Citation Nr: 21069976 Decision Date: 11/22/21 Archive Date: 11/22/21 DOCKET NO. 17-41 470 DATE: November 22, 2021 REMANDED Entitlement to an initial rating in excess of 30 percent for ulnar neuropathy, upper right extremity (RUE) is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1993 and December 1993 with additional periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) between December 1992 and December 1998. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2016 rating decision of a regional office (RO) of the Department of Veterans Affairs. The RO assigned an initial 30 percent rating for the Veteran's ulnar neuropathy of the RUE. The Veteran disagreed with the initial rating and filed a substantive appeal in August 2017. See August 2017 VA Form 9. In July 2019, the Board denied the Veteran's ulnar neuropathy claim for a higher initial rating. See July 2019 Board Decision. The Veteran appealed the July 2019 Board decision to the United States Court of Appeals for Veterans Claims (Court). In April 2021, the Court issued a Memorandum Decision, in pertinent part, vacating the Board's decision which denied an initial rating in excess of 30 percent for ulnar neuropathy of the RUE. See April 2021 Memorandum Decision. The Court noted that the Veteran endorsed symptoms of right arm numbness and tingling which awakened him at night and that the January 2016 VA examination did not discuss the Veteran's symptoms. Importantly, the Court also found that the Board did not address the Veteran's symptoms and how it weighed his lay statements. Id. The matter now returns to the Board for adjudication consistent with the April 2021 Court decision. 1. Ulnar neuropathy RUE The Board finds a remand is warranted to ensure compliance with the April 2021 Memorandum Decision. Specifically, a new VA examination for the Veteran's ulnar neuropathy RUE is necessary for the reasons discussed below. As noted in the introduction, the Court noted that the January 2016 VA examination did not address the Veteran's reported symptoms. See April 2021 Memorandum Decision. The Veteran reported that his ulnar nerve gets very irritated for a prolonged time when he puts pressure on it, and that he has numbness and tingling which awakens him at night. See January 2016 Correspondence, Addendum to VA Form 21-0858, Notice of Disagreement (NOD). The Veteran also endorsed intermittent right ulnar nerve pain which was severe at times. Id. The January 2016 VA examiner notes that the Veteran experiences numbness and tingling in his fourth and fifth digits. See January 2016 VA Peripheral Nerves Disability Benefits Questionnaire (DBQ). However, as noted by the Court in the April 2021 Memorandum Decision, the January 2016 VA examiner did not address the Veteran's lay assertions regarding his symptoms. As such, the January 2016 VA examination opinion is inadequate pursuant to Miller v. Wilkie, 32 Vet. App. 249 (2020), which requires an examiner to address a veteran's lay reports of his medical history and symptoms. The Board also finds that the January 2016 VA examiner found that the Veteran had no intermittent pain is directly contradicted by the Veteran's statements in his NOD addendum wherein the Veteran reports severe intermittent pain at times. As such, without additional clarification of the Veteran's ulnar neuropathy of the RUE symptoms, the Board finds that the January 2016 VA examination report is also inadequate for rating purposes. Thus, based on the foregoing the Board finds that a remand is necessary to obtain a VA examination to assess the current nature and severity of the Veteran's ulnar neuropathy of the RUE symptoms. The Veteran's ulnar nerve neuropathy of the RUE should also include (if possible) a retrospective medical opinion to capture the severity and functional impact of the Veteran's ulnar nerve neuropathy for the entire appeal period. See Chotta v. Peake, 22 Vet. App. 80(2008) (when there is an absence of medical evidence during a certain period of time, a retroactive medical evaluation may be warranted). The Board notes the claims file reflects that the Veteran has been receiving treatment from the Dallas VA Medical Center (VAMC), to include the Fort Worth VA Clinic, and that records dated through September 2019 are associated with the file; however, more recent records may exist. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016). The matters are REMANDED for the following action: 1. Obtain the Veteran's comprehensive VA treatment records for the period from September 2019 to the present, to include from VA medical centers, clinics, counseling centers, hospitals, and outpatient treatment centers. See 38 C.F.R. § 3.159(c)(3) (2020). The Board observes that the Veteran has been treated at Dallas VAMC and Fort Worth VA Clinic. 2. Provide the Veteran with an examination to determine the severity of his service-connected right ulnar nerve neuropathy. All pertinent testing should be accomplished, and all clinical findings reported in detail. The claims folder should be available to the examiner and reviewed in conjunction with the examination. 3. The examiner should describe the nature and severity of all manifestations of the Veteran's ulnar neuropathy of the RUE. 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. 4. The examiner is asked to address the Veteran's assertions that the ulnar nerve which gets very irritated for a prolonged time when he puts pressure on it, that he has numbness and tingling which awakens him at night, and that he has occasional severe numbness. See January 2016 Correspondence, Addendum to VA Form 21-0858. The Veteran is competent to report injuries and symptoms and his reports must be considered in formulating the requested opinions. If the Veteran's reports are discounted, the examiner should provide a reason for doing so. 5. The examiner should provide a RETROSPECTIVE OPINION dating back to September 2014, which is the beginning of the appeal period in order to account for the entire appeal period on appeal. See Chotta, 22 Vet. App. at 80 (when there is an absence of medical evidence during a certain period of time, a retroactive medical evaluation may be warranted). If the examiner is unable to provide a retrospective opinion, s/he should state the basis for this conclusion. If it is not feasible to determine any of the above-requested information without resort to speculation, the examiner must provide an explanation for why this is so. It must be clear that the inability to provide an opinion is predicated on lack of knowledge among the "medical community at large" and not the insufficient knowledge of the specific examiner. 6. The examiner should address whether the Veteran experiences functional loss of the right upper extremity due to his service-connected ulnar neuropathy of the RUE. If any dysfunction exists due a non-service-connected disability, such should be identified, explained, and discussed in detail. Loss of use of a hand will be held to exist when no effective function remains other than that which would be equally well served by an amputation stump at the site of election below elbow with use of a suitable prosthetic appliance. The determination will be made on the basis of the actual remaining function, whether the acts of grasping, manipulation, etc., could be accomplished equally well by an amputation stump with prosthesis. 7. THE AOJ MUST REVIEW THE CLAIMS FILE AND ENSURE THAT THE FOREGOING DEVELOPMENT ACTION HAS BEEN COMPLETED IN FULL. IF ANY DEVELOPMENT IS INCOMPLETE, APPROPRIATE CORRECTIVE ACTION MUST BE IMPLEMENTED. IF ANY REPORT DOES NOT INCLUDE ADEQUATE RESPONSES TO THE SPECIFIC OPINIONS REQUESTED, IT MUST BE RETURNED TO THE PROVIDING EXAMINER FOR CORRECTIVE ACTION. YVETTE R. WHITE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Lilly, 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.