Citation Nr: 21011726
Decision Date: 03/02/21	Archive Date: 03/02/21

DOCKET NO. 08-25 157
DATE: March 2, 2021

REMANDED

Entitlement to special monthly compensation (SMC) for loss of use of the right hand is remanded.

REASONS FOR REMAND

In an April 2016 decision, the Board, in part, denied special monthly compensation (SMC) for loss of use of the right hand.  The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court).  The Court issued a Memorandum Decision in September 2017 setting aside the Board’s denial.  

In June 2018, the Board remanded the issue of entitlement to SMC for loss of use of the right hand for further development

The Board again denied claim in a December 2019 decision and the Veteran again appealed to the Court.  In an October 2019 Joint Motion for Remand (JMR), the parties agreed that the Board failed to ensure substantial compliance with the terms of its June 2018 remand.  See Stegall v. West, 11 Vet. App. 268, 271 (1998).

The Board’s June 2018 remand directed the Agency of Original Jurisdiction (AOJ) to afford the Veteran a VA examination to evaluate the functioning of his right hand.  The VA examiner was to opine whether it was at least as likely as not “that no effective function 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.”

An April 2019 VA examiner opined that it was not recommended that the Veteran get an amputation because he still had some limited function of the ulnar nerve.  But the parties to October 2019 JMR agreed that the examiner’s opinion did not explicitly address whether the Veteran’s right-hand functioning is comparatively the same as that which would result from an amputation and use of a prosthetic.

As such, a remand for an additional VA medical opinion is necessary.

The matters are REMANDED for the following action:

1. Obtain an additional opinion from an appropriate clinician to assess the current nature and severity of the Veteran’s right upper extremity disability.  It is up to the discretion of the reviewing clinician as to whether a new examination is necessary to provide an adequate opinion. 

After a review of the claims file, and examination of the Veteran if deemed necessary by the reviewing clinician, the reviewing clinician is asked to respond to the following inquiry with an explicit opinion:

Is it 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?  

 

2. Then readjudicate the claim.  If any benefit sought is not granted, the Veteran and his representative should be furnished an SSOC and given the requisite opportunity to respond before the case is returned to the Board.

 

 

DONNIE R. HACHEY

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	E. Mine, 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.