Citation Nr: 1817151 Decision Date: 03/19/18 Archive Date: 03/30/18 DOCKET NO. 11-23 881 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to a rating in excess of 10 percent for left fourth and fifth finger disabilities. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran and his spouse ATTORNEY FOR THE BOARD D. Houle, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1971 to December 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. Jurisdiction now resides with the Roanoke, Virginia RO. In June 2016, the Veteran testified at a videoconference Board hearing before the undersigned at the Roanoke RO. A transcript of that hearing is of record. The Board previously remanded this claim in July 2016 and June 2017 for additional development. Such development has been completed and this matter is returned to the Board for further consideration. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required on his part. REMAND The Board finds that additional development is required prior to further disposition of the Veteran's claim. During the September 2016 VA examination of the Veteran's left hand, the Veteran reported that he experiences flare-up, specifically, difficulty extending his fourth and fifth fingers, especially after manual labor. Noting that pain and lack of endurance are factors which contribute to functional loss in the Veteran's fourth and fifth fingers on his left hand, the examiner stated he was unable to estimate range of loss motion without any further explanation. The Court addressed the adequacy of a VA examiner's opinion as it pertains to additional functional loss during reported flare-ups of a musculoskeletal disability, pursuant to DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court held that a new VA examination and opinion are necessary when the examiner does not obtain information from the Veteran regarding the severity, frequency, duration, or functional loss manifestations of any reported flare-ups, and that in declining to offer an opinion regarding additional functional loss as it relates to reported flare-ups, the examiner must provide adequate rationale for doing so. Sharp v. Shulkin, No. 16-1385 (September 6, 2017). Pursuant to the Board's July 2016 remand, the Veteran was afforded an additional VA examination in August 2017, as the September 2016 VA examiner did not examine the Veteran's right hand in connection with his left hand examination. While the August 2017 examination report notes that the Veteran indicated that his left hand disability remained unchanged, therefore, warranting an examination of only the Veteran's right hand, in a January 2018 statement, the Veteran challenged the adequacy of the examination, indicating that the examiner refused to examine his left hand during the August 2017 VA examination, despite his request. The Board finds the September 2016 VA examination for the Veteran's left fourth and fifth fingers to be inadequate for evaluation purposes because the examiner did not estimate range of motion loss based on the Veteran's reported flare-ups and their impact. Further, based on the inconsistencies between the August 2017 VA examination report and the Veteran's January 2018 statement as to the examination of the Veteran's left hand, the Board finds the examination results to be inconclusive. Based on the foregoing reasons, the Board finds that a remand is necessary for a new VA examination. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the nature and current severity of his service-connected left hand joints. The Veteran's electronic claims file must be accessible for review by the VA examiner in conjunction with the examination. A complete history from the Veteran should be obtained and recorded. All testing deemed necessary by the examiner should be performed and the results reported in detail. In particular, the examiner must test the range of motion in active motion, passive motion, weight-bearing, and non-weight-bearing. If possible, provide these tests for the opposite joint. If the examiner is unable to conduct any aspect of the required testing or concludes that it is not necessary, e.g., non-weight-bearing, the examiner should clearly explain why that is the case. The rationale for all opinions expressed should be provided. Following the review of the claims file and examination of the Veteran, the examiner is then requested to respond to the following: a) Describe any functional limitation due to pain, weakened movement, excess fatigability, pain with use, or incoordination. b) Indicate whether the examination is taking place during a period of flare-up, and if it is not, the examiner should ask the Veteran to describe the flare-ups, including: frequency, duration, severity, and functional impairment. c) Provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up. If the examiner cannot estimate the degrees of additional range of motion during flare-ups without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge or by a deficiency in the record or the examiner. The examiner should address how the Veteran's left fourth and fifth finger disabilities impact his activities of daily living, including his ability to obtain and maintain employment. 2. Thereafter, readjudicate the issue on appeal. If the benefit sought on appeal remains denied, the Veteran should be furnished with a supplement statement of the case, given the opportunity to respond, and the case should be thereafter returned to the Board for further appellate review, if warranted. 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 case 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). _________________________________________________ Thomas H. O'Shay 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).