Citation Nr: 25004034 Decision Date: 03/25/25 Archive Date: 03/25/25 DOCKET NO. 20-07 502 DATE: March 25, 2025 REMANDED Entitlement to a compensable disability rating for fracture residuals of the right fifth finger with posttraumatic arthritis and mallet finger deformity (right fifth finger fracture residuals) is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1974 to November 1974. In September 2021, he testified at a hearing held before a Veterans Law Judge at the Board of Veterans' Appeals (Board). A transcript of the hearing is of record. Although not certified for appeal, the Board has assumed jurisdiction of a claim for entitlement to TDIU. This issue was raised by the Veteran at his September 2021 hearing as part of his increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In December 2023 the Board denied a compensable disability rating for right fifth finger fracture residuals which the Veteran appealed to the Court of Appeals for Veterans Claims (Court). In November 2024, a Joint Motion for Remand (JMR) vacated and remanded the Board's decision for compliance with the directives contained therein. In the JMR the Veteran and the VA Secretary (the "parties") determined that the Board erred insofar as it failed to address the Veteran's claim for his entire right hand, to include the right fourth finger. right fifth finger fracture residuals The Veteran contends that the current 0 percent evaluation does not accurately portray the severity of his right fifth finger fracture residuals. At the September 2021 hearing, he testified that his service-connected fracture residuals involved his entire right hand and that he experiences chronic pain, swelling, loss of mobility, and loss of function as additional symptoms that support a higher evaluation. In a line of cases beginning with Bailey v. Wilkie, 33 Vet. App. 188 (2021) and continuing through Wilson v. McDonough, 35 Vet. App. 103 (2022) the Court effectively held that the requirement for a claim to be filed on a specific form is not required (or is met) when, during the processing of an evaluation claim a secondary service connection claim is reasonably raised and logically related to the evaluation claim. The Board finds that these cases do not apply to the Veteran as he does not contend that he has a separate and distinct right-hand disability but rather has asserted, rather consistently, that his right hand symptoms are residuals of his service-connected right fifth finger disability on appeal. VA treatment records and examination reports between 2017 and 2019 generally show the Veteran has reported pain, loss of grip strength, and swelling in the right hand and fingers since an in-service injury in 1975 when a truck hood slammed on his right hand fracturing his right fifth finger. These records include imaging studies from a March 2017 VA examination which show traumatic arthritis documented in multiple joints of the right hand, including the thumb and fingers. The examiner noted that the first (thumb) and second (index) metacarpophalangeal (MCP) were the most affected joints and were unrelated to the fifth finger fracture but did not otherwise address the remaining third and fourth fingers of the right hand. A recent right-hand X-ray from a January 2022 shows arthritic changes at the thumb, index, long (third) MCPs. The Veteran's more recent complaints have included increased stiffness, numbness, an inability to make a fist, and loss of use of the right hand. Accordingly, the Board finds that an updated examination would be helpful in determining the full extent of the Veteran's service-connected right fifth finger fracture residuals. Based on the foregoing, and consistent with the Court's November 2024 Order, the Board finds that this matter should be remanded to obtain the additional medical evidence necessary to adequately address the claim. TDIU The Veteran contends that he is unemployable due to his service-right fifth finger disability. See, e.g., September 2021 hearing transcript. Because the disability picture is unresolved, the TDIU claim is inextricably intertwined with the increased rating claim. Harris v. Derwinski, 1 Vet. App. 180, 183 (issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on a veteran's claim for the second issue). Thus, adjudication of this claim must be deferred until after completion of the actions requested below. The Veteran has not completed the VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability), which collects information about employment history and education necessary to determine a claim for TDIU. The Board advises him that this information is considered important for him to provide in this case, and that failure to provide the information, whether on the convenient form 21-8940, or in another format, may result in adverse consequences to the TDIU claim, potentially including denial. He should also be given the opportunity to complete the VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefits. The Board also notes that although the Veteran does not presently meet the schedular requirements for TDIU under 38C.F.R. § 4.16(a), he may still warrant entitlement to a TDIU on an extra-schedular basis. So, should he continue to fail to meet the criteria for a schedular TDIU, the file must be referred to the Director of Compensation Services for extra-schedular consideration. By this remand, the Board makes no determination, express or implied, as to the credibility of any statements on file. The matters are REMANDED for the following action: 1. Have the Veteran complete and return the VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability), and VA Form 21-4192 (Request for Employment Information in Connection with Claim for Disability Benefits). He should be informed that these or other statements of his education and employment history are essential to his TDIU claim. 2. Schedule the Veteran for a VA examination to determine the nature and extent of his service-connected right fifth finger fracture and any associated residuals. The examiner should elicit from the Veteran a detailed history regarding the onset and progression of relevant symptoms. Any medically indicated testing should be conducted and the results included in the examination report. The examiner should state whether it is at least as likely as not, (i.e., a 50 percent probability or greater) that the Veteran's right fifth finger fracture disability also involves his entire right hand and right fourth finger. As part of the opinion the examiner should describe all residuals associated with the right fifth finger fracture and in particular discuss the Veteran's reports of pain, swelling, numbness, weakened grip, inability to make a fist, and loss of mobility of the right hand and fingers as part of the symptoms or manifestations of the original injury. Also describe any neurological symptoms that are related to or caused by the right fifth finger fracture and indicate whether such impairment is mild, moderate, severe, or complete. Although an independent review of the entire claims file is required, the examiner's attention is directed to the following evidence, and he/she should address its significance to the Veteran's right fifth finger fracture residuals: *the objective medical findings in the service treatment records including the X-ray report documenting the original right fifth finger injury in August 1974; *the March 2017 VA examination report referencing traumatic arthritis in multiple joints of the right hand, including the thumb and fingers; *the August 2018 VA examination report noting the Veteran's post-service history of right thumb fracture and surgery in 1992; *the December 2019 VA hand/finger and peripheral nerve examination reports; * the September 2021 Board hearing testimony that he has experienced right hand pain ever since the in-service right fifth finger injury and that the fracture residuals affect his entire hand. The examiner should provide a clear rationale for the opinion offered, including discussion of the facts of this case and any medical studies or references relied upon. If he or she is unable to provide an opinion without resorting to speculation, they must provide a reasoned explanation for such conclusion. 3. If the schedular criteria for a TDIU are not met, refer the claim to the Director, Compensation Service, for extraschedular consideration under 38C.F.R. § 4.16(b). Thomas H. O'Shay Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.R. Bryant 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.