Citation Nr: 21001317 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 09-22 782 DATE: January 7, 2021 REMANDED Entitlement to a compensable rating prior to June 6, 2018, and a rating in excess of 10 percent from June 6, 2018, for right index finger dislocation residuals, to include on an extraschedular basis, is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1992 to December 2000 with six months and two days of prior active service. This appeal comes before the Board of Veterans’ Appeals (Board) from an October 2007 rating decision. In September 2009, the Veteran testified at a Board videoconference hearing at the agency of original jurisdiction (AOJ) before a Veterans Law Judge (VLJ) who recently retired. A transcript of the hearing is associated with the electronic claims file. In October 2009, the Board denied entitlement to a compensable rating. The Veteran appealed the Board decision to the United States Court of Appeals for Veterans Claims (Court). In a September 2011 Memorandum Decision, the Court set aside the Board’s denial of the claim and remanded the issue for further proceedings consistent with the decision. In April 2012 and October 2016, the Board remanded this matter for additional development. In June 2018, the Veteran testified at a Board videoconference hearing at the AOJ before the undersigned VLJ. A transcript of this hearing is also associated with the electronic claims file. Testimony on the increased rating issue for right index finger dislocation residuals was again taken at this hearing. As noted above, the Veteran testified about the same issue at two separate hearings before two different VLJs. Accordingly, this appeal was then addressed by a panel, which included the VLJs who presided at the hearings. 38 C.F.R. § 20.707. In that regard, the Board acknowledges that claimants are entitled to an opportunity for a hearing before every panel member who will ultimately adjudicate the appeal. See Arneson v. Shinseki, 24 Vet. App. 379, 386 (2011). During the June 2018 Board hearing, the Veteran was presented the opportunity to have a hearing before a third VLJ. He waived his right on the record (later transcribed in the hearing transcript) to have a hearing before the third member of the panel addressing the appeal. Thereafter, in a September 2018 panel decision, the Board remanded this matter for additional development. In July 2020, the AOJ increased the Veteran’s service-connected right index finger dislocation residuals to 10 percent, effective June 6, 2018. The Veteran is presumed to be seeking the maximum benefit allowed by law and regulation, and therefore the additional assignment of benefits is not considered to have resolved his claim. AB v. Brown, 6 Vet. App. 35 (1993). In October 2020, the Board notified the Veteran that the VLJ who conducted one of his hearings before the Board was no longer employed by the Board (due to retirement) and advised him of the opportunity to provide testimony at another hearing before the Board. As the Veteran and his attorney did not respond to the letter, the Board can now proceed with adjudication of this matter with the undersigned VLJ. Entitlement to a compensable rating prior to June 6, 2018, and a rating in excess of 10 percent from June 6, 2018, for right index finger dislocation residuals, to include on an extraschedular basis, is remanded. The Veteran has repeatedly stated that cold weather causes hypersensitivity, increases limitation of motion of the affected right index finger, and limits functional ability. He has further described right index finger symptoms including limitation of motion, decreased grip strength, pain with motion and fine manipulation of the finger, popping, locking, numbness, and stiffness. He has also asserted that his service-connected right index finger disability causes difficulties with maintaining firearm qualifications, a condition of maintaining his employment as an airport security guard. The Board most recently remanded this matter in September 2018 in order to obtain a VA examination that included findings addressing functional impact of cold weather and the degree of functional loss during flare-ups of the Veteran’s service-connected right index finger disability as well as the effect of the Veteran’s symptoms on his employment as an airport security guard, to include his ability to use firearms. These findings were requested in order to fully address the matters raised in the Court’s September 2011 Memorandum Decision. Unfortunately, the May 2019, August 2019, and December 2019 VA examination reports/medical opinions did not contain adequate findings for the Board to properly adjudicate this matter. While the Veteran has repeated provided detailed assertions concerning functional loss, daily flare-ups, and the effects of his right index finger disability on his employment, none of the examiners above provided any meaningful discussion concerning those assertions in the context of conducting the examinations/medical opinions of record. Based on the foregoing, the Board has determined that a remand is warranted to obtain yet another VA examination/medical opinion to procure adequate findings addressing