Citation Nr: 21066571 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 08-25 157 DATE: November 1, 2021 REMANDED Entitlement to special monthly compensation (SMC) based on loss of use of the right hand is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1988 to October 2004. On the Veteran's August 2008 VA Form 9, he requested a hearing before the Board. However, he failed to report to his scheduled Board hearing in December 2010. As the record does not contain further explanation as to why the Veteran failed to report to the hearing, or a request to reschedule the hearing, the Board deems the Veteran's request for a Board hearing to be withdrawn. See 38 C.F.R. § 20.603 (2020). In April 2016, the Board issued a decision by another Veterans Law Judge that (in pertinent part) denied entitlement to SMC based on loss of use of the right hand. The Veteran appealed that portion of the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In September 2017, the Court issued a Mandate that (in pertinent part) vacated the April 2016 Board decision with regard to the issue of entitlement to SMC based on loss of use of the right hand, and remanded that matter for readjudication consistent with instructions outlined in its September 2017 Memorandum Decision. Following remand by the Board in June 2018, the Board issued another decision by a different Veterans Law Judge in December 2019 that denied entitlement to SMC based on loss of use of the right hand. The Veteran appealed the Board's decision to the Court. In October 2020, the Court issued an Order that vacated the December 2019 Board decision with regard to the issue of entitlement to SMC based on loss of use of the right hand, and remanded that matter for readjudication consistent with instructions outlined in an October 2020 Joint Motion for Remand by the parties. In March 2021, the Board again remanded the case for additional development. The case has now been assigned to the undersigned Veterans Law Judge. Entitlement to SMC based on loss of use of the right hand. The Veteran contends that he is entitled to SMC based on loss of use of his right hand pursuant to the provisions of 38 U.S.C. § 1114(k) and 38 C.F.R. § 3.350(a)(2). The Veteran last underwent a VA examination for his right hand in April 2019, and that examination focused specifically on the peripheral nerves. At that examination, he reported having trouble picking up items, weakness when using tools, and the ability to hold things but that he may drop them. The VA examiner noted that the Veteran had muscle atrophy of the intrinsic muscles of the right hand. No comment was made regarding the Veteran's range of motion in his right hand or fingers. Pursuant to the Board's March 2021 remand, the April 2019 VA peripheral nerves examiner provided an addendum medical opinion in March 2021, opining therein that the motor function of the Veteran's right hand could not be replaced by a prosthetic, and that what the Veteran has now in terms of his right hand "is far more functional than a prosthesis." For rationale, the VA examiner relied on the report of the April 2019 VA peripheral nerves examination. Thereafter, in April 2021, treatment records from Naval Hospital Jacksonville were newly obtained and associated with the claims file. One such record, dated in November 2020 (i.e., after the April 2019 VA peripheral nerves examination was conducted), documented that the Veteran was unable to completely extend his right ring and pinky finger with active range of motion, though he was able to fully extend with passive assistance. On remand, after all outstanding treatment records have been associated with the claims file, a hand and fingers examination should be scheduled to ascertain the current level of severity for the Veteran's service-connected disabilities affecting his right hand (i.e., right upper extremity ulnar neuropathy, right forearm limitation of flexion, and right forearm impairment of supination and/or pronation), as there is an indication that the conditions may have worsened since his last VA examination. The examiner must provide an opinion specifically addressing whether it is at least as likely as not that no effective function of the Veteran's right hand remains other than that which would be equally well-served by an amputation stump at the site of election below the elbow with use of a suitable prosthetic appliance. Additionally, the Board notes that correspondence mailed to the Veteran as recently as September 2021 was returned to sender marked as "unclaimed" and "unable to forward." On remand, the Veteran's current mailing address should be verified and subsequently updated in all VA systems as necessary. The matter is REMANDED for the following actions: 1. Verify the Veteran's current mailing address, and subsequently update his address in all VA systems as necessary. 2. Ask the Veteran to complete a VA Form 21-4142 for all private and non-VA providers who have treated him for his right hand during the appeal period, including Naval Hospital Jacksonville. Make two requests for the authorized records from each identified provider, unless it is clear after the first request that a second request would be futile. 3. Obtain any VA treatment records for the Veteran. Any negative search result should be noted in the record and communicated to the Veteran. 4. After all requested records have been associated with the claims file, schedule the Veteran for a hand and fingers examination by an appropriate clinician (or a telehealth interview if an in-person examination is not feasible) to determine the current severity of his service-connected disabilities affecting his right hand (i.e., right upper extremity ulnar neuropathy, right forearm limitation of flexion, and right forearm impairment of supination and/or pronation) for purposes of determining whether he would qualify for SMC based on loss of use of the right hand. The electronic claims file must be made available to the examiner for review in conjunction with the examination. All necessary tests should be performed (to specifically include range of motion studies for his hand and fingers), and the results reported. All pertinent symptomatology and findings must be reported in detail. Any appropriate Disability Benefits Questionnaire (DBQ) should be filled out for this purpose, if possible. The examiner should provide a medical opinion addressing any functional impairment (including the degree(s) of any additional range of motion loss) caused by any flare-ups or repeated use over time for each of the Veteran's service-connected disabilities affecting his right hand. If the examiner opines that he or she cannot offer an opinion as to additional functional loss during flare-ups or after repeated use over time without resorting to speculation based on the fact that the examination was not performed during a flare-up or after repeated use over time, then the examiner must elicit relevant information as to the Veteran's flares or ask him to describe the additional functional loss, if any, he suffered during flares and after repeated use over time and then estimate the Veteran's functional loss due to flares and after repeated use over time based on all of the evidence of record, including the Veteran's lay information, or explain why he or she cannot do so. The examiner must also provide an opinion specifically addressing whether it is at least as likely as not that no effective function of the Veteran's right hand remains other than that which would be equally well-served by an amputation stump at the site of election below the elbow with use of a suitable prosthetic appliance. A complete rationale for all opinions must be provided. If the clinician cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why an opinion would require speculation. The clinician must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the clinician must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular clinician. M. SORISIO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. B. Yantz, Counsel The Board's decision in this case is binding only with respect to the instant matter(s) decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.