Citation Nr: 20042331 Decision Date: 06/22/20 Archive Date: 06/22/20 DOCKET NO. 13-02 301 DATE: June 22, 2020 REMANDED Entitlement to an initial compensable rating for right hand residuals of a fracture of the fifth metacarpal is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Navy from February 1967 to July 1969 with service in the Republic of Vietnam. He was awarded the Combat Action Ribbon. A February 2018 order of the United States Court of Appeals for Veterans Claims (Court) implemented an February 2018 Joint Motion for Partial Remand (JMPR), vacating and remanding, in part, the May 2017 Board decision that denied entitlement to an initial compensable rating for residuals of a right little finger fracture. As such, the issue of entitlement to an initial compensable rating for right hand residuals of fracture of the fifth metacarpal is again before the Board. The claim was subsequently remanded for additional development in July 2018 including a VA examination, and as discussed below, the Board’s prior remand instructions have not been substantially complied with. As there has not been substantial compliance with the Board’s remand instructions, the case is again before the Board, and additional development is warranted. See Stegall v. West, 11 Vet. App. 268, 271(1998). Entitlement to an initial compensable rating for right hand residuals of a fracture of the fifth metacarpal is remanded. The Veteran contends that an increased compensable rating is warranted for his service-connected residuals of right hand fracture of the fifth metacarpal. The Board finds that a remand is warranted for additional development. In July 2018, the Board remanded the case and the regional office (RO) was directed to afford the Veteran a VA examination. In Stegall v. West, 11 Vet. App. 268, 271 (1998), the United States Court of Appeals for Veterans Claims (Court) held that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the Board’s remand order. Moreover, the Court has held that the Board itself errs when it fails to ensure compliance with the terms of its remand. Id. Although on remand the RO obtained a VA examination, the RO did not substantially comply with the remand directives because the VA examination failed to fully address issues raised in the July 2018 remand. Specifically, in the April 2019 VA examination and September 2019 supplemental opinion the examiner noted the Veteran reported pain with use of the right hand and no pain with use of the left hand. However, the examiner failed to address at what point in the range of motion testing the Veteran did experience pain. Further, the examiner noted that he Veteran’s residuals of his right hand fifth metacarpal fracture impact his ability to perform occupational tasks due to pain with use, but the examiner did not discuss the extent that such interferes with the Veteran’s overall function of his hand. See Stegall, 11 Vet. App. at 271; Barr, 21 Vet. App. at 307. As such a remand is warranted for a supplemental VA examination for clarification. The matter is REMANDED for the following action: Schedule the Veteran for a supplemental examination and opinion by an appropriate clinician to determine the current severity of his service-connected residuals of right hand fracture of the fifth metacarpal. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. In so doing, the examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible or appropriate to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). In so doing, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. During, the period on appeal, the Veteran has reported flare ups of increased right hand pain and stiffness, at times. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups, during the entire period on appeal, based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). Specifically, the examiner should address the point, if any, in the range of motion testing when the Veteran experiences pain. Further, the examiner noted pain on right hand finger flexion and opposition with his thumb but did not specify the point at which the Veteran experiences pain. In addition, the examiner in April 2019 noted pain with use which impacts the Veteran’s ability to perform occupational tasks but failed to address the extent of the Veteran’s injured finger and how such impacts the overall function of his hand. Further clarification is warranted. Review of the entire claims file is required. The examiner must provide a complete rationale for all findings and opinions, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Kardian, 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.