Citation Nr: 21077012 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 18-05 150 DATE: December 28, 2021 REMANDED Entitlement to a rating in excess of 10 percent for right hand finger disabilities (characterized as residuals of fourth and fifth finger fractures prior to January 28, 2021, and third, fourth, and fifth digit contracture from that date), is remanded. REASONS FOR REMAND The appellant is a Veteran who served on active duty from September 1986 to September 1991. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2016 rating decision. In January 2021, a virtual Board hearing was held before the undersigned; a transcript is in the Veteran's record. Later in January 2021, the case was remanded for additional development. An interim (February 2021) rating decision granted service connection for a right hand third (long) finger disability, effective January 28, 2021, and evaluated it in combination with the fourth and fifth finger residuals. Accordingly, the issue has been recharacterized as indicated above. Entitlement to a rating in excess of 10 percent for right hand finger disabilities (characterized as residuals of fourth and fifth finger fractures prior to January 28, 2021, and third, fourth, and fifth digit contracture from that date) The Board is aware that this matter has been remanded before (and regrets the delay inherent with another remand); but because there was not substantial compliance with previous remand instructions (including as asserted by the Veteran's representative in a December 2021 argument), another remand is necessary. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In January 2021, the Board remanded this matter for several reasons: 1) for a new examination to ascertain the current nature and severity of the disability; 2) for a medical opinion to ascertain whether the Veteran's fourth and fifth finger fractures disability also involves his third (long) finger (as he asserted at the January 2021 Board hearing); 3) for a medical provider to opine whether the disability meets or approximates the criteria in Codes 5218 or 5219 (for unfavorable ankylosis of three or two digits, respectively), 5222 or 5223 (for favorable ankylosis of three or two digits, respectively), or some other appropriate Diagnostic Code (Code); and 4) for a medical provider to distinguish, to the extent possible, the symptoms (and related impairment) attributable to the Veteran's service-connected finger disability from any attributable solely to a co-existing nonservice-connected (such as frostbite residuals). [At the time of the January 2021 remand, a claim of service connection for frostbite residuals was pending.] On January 2021 VA (fee basis) examination, the examiner noted that the Veteran's right middle finger is stuck in extension (not full extension) and that his ring and little fingers are flacid. She did not opine whether the disability meets or approximates the criteria for favorable or unfavorable ankylosis of the digits (or opine which Code is most appropriate for rating purposes) as requested. [Significantly, in an interim precedential case, Chavis v. McDonough, 34 Vet. App. 1 (2021), the U.S. Court of Appeals for Veterans Claims (CAVC) held (albeit in a claim seeking an increased rating for a low back disability) that the Board must consider whether a veteran's symptoms "resulted in the functional equivalent of ankylosis."] Furthermore, the examiner did not distinguish the symptoms attributable to the service-connected finger disability from those solely attributable to the Veteran's non-service connected frostbite residuals. [A November 2021 rating decision denied service connection for frostbite residuals of the bilateral hands and feet.] Accordingly, remand for an addendum advisory medical opinion to address the remaining medical questions noted above is necessary. The matter is REMANDED for the following: 1. Secure for the record updated (to the present, any not already associated with the record) complete clinical records of all VA evaluations and treatment the Veteran has received for his service-connected right-hand fingers disability. 2. Then, return the record to the examiner who conducted the January 2021 hand and finger conditions examination for review and an addendum opinion. If that provider is unavailable or unable to provide the addendum opinions sought, forward the record to another appropriate provider for review and the opinion sought. [If further examination of the Veteran is deemed necessary, such should be arranged.] On review of the record (to include this Remand, the January 2021 VA hand and finger conditions examination reports, the February 2021 rating decision, and any records received pursuant to the development ordered above), the consulting provider should: (a) Review 38 C.F.R. § 4.71a, Codes 5216-5230 (including the criteria following Code 5215 and immediately prior to Code 5216), and opine (with explanation) whether the Veteran's right hand third, fourth, and fifth finger disability (as it presents on examination) meets or approximates (is most appropriately rated under) the criteria in Codes 5218, 5219, 5222, 5223, or some other appropriate Code. The rationale for this opinion should address whether the right hand third, fourth, and/or fifth fingers are manifested by the functional impairment that is equivalent to (favorable or unfavorable) ankylosis, with citation to the supporting factual data. (b) To the extent possible, distinguish symptoms (and related impairment) attributable to the Veteran's service-connected residuals of right hand third, fourth, and fifth finger fractures disability from any attributable solely to a co-existing nonservice-connected disability (such as a vascular disease or frostbite residuals). (c) Describe in detail the impact that the service-connected right hand third, fourth, and fifth finger disability (not including any symptoms attributable solely to frostbite residuals) has on the Veteran's daily activity and occupational functioning. Include rationale with all opinions, citing to supporting factual data and medical principles, as deemed appropriate. GEORGE R. SENYK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Dupont, 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.