functional impact of cold weather and the effect of the Veteran’s symptoms on his employment, to include his ability to use firearms, as well as to obtain retrospective/current findings in regard to the Veteran’s right index finger symptoms concerning additional functional loss (to include additional loss of range of motion) during flare-ups. See Sharp v. Shulkin, 29 Vet. App. 26 (2017) (outlining VA examiners’ obligation to elicit information regarding flare-ups of a musculoskeletal disability if the examination is not conducted during such a flare-up, and to use this information to characterize additional functional loss during flare-ups or to properly explain why such findings could not be offered). Evidence of record further reflects that the Veteran received VA medical treatment for his service-connected right index finger dislocation residuals from Atlanta VAMC, to include Old East Point and Fulton County VA outpatient clinics. As evidence of record only includes treatment records dated up to November 2019 from those facilities, all pertinent VA treatment records should be obtained and properly associated with the record. 38 U.S.C. § 5103A(c) (2012); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). The matter is REMANDED for the following actions: 1. Obtain updated treatment records pertaining to the Veteran’s service-connected right index finger dislocation residuals from Atlanta VAMC, to include Old East Point and Fulton County VA outpatient clinics, from November 2019 to present. 2. Schedule the Veteran for an examination of the current severity of his service-connected residuals of right index finger dislocation. The Veteran’s electronic claims file and a copy of this Remand must be reviewed by the examiner. The examiner should discuss range of motion findings for the right index finger and specifically indicate the size of any gap between the fingertip and the proximal transverse of the palm, with the finger flexed to the extent possible, and any limitation of extension of the finger. The examiner is requested to test the range of motion (providing range of motion measurements in degrees) for the right index finger and the opposing joint on active motion, passive motion, weight-bearing, and nonweight-bearing. The examiner should also discuss whether the Veteran’s right index finger exhibits weakened movement, excess fatigability, or incoordination that is attributable to the applicable service-connected disability. If feasible, this determination should be expressed in terms of the degree of additional range of motion lost. The examiner should express an opinion as to the degree to which pain could significantly limit functional ability during flare-ups or when the Veteran uses his right index finger repeatedly over a period of time. Repetitive motion testing must be conducted. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. The examiner should estimate the amount in degrees of range of motion lost due to flare-ups experienced by the Veteran based on all the evidence of record, including the Veteran’s lay assertions, or clearly explain why he/she could not do so (simply marking the box that the examination was not conducted during a flare-up and is neither medically consistent or inconsistent with the Veteran’s statements describing functional loss during flare-up is not sufficient in this specific case). The examiner should also provide retrospective findings in regard to pain on range of motion testing and an estimation of functional loss during flare-ups, per Sharp, based on VA examination findings of record dated from September 2006 to the present. To the extent possible, the examiner should identify any symptoms and functional impairments due to residuals of right index finger dislocation alone and discuss the effect of the Veteran’s residuals on any occupational functioning and activities of daily living. Again, the examiner should discuss the effect of the Veteran’s symptoms on his employment, to include his ability to use firearms and perform other work tasks. The examiner must discuss the Veteran’s assertion that his symptoms increase in cold weather and describe the impact or impairment that cold weather has on the functioning of the right index finger, to include employment. If feasible, this determination should be expressed in terms of the degree of additional range of motion lost. 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). 3. After completing the above actions and any other necessary development, the claim on appeal must be re-adjudicated, taking into consideration all relevant evidence associated with the record since the July 2020 SSOC. The AOJ must also discuss whether referral of the Veteran’s claims file to the Director, C&P Service, for extraschedular consideration is appropriate for the Veteran’s service-connected right index finger disability under 38 C.F.R. § 3.321(b). (Continued on the next page)   4. If the benefit on appeal remains denied, an SSOC must be provided to the Veteran and his attorney. After the Veteran and his attorney have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. D. Deane, 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.