Citation Nr: 20079971 Decision Date: 12/18/20 Archive Date: 12/18/20 DOCKET NO. 17-25 342 DATE: December 18, 2020 REMANDED Entitlement to a compensable evaluation for the Veteran's service-connected residuals of fracture of the right fourth and fifth fingers is remanded. REASONS FOR REMAND The Veteran had honorable active duty service with the United States Marine Corps from August 1986 to January 1990. In a May 2017 substantive appeal, the Veteran requested a video conference hearing. In December 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the claims file. Pursuant to a February 2020 Board decision, this matter was remanded for additional development to include obtaining updated VA and private treatment record and scheduling the Veteran for a new VA examination. In a subsequent rating decision, dated September 2020, the Veteran’s claims of entitlement to service connection for a traumatic brain injury (TBI) and impulse control disorder (claimed as posttraumatic stress disorder (PTSD)) were granted. The assigned evaluations were 10 percent disabling and 70 percent disabling effective November 24, 2014, respectively. Considering the favorable findings in the September 2020 decision, the above referenced issues are no longer before the Board on appeal. As to the remaining issue, an additional remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the appellant’s claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A (2014); 38 C.F.R. § 3.159 (2018). 1. Entitlement to a compensable evaluation for the Veteran's service-connected residuals of fracture of the right fourth and fifth fingers is remanded. Although the further delay entailed by remand is regrettable, current adjudication of the Veteran’s claims would be premature. Undertaking additional development prior to a Board decision is the only way to ensure compliance with the duty to assist, as required. 38 U.S.C. § 5103A (West 2014); 38 C.F.R. § 3.159 (2018). The Veteran contends that the current severity of his service-connected residuals of the right fourth and fifth fingers is worse than currently evaluated. In this case, the Veteran’s right fourth and fifth finger disabilities have been evaluated as non-compensable pursuant to Diagnostic Code 5230. 38 C.F.R. §§ 4.71a (2018). Diagnostic Codes 5228, 5229 and 5230 pertain to limitation of motion of the individual digits. Post-service treatment records indicate that the Veteran received ongoing treatment for a right-hand and arm condition. In August 2015, a primary care treatment note referenced chronic pain in the right-hand and elbow. Tylenol was unable to resolve his pain. A physical examination revealed mild tenderness to palpation (TTP) to the olecranon region of the right elbow and the 5th metacarpal of the right hand. A history right hand fracture with non-displaced of the 4th and 5th metatarsals was indicated. The Veteran denied any history of gout. During an orthopedic evaluation in December 2016, the Veteran reported pain, swelling, numbness and tingling in the right hand and fingers. A physical examination revealed hypothenar atrophy and interosseous atrophy in the right hand with swelling. A history of fractures of the 4th and 5th metacarpals was indicated. Pain radiates to the elbow. During a Board hearing in December 2019, the Veteran testified that he broke two bones in his right hand during active service. Thereafter, he was treated at a Naval hospital where the bones were re-set and placed in a cast. Related symptomology included pain and limited motion in the right arm and elbow. According to the Veteran, he re-injured the same hand and was separated from active service due to inadequate healing. Current symptoms include chronic pain, weather sensitivity, swelling, tingling, numbness and throbbing that radiates from the hand into the elbow. Due to his right hand and wrist condition, the Veteran’s impairment results in a limited ability to grip, perform household chores, type, drive, or engage in physical activities (such as play basketball). Specifically, he identified pain rated as a 7 on a 10-point scale and limited motion of his index finger, long finger, ring finger, and pinky/little finger. As previously noted, a February 2020 Board Decision remanded this matter for additional development to include, obtaining updated VA and private treatment records and scheduling the Veteran for a new VA examination. In April 2020, additional treatment records, to include physical therapy records, dated December 2016, were associated with the claims file. However, the remand directive requiring the Veteran to be scheduled for a new VA examination remains outstanding. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268 (1998). Compliance with a remand is not discretionary, and failure to comply with remand directives triggers a remand for corrective action. Accordingly, an additional remand is required as VA’s duty to consider all evidence of record has not been satisfied. The matters are REMANDED for the following action: 1. Obtain updated VA and private treatment records and associated them with the claims file. 2. Schedule the Veteran for an appropriate VA examination to determine the current severity of his service-connected residuals of the right fourth and fifth fingers. The entire claims file and a copy of this remand should be made available to the examiner for review, and such review should be noted in the examination report. All necessary tests and studies should be conducted. If appropriate, the Veteran should be offered the opportunity for a virtual examination. The examiner must also discuss the functional effects of the Veteran’s service-connected residuals of the right fourth and fifth fingers, and any related residual conditions. As a part of the examination and/or opinion, the examiner must consider all medical evidence to include the Veteran’s lay statements. The examining physician/specialist should provide information to demonstrate that he or she is qualified to offer the above requested opinion (such as a curriculum vitae or similar demonstrable documentation). This information is to be associated with the Veteran’s claims file. See Francway v. Wilkie, No. 2018-2136, 2019 U.S. App. LEXIS 30633 (Fed. Cir. Oct. 15, 2019). Any opinion offered must be accompanied by a complete rationale, to include consideration of all medical evidence and lay statements. If any requested opinion cannot be offered without resorting to speculation, the examiner should indicate such in the examination report and explain why a non-speculative opinion cannot be offered. The examiner should also identify what, if any, additional information or evidence would allow for a more definitive opinion. 3. Thereafter, re-adjudicate the Appellant’s claim. If any benefit sought remains denied, provide the Veteran with a supplemental statement of the case and an adequate opportunity to respond before returning the matter to the Board for further adjudication, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires all claims remanded by the Board or by the United States Court of Appeals for Veterans Claims to be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Whitaker, 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.