Citation Nr: 1808540 Decision Date: 02/09/18 Archive Date: 02/20/18 DOCKET NO. 12-33 398 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to service connection for residuals of bilateral broken thumbs. REPRESENTATION Veteran represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD B. G. LeMoine, Associate Attorney INTRODUCTION The Veteran served on active duty from August 1969 to February 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a May 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. This case was previously remanded by the Board in August 2016. The case has been returned to the Board for review. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Board finds that further development is necessary before a decision on the merits may be made regarding the issue on appeal. In August 2016, the Veteran's claim was remanded, in part, to obtain a VA examination to determine the nature and etiology of the Veteran's bilateral thumb disability. The VA examiner was directed to address the Veteran's report of falling and breaking his thumbs during active service. The Board remand further noted that the Veteran stated that his bilateral thumb injury occurred in January 1971 and that his service treatment records reflect that he was treated for a right hand injury in January 1971. The Veteran was provided a VA examination in January 2017. The VA examiner reviewed the record, interviewed the Veteran and conducted an in-person examination. The Veteran reported that he slipped and fell during his active service, injuring his bilateral thumbs. The Veteran further reported that his current symptoms began in May 1972. The VA examiner opined that the Veteran's bilateral thumb disability was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. As rationale, the VA examiner stated that there is no objective medical evidence in the Veteran's service treatment records that could establish a direct relationship between his current bilateral thumb condition and his military service. The VA examiner further stated that the Veteran reported that the injury occurred in May 1972, after he separated from active duty. However, the January 2017 VA examiner did not discuss the Veteran's reported January 1971 in-service injury or the notation of a right hand injury in his service treatment records as directed by the August 2016 Board remand. Compliance with remand directives is not discretionary and the Board errs as a matter of law when it fails to ensure remand compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). Additionally, the VA examiner stated that during the VA examination the Veteran reported that the bilateral thumb injury occurred in May 1972. However, a review of the January 2017 VA examination reflects that the Veteran stated his current symptoms began in May 1972 but that the original injury occurred during his active service. As the VA examiner did not address the Veteran's in-service injury noted in his service treatment records or his reports that he broke his bilateral thumbs during active service, the Board finds that the January 2017 VA examination is inadequate for decision making purposes. See Barr v. Nicholson, 21 Vet. Ap. 303, 312 (2007). Accordingly, remand is required for a VA addendum opinion. Additionally, in a November 2016 Statement in Support of Claim, the Veteran reported that he has received treatment at the Phoenix, Arizona VA Health Care System for 30 years. However, the earliest VA treatment records in the Veteran's file are from October 2001. VA treatment records, even if not in the claims file, are considered part of the record on appeal because they are within VA's constructive possession. See 38 U.S.C. § 5103A (2012); Bell v. Derwinski, 2 Vet. App. 611 (1992). On remand, updated VA records, as well as any other relevant VA treatment records identified by the Veteran, must be obtained and associated with the record. Accordingly, the case is REMANDED for the following action: 1. Obtain all outstanding treatment records relevant to the matter being remanded, to include from the Phoenix, Arizona VA Health Care system, to include prior to October 2001. 2. Forward the record and a copy of this remand to the examiner who conducted the January 2017 VA examination, or if the examiner is unavailable, another suitably qualified examiner, for completion of an addendum opinion. If the examiner determines that another in-person examination of the Veteran is required to provide the below-requested information, then such an examination should be scheduled. Following review of the record, the examiner should express an opinion as to: a) Whether it is at least as likely as not (50 percent or greater probability) that any bilateral thumb disability is related to the Veteran's active service. The examiner should indicate that the record was reviewed. A complete rationale must be provided for all opinions given. The examiner should address the January 1971 service treatment record indicating a right hand injury and the Veteran's statements that he injured his bilateral thumbs during active service. 3. After completion of the above, review the expanded record, including the evidence entered since the most recent supplemental statement of the case, and determine whether service connection may be granted for residuals of bilateral broken thumbs. If the benefit sought remains denied, furnish the Veteran and his representative with a supplemental statement of the case. A reasonable period should be allowed for response before the appeal is returned 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. §§ 5109B, 7112 (2012). _________________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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).