Citation Nr: 18131285
Decision Date: 08/31/18	Archive Date: 08/31/18

DOCKET NO. 16-01 121
DATE:	August 31, 2018
ISSUES
1. Evaluation of tenosynovitis, middle finger; right hand; currently assigned a noncompensable rating.
2. Evaluation of right knee instability status post anterior cruciate ligament repair, currently evaluated as 20 percent disabling.
3. Evaluation of status post anterior cruciate ligament repair, right knee, currently evaluated as 10 percent disabling.
4. Evaluation of left wrist carpal tunnel syndrome, currently evaluated as 10 percent disabling.
5. Evaluation of right wrist carpal tunnel syndrome, currently evaluated as 10 percent disabling.
REMANDED
Evaluation of tenosynovitis, middle finger; right hand; currently assigned a noncompensable rating is remanded.
Evaluation of right knee instability status post anterior cruciate ligament repair, currently evaluated as 20 percent disabling is remanded.
Evaluation of status post anterior cruciate ligament repair, right knee, currently evaluated as 10 percent disabling is remanded.
Evaluation of left wrist carpal tunnel syndrome, currently evaluated as 10 percent disabling is remanded.
Evaluation of right wrist carpal tunnel syndrome, currently evaluated as 10 percent disabling is remanded.
REASONS FOR REMAND
The Veteran served on active duty from July 2000 to July 2004. 
This matter is before the Board of Veterans Appeals (Board) on appeal from a August 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas.   

1. Evaluation of tenosynovitis, middle finger; right hand; currently assigned a noncompensable rating is remanded.
By way of background, the Veteran was afforded a July 2011 VA examination.  Upon clinical examination, the Veteran reported pain at the MCP joint of the right middle finger which radiates up to the wrist.  There was a nodule on the flexor tendon of the right middle finger with some mild triggering.  The VA examiner provided a diagnosis of tenosynovitis, right middle finger, right hand.
VA treatment records show ongoing complaints of pain, numbness, and weakness in the middle finger of the right hand.  The Veteran reported that it impairs his ability to grasp and hold objects.  In October 2016, he reported locking of the middle finger.
In the January 2016 Notice of Disagreement (NOD) with associated Brief, the Veteran through his former counsel avers in part, “The Board has to explain how it considered and weighted the facts favorable to the Veteran.  Comparatively, in the current case, the VA has failed to enumerate the requirements for any higher evaluation; it simply concludes its decision with the favorable evidence, but it never explains why that evidence doesn’t meet the requirements for a higher evaluation or even what are those requirements.”
In preliminarily addressing the Veteran’s contentions, tenosynovitis, middle finger; right hand is current rated under the Schedule of Ratings for the musculoskeletal system.  See 38 C.F.R. § 4.71a.  Under Diagnostic Code (DC) 5229-5024, a noncompensable evaluation is assigned for limitation of motion of the index or long finger with a gap of less than one inch (2.5 cm) between the fingertip and the proximal transverse crease of the palm, with the finger flexed to the extent possible, and; extension is limited by no more than 30 degrees.  A higher compensable evaluation is not warranted unless there is limitation of motion with a gap of one inch (2.5 cm.) or more between the fingertip and the proximal transverse crease of the palm, with the finger flexed to the extent possible, or; with extension limited by more than 30 degrees.
Here, the Board notes the significant passage of time since the July 2011 VA examination.  The Veteran has continued to report pain and contend that his condition warrants a higher rating.  The Board notes that generally a new VA examination is not warranted based on the mere passage of time since an otherwise adequate VA examination was conducted.  See VAOPGCPREC 11-95 (April 7, 1995).  However, as previously described, VA treatment records indicate a possible worsening of the Veteran’s disability.  Resolving all doubt in favor of the Veteran and in view of the his contentions, a new VA examination is necessary so that the current state of the Veteran’s disability can adequately be evaluated.  See Snuffer v. Gober, 10 Vet. App. 400 (1997) (requiring a new examination where the claimant asserts that a disability has increased in severity since the time of the last VA examination) see also 38 C.F.R. § 3.327 (a reexamination will be requested whenever there is a need to verify the current severity of a disability).   Consequently, the Board finds that a supplemental VA examination is warranted. 

