Citation Nr: 20004416 Decision Date: 01/21/20 Archive Date: 01/17/20 DOCKET NO. 10-48 912 DATE: January 21, 2020 REMANDED Service connection for residuals of left scaphoid fracture (claimed as a left hand and wrist injury) is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to July 30, 2014 is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from June 1969 to May 1981. He was also a member of the Tennessee Army National Guard (ARNG), with a period of active duty from July 2007 to September 2009. See DD 214; VETSNET Award Print. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2009 rating decision by the Nashville, Tennessee, Regional Office (RO) of the United States Department of Veterans Affairs (VA), which in pertinent part denied service connection for residuals of left scaphoid fracture (claimed as a left hand and wrist injury) and entitlement to TDIU prior to July 30, 2014. In June 2012, the Veteran testified at a videoconference hearing convened at the RO before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is included in the claims file and has been reviewed. In September 2014, the Board granted a claim to reopen service residuals of left scaphoid fracture (claimed as a left hand and wrist injury) and remanded the matter for additional development of the underlying claim along with the claims for higher ratings for knee and shoulder disabilities and the claim for a TDIU rating. The Board notes that the Veteran’s appeal originally included the issues of: (1) entitlement to service connection for radiculopathy of the left and right lower extremities (sciatic nerve); (2) basic eligibility to Dependents’ Educational Assistance under 38 U.S.C. Chapter 35; (3) evaluation of posttraumatic stress disorder (also diagnosed as depression and anxiety); (4) evaluation of residuals of a L2 compression fracture (claimed as back injury and lumbar fracture); and (5) evaluation of diabetes mellitus, type 2. In a September 2016 rating decision, the RO granted service connection for the Veteran’s left and right lower extremities (sciatic nerve) claims, basic eligibility to Dependents’ Educational Assistance under 38 U.S.C. Chapter 35 and continued the disability ratings of posttraumatic stress disorder (also diagnosed as depression and anxiety) at 70 percent disabling, residuals of a L2 compression fracture (claimed as back injury and lumbar fracture) at 20 percent disabling and diabetes mellitus, type 2 at 20 percent disabling. The Veteran’s TDIU claim has been rated as 100 percent disabled due to multiple service-connection disabilities, effective July 30, 2014. In May 2018, the Board remanded the issues of the Veteran’s claim for left knee disability, residuals of left scaphoid fracture (claimed as a left hand and wrist injury) and entitlement to TDIU prior to July 30, 2014. The Board provided the following remand directives to: (1) fully consider whether a separate disability rating is warranted under Diagnostic Code 5259 for residuals of a left knee meniscus injury or surgery; (2) readjudicate the service connection claim for left hand/wrist disability; and (3) readjudicate the claim to a TDIU prior to July 30, 2014. All evidence received since the November 2017 SSOC should be considered. If any benefit sought remains denied, the Veteran and his representative should be provided with another SSOC. Based upon the Board’s May 2018 decision the matter was remanded to the AOJ for initial consideration of the Veteran’s left knee disability claim and readjudication of the other two claims, as discussed above. The case is, again, before the Board for appellate review. 1. Service connection for residuals of left scaphoid fracture (claimed as a left hand and wrist injury) is remanded. In September 1980, the Veteran fractured his left wrist and hand during active duty in the United States Army. See June 2012 VLJ hearing transcript. The Veteran asserts that a 2016 EMG report evidences his current diagnosis of bilateral carpal tunnel syndrome (CTS) as a result of his left-hand condition. However, the AOJ found that there were no findings that the Veteran’s current symptomatology was related to, caused by, associated with or secondary to a left scaphoid fracture. In June 2012, the Veteran testified at a videoconference hearing convened at the RO regarding his left scaphoid fracture (claimed as a left hand and wrist injury). The Veteran testified that he served as a criminal investigator, while stationed in Germany, and he fractured his left hand during a fight in an undercover drug transaction. A review of the record evidences that the Veteran reported chronic pain and arthritis in his left wrist and fingers following this injury. See June 2012 VLJ hearing transcript; see also May 2010 Statement In Support of Claim. However, the AOJ denied service connection for the Veteran’s claim for residuals of left scaphoid fracture (claimed as a left hand and wrist injury), because while the October 2017 VA examiner diagnosed bilateral CTS and diminished left wrist flexion, extension and grip, the VA examiner did not offer medical evidence directly providing an explanation of etiology, causation and service connection of this condition. Specifically, the record did not demonstrate radiographs evidencing a fracture in service. See November 2017 SSOC. In October 2017, a VA examiner opined, after reviewing the evidence of record, that “it was as least as likely as not” that the Veteran suffered a left scaphoid fracture during service. However, in a November 2017 Addendum Clarification Disability Benefits Questionnaire, a VA examiner opined that it is less likely than not that CTS on the