Citation Nr: 21075026 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 16-19 770A DATE: December 17, 2021 REMANDED Entitlement to an initial rating in excess of 10 percent for right ankle sprain and fracture is remanded. Entitlement to an initial compensable rating for deviated septum and rhinitis is remanded. Entitlement to service connection for right hand arthritis with history of 5th metacarpal fracture is remanded. Entitlement to a total disability rating for individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1972 to September 1978. These matters are before the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). A Board hearing was held before the undersigned in January 2019. A transcript of the hearing is of record. These matters were previously before the Board in April 2020 when they were remanded for further development. A December 2020 rating decision awarded service connection for right and left knee disabilities. As this decision represents a full grant of the knee issues on appeal, the matters are resolved and will not be further addressed. 1. Entitlement to an initial rating in excess of 10 percent for right ankle sprain and fracture is remanded. 2. Entitlement to an initial compensable rating for deviated septum and rhinitis is remanded. 3. Entitlement to service connection for right hand arthritis with history of 5th metacarpal fracture is remanded. In an August 2021 Appellant Brief, the Veteran's representative challenged the November 2020 examiner's competency and asked for the examiner's curriculum vitae and other information about the examiner's qualifications that demonstrate that she was competent to administer the examinations. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that "once the veteran raises a challenge to the competency of the medical examiner . . . [the VA] must satisfy its burden of persuasion as to the examiner's qualifications. The Board must then make factual findings regarding the qualifications and provide reasons and bases for concluding whether or not the medical examiner was competent to provide the opinion." Francway v. Wilkie, 940 F.3d 1304, 1308 (Fed. Cir. 2019). The Federal Circuit added that "the veteran must have the ability to secure from the VA the information necessary to raise the competency challenge. Once the request is made for information as to the competency of the examiner, the veteran has the right, absent unusual circumstances, to the curriculum vitae and other information about qualifications of a medical examiner. This is mandated by the VA's duty to assist." Id. Therefore, pursuant to Francway and the Veteran's representative's request, VA must provide the Veteran with the examiner's curriculum vitae and any other information regarding the qualifications of the November 2020 examiner. Additionally, regarding the Veteran's claim for service connection for right hand arthritis, the Board notes remand for a new medical opinion is required. Specifically, the Board finds there are conflicting medical reports regarding whether the Veteran has a current right-hand disability. On May 2013 VA examination, the examiner diagnosed degenerative arthritis of the right hand following completion of an X-ray; however, the November 2020 examiner concluded that the Veteran did not have a current diagnosis for a right-hand disability, after completion of an X-ray. As a result of this conclusion, the examiner did not provide a complete medical opinion regarding the right hand. Service connection may only be granted where there is a current disability. 38 U.S.C. § 1110; Rabideau v. Derwinski, 2 Vet. App. 141 (1992); Brammer v. Derwinski, 3 Vet. App. 223 (1992). However, the requirement that a current disability be present is satisfied when a claimant has a disability at any time during the pendency of a claim. McClain v. Nicholson, 21 Vet. App. 319 (2007). As the May 2013 VA examination report reflects that the Veteran has had a right-hand disability during the period on appeal, the Board finds that remand is necessary in order to obtain the opinion requested by the prior remand. Entitlement to TDIU is remanded. The record reflects that the Veteran may not be able to work as a result of his right ankle disability. Consequently, the issue of entitlement to a TDIU is inextricably intertwined with the claim of entitlement to an increased rating for right ankle sprain and fracture being remanded to the Agency of Original Jurisdiction (AOJ). See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Therefore, the issue of entitlement to TDIU must also be remanded. The matters are REMANDED for the following action: 1. Provide the Veteran and his attorney a copy of the November 2020 VA examiner's curriculum vitae and any other information regarding the examiner's qualifications. This information should also be associated with the Veteran's claims file. Information may be redacted as warranted. See Francway v. Wilkie, 940 F.3d 1304 (Fed. Cir. 2019). If unable to obtain any of the above requested information, notify the Veteran and his representative of the inability to obtain it in accordance with 38 C.F.R. § 3.159(e). 2. Provide the claims file to an appropriate VA examiner other than the November 2020 examiner to determine the nature and severity of any current right-hand disability. If the examiner determines that examination of the Veteran, including via telehealth, is necessary to answer the questions posed, then such should be scheduled. Following a review of the claims file, the examiner is asked to respond to the following: (a) Is there clear and unmistakable evidence (undebatable) that the Veteran had a right-hand disability that pre-existed the Veteran's entry into service? (b) If the examiner finds that a right-hand disability clearly and unmistakably preexisted service, is there clear and unmistakable evidence (undebatable) that such disability was not aggravated by service? (c) If the examiner finds a right-hand disability did not clearly and unmistakably preexist service or was not clearly and unmistakably aggravated by service, then is it at least as likely as not (probability of 50 percent or more) that the diagnosed right-hand disability was incurred in service or was otherwise caused by service or any incident therein? A complete rationale for all opinions must be provided that addresses the Veteran's assertions. If the clinician cannot provide a requested opinion or assessment 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 examiner. 3. Provide any needed notice and complete any development required on the claim for TDIU and adjudicate the matter of entitlement to a TDIU rating, to (Continued on next page) include consideration of whether referral for an extraschedular evaluation under 38 C.F.R. § 4.16(b) is required. M. SORISIO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Jiggetts 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.