Citation Nr: 18124652 Decision Date: 08/08/18 Archive Date: 08/07/18 DOCKET NO. 10-04 342 DATE: August 8, 2018 REMANDED Entitlement to an increased rating in excess of 10 percent for a right thumb condition, listed as degenerative joint disease, Bennett’s fracture of right thumb, postoperative, is remanded. Entitlement to extraschedular rating for a right thumb condition, listed as degenerative joint disease, Bennett’s fracture of right thumb, postoperative, is remanded. Entitlement to extraschedular rating for a right wrist condition associated with degenerative joint disease is remanded. REASONS FOR REMAND The case originally came to the Board of Veterans’ Appeals (Board) on appeal from an April 2009 rating decision of the Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which granted service connection for a right wrist disability and a right thumb scar at 10 percent each, and continued a 10 percent rating for a right thumb disability. In April 2013, the Veteran testified at a Travel Board hearing before a Veterans Law Judge (VLJ). A transcript of the proceeding has been associated with the electronic claims file. The Veteran was notified that the VLJ is no longer with the Board and offered the opportunity to attend a new hearing. The Veteran did not respond; as such, the Board is moving forward with the appeal. This case was previously before the Board in September 2014, when the claims were remanded to obtain VA examinations. In an April 2016 decision, the Board denied increased evaluations of each claim beyond the already assigned 10 percent rating and declined to send the claims for an extraschedular review. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court) which granted a partial Joint Motion for Remand (JMR) in June 2017. The JMR vacated the Board’s denial of a rating evaluation in excess of 10 percent for a right thumb disability and the denial of referral for extraschedular consideration of the right thumb and right wrist to include the collective impact of all of the Veteran’s service-connected disabilities (right thumb, right wrist, and right thumb scar). In the JMR, it was explained that the Veteran did not appeal the issues of denial of entitlement to increased schedular ratings for the right wrist and right thumb scar disabilities or denial of referral for extraschedular consideration of the right thumb scar disability independent of the right thumb and wrist disabilities. The Court remanded the claims to the Board for action consistent with the terms of the JMR. Subsequently, the claims were remanded by the Board to the RO in October 2017. A Supplemental Statement of the Case (SSOC) was issued in April 2018 addressing the claim of an increased schedular rating for the right thumb disability. 1. Entitlement to an increased rating in excess of 10 percent for a right thumb condition. While the record contains a contemporaneous VA examination regarding the Veteran’s right thumb disability, the examination does not fully comply with the Board’s prior Remand directives pursuant to the JMR and with the requirements in Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). The examination recognized that the Veteran had pain, but failed to indicate at what point in the range of motion the pain began. The examiner also stated that an opinion could not be provided without resort to speculation in regard to flare-ups because the Veteran was not currently experiencing a flare-up. Thus, remand is warranted for additional examination. 2. Extraschedular consideration for right thumb and wrist disabilities. The Appeals Resource Center referred the Veteran’s disabilities for extra-schedular consideration under 38 C.F.R. § 3.321(b)(1) (2017) with a detailed recommendation to deny. A SSOC was issued in April 2018, addressing the claim of an increased schedular rating for the right thumb disability. The extraschedular issues were not addressed. Subsequently, a letter was received from the Director of Compensation Service in which she concurred with the Appeals Resource Center’s recommendation to deny. The Board’s Remand directives were not completed prior to the issuance of the April 2018 SSOC. Remand is warranted for re-adjudication of the extraschedular claims and issuance of a SSOC. The matters are REMANDED for the following action: 1. Afford the Veteran a VA examination to determine the current severity of his right thumb disability. The Veteran's claims folder must be reviewed by the examiner in conjunction with the examination. All indicated tests and studies should be accomplished, and all clinical findings should be reported in detail, including ranges of motion of the right thumb and the degree at which pain begins (this finding must be included in the report in order for the Board to comply with the Court ordered June 2017 Joint Motion for Remand). Pursuant to Correia v. McDonald, 28 Vet. App. 158 (2016), the examination should record the results of range of motion testing for pain on BOTH active and passive motion AND in weight-bearing and nonweight-bearing. If such testing cannot be conducted, then the examiner must specifically indicate that such testing cannot be done. The examiner should also express an opinion concerning whether there would be additional functional impairment on repeated use or during flare-ups assessed in terms of the degree of additional range of motion loss. In regard to flare-ups (pursuant to Sharp v. Shulkin, 29 Vet. App. 26 (2017), if the Veteran is not currently experiencing a flare-up, based on relevant information elicited from the Veteran, review of the file, and the current examination results regarding the frequency, duration, characteristics, severity, and functional loss regarding his flares, the examiner is requested to provide an estimate of the Veteran's functional loss due to flares expressed in terms of the degree of additional range of motion lost, or explain why the examiner cannot do so. [The Board recognizes the difficulty in making such determinations but requests that the examiner provide his or her best estimate based on the examination findings and statements of the Veteran.] 2. After completing the above, readjudicate the claims of entitlement to an increased rating for a right thumb disability and entitlement to extraschedular consideration for right thumb disability and right wrist disability. If the claims remain denied, issue a SSOC, allow the appropriate time for response, and thereafter return the case to the Board, if in order. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Jamison, Elizabeth G.