Citation Nr: 24007167 Decision Date: 02/09/24 Archive Date: 02/09/24 DOCKET NO. 15-19 763 DATE: February 9, 2024 REMANDED Entitlement to service connection for a recurrent right hand disability, other than right upper extremity radiculopathy, is remanded. Entitlement to service connection for a recurrent left foot disability, other than left lower extremity radiculopathy, is remanded. REASONS FOR REMAND The Veteran had active service from May 1977 to December 1993. In August 2018, the Board of Veterans' Appeals (Board), in pertinent part, denied service connection for a right hand disability and a left foot disability. The Veteran subsequently appealed to the United States Court of Appeals for Veterans Claims (Court). In July 2019, the Court granted the Parties' Joint Motion for Partial Remand; vacated those portions of the August 2018 Board decision that denied service connection for a right hand disability and a left foot disability; and remanded the issues to the Board for further action consistent with the Joint Motion for Partial Remand. In February 2021, the Board, in pertinent part, denied service connection for a right hand disability and remanded the issue of service connection for a left foot disability to the Agency of Original Jurisdiction for additional development of the record. The Veteran subsequently appealed to the Court. In November 2021, the Court granted the Parties' Joint Motion for Partial Remand; vacated that portion of the February 2021 Board decision which denied service connection for a right hand disability; and remanded the issue to the Board for further action consistent with the Joint Motion for Partial Remand. In April 2022, the Board, in pertinent part, denied service connection for a right hand disability other than right upper extremity radiculopathy and a left foot disability other than left lower extremity radiculopathy. The Veteran subsequently appealed to the Court. In July 2023, the Court set aside those portions of the April 2022 Board decision which denied service connection for a right hand disability other than right upper extremity radiculopathy and a left foot disability other than left lower extremity radiculopathy. and remanded those issues to the Board for further action consistent with its decision. 1. Entitlement to service connection for a recurrent right hand disability, other than right upper extremity radiculopathy, is remanded. A December 2019 treatment record by D. Estes M.D., states that that the Veteran was diagnosed with right hand degenerative joint disease of the hand and given a Kenalog injection. In its July 2023 decision, the Court determined that the Department of Veterans Affairs (VA) hand examinations of record are inadequate for rating purposes. The Board has no discretion and must remand the appeal for compliance with the Court's July 2023 Order. Stegall v. West, 11 Vet. App. 268 (1998); Forcier v. Nicholson, 19 Vet. App. 414 (2006). Clinical documentation dated after June 2020 is not of record. VA should obtain all relevant VA and private treatment records which could potentially be helpful in resolving the Veteran's claims. Murphy v. Derwinski, 1 Vet. App. 78 (1990); Bell v. Derwinski, 2 Vet. App. 611 (1992). 2. Entitlement to service connection for a left foot disability, other than left lower extremity radiculopathy, is remanded. In its July 2023 decision, the Court determined that the VA foot examinations of record are inadequate for rating purposes and did not substantially comply with the February 2021 Board Remand instructions. The Board has no discretion and must remand the appeal for compliance with the Court's July 2023 Order. Stegall v. West, 11 Vet. App. 268 (1998); Forcier v. Nicholson, 19 Vet. App. 414 (2006) The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for each private healthcare provider who has treated any right hand and left foot disabilities. Make two requests for the authorized records from all identified healthcare providers unless it is clear after the first request that a second request would be futile. 2. Obtain any VA treatment records not of record, to include those pertaining to treatment after June 2020. 3. Schedule the Veteran for a VA hand examination conducted by a medical doctor to assist in determining the current nature of any identified recurrent right hand disability and its relationship to active service. The examiner must review the record and should note that review in the report. A rationale for all opinions should be provided. The examiner should: (a.) Identify all right hand disabilities found on examination and in the record. If no right hand disability is diagnosed, the examiner should specifically state that fact. (b.) Opine whether it is at least as likely as not (at least an approximate balance of positive and negative evidence) that any identified recurrent right hand disability had its onset during active service or is related to any incident of service. The examiner should specifically address the December 2019 treatment record noting that the Veteran was diagnosed with right hand degenerative joint disease. (c.) Opine whether it is at least as likely as not (at least an approximate balance of positive and negative evidence) that any identified recurrent right hand disability is due to, or the result of the service connected disabilities. (d.) Opine whether it is at least as likely as not (at least an approximate balance of positive and negative evidence) that any identified recurrent right hand disability has been aggravated (increased in severity beyond the natural progression of the disorder) by the service connected disabilities. 4. Schedule the Veteran for a VA foot examination conducted by a medical doctor to assist in determining the nature of any identified left foot disability and its relationship to active service. The examiner must review the record and should note that review in the report. A rationale for all opinions should be provided. The examiner should: (a.) Identify all left foot disabilities found on examination and in the record. If no left foot disability is diagnosed, the examiner should specifically state that fact. (b.) Opine whether it is at least as likely as not (at least an approximate balance of positive and negative evidence) that any identified recurrent left foot disability had its onset during active service or is related to any incident of service. (c.) Opine whether it is at least as likely as not (at least an approximate balance of positive and negative evidence) that any identified recurrent left foot disability is due to, or the result of the service connected disabilities. (d.) Opine whether it is at least as likely as not (at least an approximate balance of positive and negative evidence) that any identified recurrent left foot disability has been aggravated (increased in severity beyond the natural progression of the disorder) by the service connected disabilities. J. T. HUTCHESON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Emily A. Kotroco 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.