Citation Nr: 21004204 Decision Date: 01/26/21 Archive Date: 01/26/21 DOCKET NO. 14-02 559 DATE: January 26, 2021 REMANDED Entitlement to a compensable rating for a lacerated fifth finger, right hand, status post tendon repair, is remanded. Entitlement to a rating in excess of 10 percent prior to February 22, 2018, and in excess of 20 percent thereafter for lumbar strain with degenerative disc disease, is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1988 to August 1994. The Veteran appealed February 2012 and 2018 rating decisions by the Agency of Original Jurisdiction (AOJ). The two issues on appeal were docketed separately and merged together. In June 2020, the Board of Veterans’ Appeals (Board) remanded the Veteran’s claim regarding his lacerated fifth finger to the AOJ for further action consistent with the Board’s remand directives. The Board finds that further evidentiary development is necessary and remands the case to ensure compliance with the Board’s prior remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Fifth Finger The June 2020 Board decision remanded the issue for a new VA examination since the February 2019 VA examiner failed to address whether there was a neurological or muscular reason for the Veteran’s decreased ability to grip objects. Therefore, the remand instructions asked the examiner to identify all orthopedic, muscle, and neurological impairments and address whether the Veteran’s decreased ability to grip is due to a neurologic or muscular reason and if the condition impacts the entire right hand. However, the October 2020 VA examiner did not comment on muscle and neurological impairments impacting grip or the entire right hand. Therefore, remand is required for a new VA examination that properly addresses the prior remand instructions. Additionally, the Board notes that the Veteran may be rated at compensable levels under Diagnostic Code 5003 if x-ray findings note degenerative arthritis involving two or more joint groups. The October 2020 VA examiner noted diagnostic testing results are not satisfactory and x-ray of the right hand shows density which needs followup. As such, it appears that new diagnostic testing is required to determine whether the Veteran has degenerative arthritis in multiple joints. 2. Back The Veteran’s representative asserts the February 2018 VA examiner did not appropriately account for flare-ups. See February 2020 correspondence. The February 2018 VA examination report noted flare-ups and only noted they occurred while moving any objects. The February 2018 VA examiner found pain significantly limited functional ability with flare-ups, but marked the same range of motion (ROM) measurements except for 5 degrees less regarding left lateral flexion. Given the Veteran’s reports, little to no description of flare-ups in the February 2018 VA examination report, and unremarkable change in ROM measurements for flare-ups, the Board finds the February 2018 VA examiner did not appropriately account for flare-ups. The October 2019 VA examiner also marked flare-ups that occur at least once a month making it hard to breathe, but was unable to opine as to functional limitation or decrease in ROM during flare-ups since “there remains no basis to offer additional losses of function or motion when it comes to flare ups.” The Board finds the October 2019 VA examiner failed to elicit sufficient information regarding the Veteran’s flare-ups to allow the Board to fully assess the severity of the Veteran’s back condition during flare-ups. As such, remand is required for a new VA examination that properly accounts for flare-ups. The matters are REMANDED for the following action: 1. Obtain any outstanding VA and/or private treatment records relevant to treatment the Veteran received for his right hand and back conditions that are not already of record. All obtained records should be associated with the evidentiary record. If any identified records are not obtainable (or none exist), the Veteran and his representative should be notified, and the record clearly documented. 2. Thereafter, schedule the Veteran for an examination to determine the current severity of his service-connected right hand condition. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. The examiner must identify all manifestations of the Veteran’s service-connected lacerated fifth finger condition. This must specifically include all orthopedic, muscle, and neurological impairment. The examiner is asked to acknowledge and discuss the Veteran’s functional impact, specifically regarding his difficulty with grasping objects, difficulty with manipulating objects with his dominant hand, and difficulty carrying objects, and address whether the Veteran’s decreased ability is due to a neurologic or muscular reason. The examiner must also address whether the Veteran’s lacerated fifth finger condition impacts his entire right hand. The examiner is to conduct appropriate diagnostic testing to determine if the Veteran has degenerative arthritis in his right hand related to his lacerated fifth finger condition, and if so, in which joints. 3. After the development in #1 above is completed, schedule the Veteran for an examination of the current severity of his back condition. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing (if applicable). 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 identify any symptoms and functional impairments due to the Veteran’s condition and discuss the effect of the Veteran’s condition 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). 4. After the above development has been completed to the extent possible, readjudicate the claims. If any benefit sought remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC), and return the case to the Board, if otherwise in order. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Zheng, 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.