive motion, as well as in weight-bearing and nonweight-bearing conditions, and the range of the opposite undamaged right wrist. It should be indicated whether and at what point during the Veteran's range of motion the Veteran experiences any limitation of motion that is specifically attributable to pain. Further, the degree of additional range of motion loss or favorable or unfavorable ankylosis due to pain on use, weakened movement, excess fatigability, or incoordination, and flare-ups should be indicated. b) The examiner should consider the Veteran's reported left wrist symptoms, to include numbness, tingling, and pain and provide an opinion as to whether any reported symptoms are manifestations of a disability separate and distinct from the service-connected left wrist disability, including but not limited to vascular and/or neurological disabilities. c) If any additional separate and distinct disabilities (including, but not limited to vascular and/or neurological disabilities) of the left wrist are identified, the examiner must list each separate disability. d) For each additionally identified disability of the left wrist, please provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any additional left wrist disability, including but not limited to a vascular and/or neurological disability that is separate and distinct from the service-connected left wrist disability is proximately due to or the result of the service-connected left wrist disability. e) For each additionally identified disability of the left wrist, please provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any additional left wrist disability, including but not limited to a vascular and/or neurological disability that is separate and distinct from the service-connected left wrist disability is permanently worsened beyond normal progression (aggravated) by his service-connected left wrist disability. Aggravation is defined as a permanent worsening beyond the natural progression of the disease or disability. A complete rationale for any opinions expressed should be set forth. If the examiners cannot provide an above opinion without resorting to speculation, (s)he should explain why an opinion cannot be provided (e.g. lack of sufficient information/evidence, the limits of medical knowledge, etc.). 5. Then, readjudicate the appeal. If any benefit sought is not granted in full, furnish the Veteran and his representative a supplemental statement of the case (SSOC) and allow an appropriate period of time for response before returning the case to the Board. 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.A. §§ 5109B, 7112 (West 2014). _________________________________________________ DONNIE R. HACHEY Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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).