2. Evaluation of right knee instability status post anterior cruciate ligament repair, currently evaluated as 20 percent disabling is remanded.
The Board incorporates its discussion from the section immediately above by reference.
The Veteran was most recently afforded a VA knee examination in December 2016.  Regarding whether pain, weakness, fatigability or incoordination significantly limit functional ability with repeated use over time, the VA examiner was unable to say without mere speculation.  The VA examiner noted, “not examined after repeated use.”  Regarding whether pain, weakness, fatigability or incoordination significantly limit functional ability with flare ups, the VA examiner was unable to say without mere speculation because the Veteran was “not examined during [a] flareup.”  
In the January 2016 Notice of Disagreement with associated Brief, the Veteran through his former counsel avers in part, “The Veteran has struggled with this condition for years, but only recently it became so severe that it warranted an increase in VA benefits.”  They described the nature of the Veteran’s increased impairment.  They noted functional loss is present due to weakness and pain, citing DeLuca v. Brown, 8 Vet. App, 202, 206 (1995).
The Veteran has undergone several knee surgeries, during which times he has been awarded a temporary total rating for convalescence.  The most recent period was effective August 4, 2017.  
In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 creates a requirement that certain range-of-motion testing be conducted whenever possible in cases of painful disabilities.  The final sentence of that section provides, in relevant part, that “[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and non weight-bearing...”  The Court found that a VA examination of the joints must, wherever possible, include the results of the range-of-motion testing described in the final sentence of § 4.59.  
Here, the December 2016 VA knee examination does not comply with Correia because it does not include range-of-motion testing on active, passive, weight-bearing, and non weight-bearing or a statement to the effect that such testing was not possible or unnecessary in this case, such that the effects of pain on the Veteran’s functioning may be adequately assessed under the provisions of 38 C.F.R. § 4.59.  Notably, in Correia, the Court found similar range of motion testing to be inadequate. 
Finally, Sharp v. Shulkin, 29 Vet. App. 26 (2017) addressed the adequacy of a VA examiner’s opinion concerning additional functional loss during flare-ups of a musculoskeletal disability, pursuant to DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court held that before a VA examiner opines that he or she cannot offer an opinion as to additional functional loss during flare-ups without resorting to speculation based on the fact that the examination was not performed during a flare-up, the examiner must “[E]licit relevant information as to the veteran’s flares or ask him to describe the additional functional loss, if any, he suffered during flares and then estimate the veteran’s functional loss due to flares based on all the evidence of record, including the veteran’s lay information, or explain why [he or] she c[an] not do so.” Sharp, 29 Vet. App. at 35.
Consequently, the Veteran must be afforded a new VA right knee examination that complies with 38 C.F.R. § 4.59 and includes all necessary information in view of Correia, DeLuca, and Sharp.

3. Evaluation of status post anterior cruciate ligament repair, right knee, currently evaluated as 10 percent disabling is remanded.
The Board incorporates its discussion from the sections immediately above by reference.

4. Evaluation of left wrist carpal tunnel syndrome, currently evaluated as 10 percent disabling is remanded.
The Board incorporates its discussion from the sections above by reference.
The Veteran was afforded a July 2011 VA examination of the wrists.  The Veteran reported experiencing numbness and tingling in his hand with driving.  Upon physical examination, there were positive Tinel’s and Phalen’s Tests.  His neurovascular sensory systems were intact, and distal pulses were 2+ and equal, with no obvious intrinsic atrophy.  Grip strength was also noted within normal limits.  The VA examiner rendered a diagnostic impression of bilateral carpal tunnel syndrome.
In the January 2016 Notice of Disagreement with associated Brief, the Veteran through his former counsel avers in part, “His hands turn numb while doing activities such as driving, making it very dangerous for him to function in this way.  The pain in his hands is extremely severe; he claims that if he picks up anything at all, it feels like crushed glass in his hands.”
As previously described, VA treatment records and the Veteran’s lay reports indicate a possible worsening of the Veteran’s disability.  There has also been a significant passage of time.  Resolving all doubt in favor of the Veteran and in view of the Veteran’s contentions, a new VA wrist examination is necessary so that the current state of the Veteran’s disability can adequately be evaluated.  See Snuffer v. Gober, 10 Vet. App. 400 (1997) (requiring a new examination where the claimant asserts that a disability has increased in severity since the time of the last VA examination) see also 38 C.F.R. § 3.327 (a reexamination will be requested whenever there is a need to verify the current severity of a disability).  Consequently, a remand is necessary to evaluate the current severity of his right and left wrist disabilities.


5. Evaluation of right wrist carpal tunnel syndrome, currently evaluated as 10 percent disabling is remanded.
The Board incorporates its discussion from the sections above by reference.

The matters are REMANDED for the following action:
1. If the Veteran identifies other evidence, obtain updated copies of the Veteran’s VA treatment records, and associate them with the Veteran’s claims folder.
2. Schedule the Veteran for a VA examination by an appropriate examiner to determine the current degree of severity of his service-connected tenosynovitis, middle finger; right hand.  
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.  To the extent possible, the examiner should identify any symptoms and functional impairments due to the tenosynovitis, middle finger; right hand alone and discuss the effect of the Veteran’s disability on any occupational functioning and activities of daily living.  If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training).
A complete rationale should be provided for all opinions expressed.
3. Schedule the Veteran for a VA examination by an appropriate examiner to determine the current degree of severity of his service-connected right knee disabilities.  
Pursuant to Correia v. McDonald, 28 Vet. App. 158 (2016), the examiner should record the results of range-of motion testing for pain, in degrees, on both active and passive motion and in weight-bearing and non weight bearing for the right knee.  If any, the extent of any incoordination, weakened movement, and excess fatigability on use should also be described by the examiner.
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.  To the extent possible, the examiner should identify any symptoms and functional impairments due to the right knee disabilities alone and discuss the effect of the Veteran’s right knee disabilities on any occupational functioning and activities of daily living.  If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training).
A complete rationale should be provided for all opinions expressed.
4. Schedule the Veteran for a VA examination by an appropriate examiner to determine the current degree of severity of his service-connected right and left wrists.  
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.  To the extent possible, the examiner should identify any symptoms and functional impairments due to the right and left wrist disabilities alone and discuss the effect of the Veteran’s wrist disabilities on any occupational functioning and activities of daily living.  If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training).
A complete rationale should be provided for all opinions expressed.


(Continued on the next page.)
 

5. After completing the above, and any other necessary development, the claims remaining on appeal must be readjudicated in light of all pertinent evidence and legal authority.  If any benefits sought are not granted, issue the Veteran an appropriate supplemental statement of the case (SSOC).
 
MICHAEL A. PAPPAS
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	B. Bodi, Associate Counsel
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