Citation Nr: 21076328 Decision Date: 12/23/21 Archive Date: 12/23/21 DOCKET NO. 13-44 032A DATE: December 23, 2021 REMANDED Entitlement to a rating in excess of 10 percent for residuals of trauma to the left hand with left thumb pain is remanded. Entitlement to a rating in excess of 10 percent for residuals of trauma to the left hand with left index finger pain is remanded. Entitlement to a rating in excess of 10 percent for residuals of trauma to the left hand with left long finger pain is remanded. Entitlement to a rating in excess of 10 percent for residuals of trauma to the left hand with left ring finger pain is remanded. Entitlement to a rating in excess of 10 percent for residuals of trauma to the left hand with left little finger pain is remanded. REASONS FOR REMAND The Veteran served on active duty from February 2003 to January 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from October 2012 and June 2013 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). By way of history, a September 2017 Board decision denied an increased evaluation in excess of 10 percent for the service-connected left-hand disability. The Veteran appealed this portion of the Board decision to the United States Court of Appeals for Veterans Claims (Court). Pursuant to an August 2018 Joint Motion for Partial Remand (JMPR), the parties agreed that remand was warranted because the Board failed to discuss a May 2017 VA wrist conditions medical examination. The parties agreed that the failure to discuss this examination, performed after a February 2017 hand surgery and showing a loss of hand grip, rendered the Board's statement of reasons or bases in support of its decision on this issue inadequate. The matter returned to the Board in December 2018 and the Board remanded the claim for the left-hand disability for a new VA hand and finger condition examination. This matter was most recently before the Board in November 2020, wherein the Board remanded the issue for an increase in the service-connected left-hand disability for a new VA examination. The matter has returned to the Board for adjudication. Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). 1. Entitlement to a rating in excess of 10 percent for residuals of trauma to the left hand with left thumb pain 2. . Entitlement to a rating in excess of 10 percent for residuals of trauma to the left hand with left index finger pain 3. Entitlement to a compensable rating for residuals of trauma to the left hand with left long finger pain 4. Entitlement to a compensable rating for residuals of trauma to the left hand with left ring finger pain 5. Entitlement to a rating in excess of 10 percent for residuals of trauma to the left hand with left little finger pain The Veteran contends that his service-connected left-hand disability warrants a higher evaluation than as currently assigned. As in initial matter, the Board notes that the Veteran was granted service connection for residuals of trauma to the left hand with a 10 percent evaluation under Diagnostic Code (DC) 5299-5228. In an October 2013 administrative decision, the RO changed the DC to 8599-8515, which was a neurologic code, and continued the 10 percent rating under DC 8599-8515. In the most recent rating decision from October 2021, the RO determined that the Veteran's condition was more reflective of a musculoskeletal injury and assigned separate ratings for the left thumb under DC 5228 with a 10 percent evaluation, left index finger under DC 5229 with a 10 percent evaluation, left long finger under DC 5229 with a 10 percent evaluation, left little finger under DC 5230 with a noncompensable evaluation, and left ring finger under DC 5230 with a noncompensable evaluation. Each disability was assigned the original effective date of May 29, 2012. The Board also notes that the Veteran has been awarded a temporary 100 percent convalescent rating for two separate surgeries related to his left hand in February 2018 and October 2019. As previously stated, the November 2020 Board decision remanded the issue for a new VA examination. The Board noted that Veteran had a VA examination in October 2019, but he had recently undergone surgery on his left wrist and consequently, was unable to complete the VA examination as relating to his left wrist and hand. The Board determined that a new VA examination was needed to reassess the severity of the Veteran's disability since his left wrist surgery. The Veteran was most recently afforded a VA examination in September 2021 for his left hand and fingers. The VA examiner stated that the current residuals of the Veteran's left-hand trauma are unrelated to a nerve condition and is appropriately evaluated under the hand/finger examination. She stated that he has continued pain of the left hand and difficulty grabbing objects since his last examination. The Veteran reported he did not experience flare-ups, but stated he has functional loss or functional impairment, including but not limited to after repeated use over time. In this regard, he stated he has functional loss/impairment in that he has difficulty grabbing objects, and difficulty closing his fist with his left hand. Upon examination, the Veteran exhibited pain on all five fingers and the examiner noted it causes functional loss. Regarding repeated use, the VA examiner was to comment on whether the Veteran had additional loss of function or range of motion after repeated use, and she stated there was no additional loss of motion. The examiner indicated that the procured evidence (statements from the Veteran) does not suggest pain, fatigability, weakness, lack of endurance, or incoordination which significantly limits functional ability with repeated use over time. However, earlier in the examination, the Veteran had reported that he has difficulty grabbing objects and difficulty closing his left fist with repeated use. As required by Sharp v. Shulkin, 29 Vet. App. 26 (2017), the VA examiner failed to sufficiently address possible functional impairment during repeated use. The examiner should have taken the Veteran's history and lay statements in account and then estimated additional functional loss with regard to additional loss of range of motion on repeated use. As such, the Board finds that the September 2021 VA examination is not adequate for adjudication purposes pursuant to Sharp. The matters are REMANDED for the following action: 1. Obtain VA treatment records from December 2021 to present. All reasonable attempts should be made to obtain any identified records. 2. After completion of the above, obtain an addendum opinion from the VA examiner who provided the September 2021 hand/finger examination (or if no longer available, an appropriate replacement) for the service-connected left-hand disability for the purpose of obtaining a retrospective opinion. If the examiner determines that an examination would assist in providing an adequate opinion, the examiner should schedule a new examination. The Veteran's record, to include a copy of this remand, should be made available to and reviewed by the examiner, and an opinion as follows is requested: Based upon information elicited from the Veteran and evidence of record, to the extent possible, provide a retrospective opinion concerning the degrees of limited motion for the Veteran's hand/fingers experienced with repeated use over time that would have been present at the September 2021 examination. Specifically, the Veteran noted that he has difficulty grabbing objects and difficulty closing his fist with his left hand on repeated use. The opinion must include range of motion of both active and passive motion, and in weightbearing and non-weightbearing, if possible. In considering any lay statements of record, the examiner should note that the Veteran is competent to attest to matters of which he had first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiners should provide a fully reasoned explanation. If the VA examiner is unable to report the degree of additional range of motion loss during repeated use, the VA examiner must explain why it is not feasible to render such an opinion. If the examiner cannot provide an opinion as to additional loss of motion on repeated use without resorting to mere speculation, the examiner must make clear that s/he has considered all procurable data (i.e., the information regarding frequency, duration, characteristics, severity, and/or functional loss elicited from the Veteran), but any member of the medical community at large could not provide such an opinion without resorting to speculation. If the inability to provide an opinion is due to the examiner's lack of requisite knowledge or training, then the RO should obtain an opinion from a medical professional who has the knowledge and training needed to render such an opinion. The examination report must include a complete rationale for any opinion provided. If the examiner cannot provide the requested opinion without resorting to speculation, the examiner should so state and explain why an opinion cannot be provided without resorting to speculation. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Kim, 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.