Citation Nr: 20046765 Decision Date: 07/13/20 Archive Date: 07/13/20 DOCKET NO. 17-36 644 DATE: July 13, 2020 REMANDED Entitlement to a compensable rating on and after April 1, 2016, for right first metacarpalphalangeal joint ligament strain with enthesopathy, status post open wound (right thumb disorder), to include the propriety of the reduction of the rating from 30 percent to noncompensable, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from January 1977 to April 1977 and in June 1981. The Veteran testified at a Board hearing in August 2019. However, the Board was unable to transcribe the hearing due to audio malfunctions heard throughout the testimony in the Digital Audio Recording System. In October 2019 correspondence, the Board provided the Veteran the opportunity to testify at another Board Hearing. In a November 2019 response, the Veteran declined to appear at another Board hearing and requested the Board continue with appellate review. Entitlement to a compensable rating on and after April 1, 2016, for a right thumb disorder, to include the propriety of the reduction of the rating from 30 percent to noncompensable, is remanded. In March 2016, the Veteran submitted imaging that appears to show an inability of the Veteran to touch thumb pad to index finger. In February 2017, the Veteran submitted VA treatment records showing that he is treated with injections to the right thumb. In the July 2017 substantive appeal, the Veteran stated he continues to experience severe pain in the right thumb. He stated he receives physical therapy and medication to treat the pain. He stated he uses a thumb brace to stabilize the thumb and alleviate the pain. After the issuance of the statement of the case (SOC), VA associated VA treatment records with the claims file. These records show the Veteran underwent surgery of the right thumb. There is evidence of worsening since the prior August 2015 VA examination. As it has been over four years since the Veteran has been provided with a VA examination concerning the rating of the right thumb disorder and there is an assertion of worsening symptomatology, a remand is warranted to ensure that the record contains evidence of the current severity of the Veteran’s service-connected right thumb disorder. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159; Green v. Derwinski, 1 Vet. App. 121 (1991); Caffrey v. Brown, 6 Vet. App. 377 (1994). Additional VA treatment records were associated with the claims file after the issuance of the SOC in June 2017. As this medical evidence was generated by VA, and because a waiver of Agency of Original Jurisdiction (AOJ) consideration has not been provided by the Veteran, a remand is warranted in order to allow the AOJ to review this evidence and issue a supplemental statement of the case (SSOC) for the issue. 38 U.S.C. § 7105. Regarding the question of the propriety of the rating reduction, the Board observes that by way of a January 2016 rating decision, the Regional Office (RO) reduced the Veteran’s rating for his right thumb disorder from 30 percent to noncompensable, effective April 1, 2016. The Veteran filed a timely notice of disagreement (NOD) challenging the rating, specifically stating that he believed the rating “should stay at 30%.” The Board interprets this appeal as a challenge to the propriety of the reduction of the rating from 30 percent to noncompensable for his right thumb disorder, effective April 1, 2016. A statement of the case (SOC) was associated with the claims file in June 2017; however, the RO did not address the propriety of the reduction in that SOC, adjudicating the claim only as one for an increased rating. Because the RO did not properly address the Veteran’s NOD, the issue will be remanded to issue a statement of the case (SOC) addressing the propriety of the underlying reduction of the rating assigned for the Veteran’s right thumb disorder from 30 percent to noncompensably disabling effective April 1, 2016. Further, as questions regarding the propriety of the reduction are intertwined with the increased rating claim, adjudication of the reduction claim is deferred pending completion of the requested development. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination (or telehealth interview, record review, or similar action, if an in-person examination is not feasible) of the current severity of his right thumb disorder. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss experienced during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to the right thumb disorder alone and discuss the effect of the Veteran’s right thumb disorder on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment 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). 2. Send the Veteran and his representative a statement of the case that addresses the issue of propriety of the reduction for a right thumb disorder from 30 percent to noncompensable, effective April 1, 2016. If the Veteran perfects an appeal by submitting a timely VA Form 9, the issue should be returned to the Board for further appellate consideration. 3. Issue an SSOC for the issue of entitlement to a compensable rating for the Veteran’s right thumb disorder from April 1, 2016, that includes consideration of the medical evidence submitted after the June 2017 SOC, and any other relevant evidence received since the June 2017 SOC. Caroline Fleming Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Thompson, 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.