Citation Nr: 22018863 Decision Date: 03/30/22 Archive Date: 03/30/22 DOCKET NO. 17-32 823 DATE: March 30, 2022 REMANDED Entitlement to a disability evaluation in excess of 10 percent for service-connected degenerative arthritis of the spine is remanded. Entitlement to service connection for a disability of the fourth finger of the left hand is remanded. REASONS FOR REMAND The Veteran served on active duty from September 2011 to September 2016. He testified at a videoconference hearing before the undersigned in November 2021. A transcript of hearing is of record. The Board notes that during the November 2021 Board hearing, the undersigned Veterans Law Judge (VLJ) took testimony as to the Veteran's claim for entitlement to service connection for anxiety. This was done with an understanding among all parties present that there was threshold legal question requiring further review as to whether the Board can adjudicate the merits of that claim. If not, the Board was to explain why such was the case in this decision. Upon review of the record, the Board regrettably finds that cannot adjudicate the Veteran's anxiety service-connection claim. This is because, after receiving a December 2016 rating decision denying entitlement to service connection for anxiety, the Veteran did not submit VA Form 21-0958 Notice of Disagreement (which was provided to the Veteran with the December 2016 notice of decision) indicating a desire to appeal the agency of original jurisdiction's denial. Rather, the VA Form 21-0958 - Notice of Disagreement received by VA in February 2017 only listed the spine and finger issues, which were also addressed in the December 2016 rating decision. The Veteran did not file a second VA Form 21-0958 within one year of receipt of notice of the December 2016 rating decision indicating a desire to appeal the anxiety claim. Insofar as the Veteran listed the anxiety issue as one he wished the Board to address on a VA Form 9 received in June 2017 (within one year of the December 2016 rating decision), VA's regulations prohibit the Board from accepting that request as a timely Notice of Disagreement with the December 2016 rating decision by regulation. Indeed, under 38 C.F.R. § 19.21 (formerly § 20.201), for every case in which the AOJ provides, in connection with its decision, a form for the purpose of initiating an appeal (as it did in this case), a Notice of Disagreement consists of a completed and timely submitted copy of that form. VA will not accept as a notice of disagreement an expression of dissatisfaction or disagreement with an adjudicative determination by the agency of original jurisdiction and a desire to contest the result that is submitted in any other format, including on a different VA form. [Emphasis added by Board]. Accordingly, because there was not timely disagreement with the AOJ's denial of service connection for anxiety on the form prescribed by the Secretary, the Board does not have the authority to adjudicate the claim on the merits at this juncture. The Veteran is invited to submit a Supplemental Claim with VA if he wishes the matter to reviewed again. In a January 2022 rating decision, the AOJ found clear and unmistakable error in the December 2016 rating decision that assigned a noncompensable disability rating for the Veteran's service-connected degenerative arthritis of the spine. Pursuant to 38 C.F.R. § 4.59, the AOJ awarded a 10 percent disability rating based on evidence of painful motion. 1. Entitlement to a disability evaluation in excess of 10 percent for service-connected degenerative arthritis of the spine is remanded. While the record contains a contemporaneous October 2016 examination addressing the severity of the Veteran's arthritis of the spine, the examination does not adequately address what functional impairment, if any, may exist during flare-ups. Indeed, the Veteran described flare-ups of the back at the time of the examination with pain so bad that he could barely move. However, when prompted, the examiner simply stated that pain, weakness, fatigability, or incoordination did not significantly limit the Veteran's functional ability during a flare-up without reconciling this finding with the Veteran's own description. Remand is warranted so that the Veteran may be afforded an examination that adequately addresses his contentions regarding limited range of motion during flare-ups. 2. Entitlement to service connection for a disability of the fourth finger of the left hand is remanded. The Veteran asserts that he has a disability of the fourth finger of the left hand that began during service and is manifested by occasional pain, swelling, and loss of range of motion. He stated that his finger was injured during training and, since there were not medical personnel available, he self-treated the injury by taping his finger. See November 2021 Hearing Transcript. The Veteran underwent an examination in October 2016, at which time the examiner noted there was no pathology to diagnose the Veteran with a finger condition. However, during the examination, the Veteran described occasional flare-ups of pain that rendered his finger unusable. During the subsequent November 2021 Board hearing, the Veteran noted that during a flare-up, the finger becomes unusable and grip strength in that finger is affected. The United States Court of Appeals for the Federal Circuit has determined that where the evidence shows that pain reaches the level of a functional impairment of earning capacity, a disability for VA compensation purposes exists, even if there is no underlying diagnosis. See Saunders v. Wilkie, 886 F.3d 1356 (2018). Because there is ambiguity as to whether a current disability exists for VA purposes, and because it appears the Veteran's claimed condition may have worsened in severity since last assessed (which may have a bearing on whether a current disability exists under Saunders), a new assessment should be scheduled on remand. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination to determine the current severity of his service-connected degenerative arthritis of the spine. 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. In so doing, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate of the additional impairment, in terms of range of motion loss, due to flare-ups based on the other evidence of record and the Veteran's statements. 2. Schedule the Veteran for an appropriate examination to determine the nature and etiology of any disability of the fourth finger of the left hand. The claims folder must be made available to and reviewed by the examiner. The examiner should take a history from the Veteran as to the progression of his claimed disability, and upon review of the file, interview and examination of the Veteran, the examiner should provide responses to the following, as appropriate: a) Please indicate whether the Veteran has a disability affecting the fourth finger of his left hand. Please note that a disability exists for VA purposes if pain manifests in functional impairment. b) Is it at least as likely as not (approximately 50 percent or greater probability) that the Veteran has a disability of the fourth finger of the left hand that had onset in, or is otherwise related to the Veteran's period of service? In answering the above, the examiner should consider the Veteran's report that he did not seek treatment for his hand injury, but rather self-treated injuries. If there is a reason, from a medical perspective, that supports or calls into question the Veteran's reported history of symptoms, this should be made clear. 3. Then, readjudicate the issues on appeal. V. Chiappetta Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Bristow Williams, 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.