Veteran’s left limb to have been worsened beyond the natural progression by the Veteran’s in-service injury. This VA examiner further clarified that the Veteran’s left-hand contusion is less likely than not to have caused or worsened CTS. The two VA examiners’ opinions are inconsistent and inadequate to render a finding on this claim; especially considering the short timeframe between the two VA medical findings. To fully readjudicate this claim a new medical examination is needed to render a finding of etiology, causation and/or service connection for the Veteran’s claim. Such additional medical examination should have been conducted based upon the Board’s May 2018 directive requiring readjudication of this claim. See 38 C.F.R. §§ 19.31, 20.1304 (c). The AOJ has not followed the Board’s May 2018 directives regarding readjudication of this claim. Therefore, remand is warranted to obtain a medical opinion on etiology, causation and service connection of the Veteran’s left scaphoid fracture (claimed as a left hand and wrist injury). See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). 2. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to July 30, 2014 is remanded. In May 2018, the Board granted entitlement to a TDIU effective July 30, 2014. A total disability rating based upon individual unemployability due to service-connected disabilities is assigned when service-connected disability result in such impairment of mind or body that the average person would be precluded from following a substantially gainful occupation. 38 C.F.R. §§ 3.340, 4.15. However, the Board remanded the Veteran’s claim for entitlement to TDIU prior to July 30, 2014, because this claim was determined to be “inextricably intertwined” with the Veteran’s service connection claim for residuals of left scaphoid fracture (claimed as a left hand and wrist injury). See Smith v. Gober, 236 F.3d 1370 (Fed. Cir. 2001); see also Harris v. Derwinski, 1 Vet. App. 180 (1991). Based upon the need for further development of the Veteran’s left scaphoid fracture condition (claimed as a left hand and wrist injury) the AOJ should fully readjudicate the Veteran’s claim of entitlement to TDIU prior to July 30, 2014. The matters are REMANDED for the following action: 1. Identify and obtain any outstanding, pertinent, VA and private treatment records and associate them with the claims file. 2. Medical findings detailed in an October 2017 VA compensation examination report addressing left knee disability raise the issue of whether a separate disability rating is warranted under Diagnostic Code 5259 for residuals of meniscus injury and surgery. See 38 C.F.R. § 4.71(a). As the issue has not been adjudicated by the AOJ, the issue is not before the Board. As such, the issue is referred to the AOJ for appropriate development. See Lyles v. Shulkin, 29 Vet. App. 107, 121(2017) (holding that compensation awarded for limitation of motion pursuant to Diagnostic Codes 5261-60 does not necessarily address symptomatology related to meniscus disorder compensated under Diagnostic Codes 5258 and 5259). 3. The service connection claim for left hand/wrist disability and the claim to a TDIU prior to July 30, 2014 should be readjudicated. (a.) All evidence received since the November 2017 SSOC should be considered. Return the claims file to the VA examiner who provided the November 2017 opinion (or another appropriate examiner if that examiner is unavailable) to obtain an addendum opinion regarding the nature and etiology of the Veteran’s left scaphoid fracture (claimed as a left hand and wrist injury) condition. (b.) Identify all current evidence of the Veteran’s left scaphoid fracture (claimed as a left hand and wrist injury) disability and any other possible left wrist disability. (c.) Is it at least as likely as not (50 percent probability or greater) that any diagnosed left scaphoid fracture (claimed as a left hand and wrist injury) disability claim is etiologically related to the Veteran’s active duty service. (d.) Is it at least as likely as not (50 percent or greater probability) that any diagnosed left scaphoid fracture (claimed as a left hand and wrist injury) disability claim was caused by the Veteran’s service-connected disabilities. (e.) Is it at least likely as not (50 percent or greater probability) that any diagnosed left scaphoid fracture (claimed as a left hand and wrist injury) disability was aggravated by the Veteran’s service-connected disabilities. Please explain why or why not. If the examiner finds that any diagnosed left scaphoid fracture (claimed as a left hand and wrist injury) disability, was aggravated by the service-connected disabilities, the examiner must identify the baseline level of the disability that existed before aggravation by the service-connected disability occurred. The examiner should provide a complete rationale for any opinion rendered. If the examiner cannot provide any requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. After completing the requested actions and any other necessary development, the Veteran’s claims must be readjudicated in light of all pertinent evidence. If the benefit sought remains denied, a SSOC must be provided to the Veteran and his current representative. After the Veteran has had adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The remanded claims must be afforded expeditious treatment. The law requires that all claims remanded by the Board or by the U.S. Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C. §§ 5109 B, 7112. C. TRUEBA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Henderson, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.