Citation Nr: 1824913 Decision Date: 04/24/18 Archive Date: 05/03/18 DOCKET NO. 14-08 611 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE 1. Entitlement to a disability rating in excess of 10 percent for a right wrist condition. 2. Entitlement to a total disability evaluation based upon individual unemployability due to service-connected disability (TDIU) REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Mukherjee, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1988 to June 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. In February 2017, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Following a November 2017 Board remand, the Veteran was afforded a VA examination in March 2018 for his right wrist condition. However, the Board finds that another remand is required to conduct an additional VA examination in light of the United States Court of Appeals for Veterans Claims (Court) recent decision in Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). In Sharp, the Court held that, pursuant to VA regulations and the VA Clinician's Guide, when conducting evaluations for musculoskeletal disabilities, VA examiners are obligated to inquire whether there are periods of flare-ups and, if the answer is yes, to state their "severity, frequency, and duration; name the precipitating and alleviating factors; and estimate, 'per [the] veteran,' to what extent, if any, they affect functional impairment." Id. at 10-11. The Court further explained that, in the event an examination is not conducted during a flare-up, the critical question in assessing the adequacy of the examination was "whether the examiner was sufficiently informed of and conveyed any additional or increased symptoms and limitations experienced during flares." Id. at 16 (quoting Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011)). During the March 2018 VA examination, the Veteran indicated that he experienced a decreased range of motion during flare-ups. However, the examiner concluded that he was unable to state, without resorting to speculation, whether pain, weakness, fatigability, or incoordination significantly limited functional ability with flare-ups because the Veteran was not being examined during a flare-up. In addition, the examiner did not provide an estimation of the loss of range of motion that occurs during flare-ups. Therefore, in light of Sharp, a new examination is necessary. During the pendency of his claim, the Veteran also raised the issue of entitlement to total disability rating based on individual unemployability (TDIU). The RO denied the claim in a February 2016 rating decision. The Veteran did not submit a notice of disagreement, but continued to assert that his service-connected right wrist condition impacted his ability to work. See February 2017 Board Hearing Transcript; March 2018 VA Examination. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a TDIU claim is part and parcel of a rating claim when raised by the record. As a result, the Board has jurisdiction to consider the Veteran's possible entitlement to TDIU when the issue is raised by assertion or reasonably indicated by the evidence and is predicated, at least in part, on the severity of the service-connected disability in question, regardless of whether the RO has expressly addressed this additional issue. As such, the Board has jurisdiction to consider the Veteran's possible entitlement to TDIU. However, in light of Rice and the remand of the claim for a higher rating for a right wrist condition, the TDIU issue must be remanded because the claims are inextricably intertwined and must be considered together. Therefore, a decision by the Board on the Veteran's TDIU rating claim would, at this point, be premature. Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran via a 38 C.F.R. § 3.159(b) notice letter addressing the elements of a TDIU claim and request authorization to obtain any outstanding records pertinent to his claims, including any private treatment records following proper VA procedures (38 C.F.R. § 3.159(c)). 2. Afford the Veteran a VA orthopedic examination to assess the severity of his right wrist condition. A copy of this remand and all relevant medical records should be made available to the examiner. The examiner must review the pertinent evidence, including the Veteran's lay assertions, and undertake any indicated studies. All testing indicated by the current Disability Benefits Questionnaire format must be addressed. The examiner should report all signs and symptoms necessary for rating the Veteran's right wrist condition under the rating criteria. In particular, the examiner should provide the range of motion in degrees of the right wrist. In so doing, the examiner should test the Veteran's range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing, where possible. If the examiner is unable to conduct the required testing, he or she should clearly explain so in the report. The presence of objective evidence of pain, excess fatigability, incoordination and weakness should also be noted, as should any additional disability (including additional limitation of motion) due to these factors. The examiner shall inquire as to periods of flare-up, and note the frequency and duration of any such flare-ups. Any additional impairment on use or in connection with flare-ups should be described in terms of the degree of additional range of motion loss. The examiner should specifically describe the severity, frequency, and duration of flare-ups; name the precipitating and alleviating factors; and estimate, per the Veteran, to what extent, if any, such flare-ups affect functional impairment. If the examiner is unable to conduct the required testing, he or she should clearly explain why that is so. All conclusions reached by the examiner should be thoroughly explained. 3. Finally, after completing the above actions, as well as any other development that may be warranted, the AOJ must readjudicate the Veteran's claims (including TDIU) in light of all the evidence of record. If any benefit on appeal remains denied, a Supplemental Statement of the Case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded expeditious treatment. The law requires that all issues 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). _________________________________________________ A. C. MACKENZIE 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).