Citation NR: 9716994 Decision Date: 05/16/97 Archive Date: 05/29/97 DOCKET NO. 91-48 968 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to an increased evaluation for scar residuals of shell fragment wounds involving the right leg , currently rated as 10 percent disabling. 2. Entitlement to an increased (compensable) evaluation for residuals of a shell fragment wound of the right buttock. 3. Entitlement to an increased (compensable) evaluation for residuals of shell fragment wounds to the posterior aspect of the left leg. 4. Entitlement to an increased (compensable) evaluation for residuals of a shell fragment wound of the left hip and buttock. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD S. L. Smith, Counsel REMAND The veteran had active military service from June 1967 to April 1970. This case was originally before the Board of Veterans’ Appeals (Board) on appeal from rating decisions of the Nashville, Tennessee, Regional Office (RO) that had denied increased evaluations for the veteran’s service connected shell fragment wound (SFW) residuals. The Board has repeatedly remanded this case to the RO for (re)scheduling of VA orthopedic and neurologic evaluations of the veteran’s service connected SFW residuals. Such examinations have not been accomplished. The Board has determined that the case must be remanded yet again to the RO for the scheduling of such examinations to determine the current nature and severity of the service connected disabilities. In addition, the Board notes that in July 1996 the veteran canceled his request for a personal hearing before the Board due to the fact that he had not yet been afforded the VA examinations requested in the Board’s 1993 and 1994 Remand decisions. Thus, on Remand, following completion of the requested development, the RO should also ascertain whether the veteran wishes to exercise his right to a personal hearing. Thus, the case is REMANDED to the RO for the following actions: 1. The RO should obtain and associate with the claims folder all of the veteran’s current VA medical records, including inpatient and outpatient. 2. The veteran should be contacted by telephone to confirm his correct mailing address. The most recent mailing address that the Board notes in the record is: P.O. Box 5871, Knoxville, Tennessee 37928. Notification to report for an examination should then be sent to this address or any other address the veteran might provide over the telephone. Copies of all notifications, particularly which instruct the veteran to report at a given date and time, should be associated with the claims folder. 3. The RO should schedule the veteran for VA examination by specialists in orthopedics and neurology in order to determine the nature and severity of his SFW residuals of the lower extremities, to include both buttocks and left hip. Following the examination, the examiner is requested to: (1) describe all symptomatology attributable to the service-connected SFW residuals, including all functional impairment associated therewith; (2) state whether there is limited motion, increased functional loss due to painful use, weakness, excess fatigability, incoordination or impaired ability to execute skilled movements smoothly which is due to service connected disability; and (3) address the nature, severity and extent of any visible shrapnel wound scars. The examination(s) should be conducted and reported in accordance with the guidelines set forth in the VA Physician’s Guide for Disability Evaluation Examinations. The claims folder must be made available to the examiner(s) for review purposes prior to the examination, and the complete examination report, including any x-ray reports, should be associated with the claims folder. 4.. After the development requested above has been completed to the extent possible, the RO should readjudicate the veteran’s claims for increased evaluations for the SFW residuals of the right leg, left leg, right buttock and left hip and buttock. In this regard, the RO should consider DeLuca v. Brown, 8 Vet.App. 202 (1995), the provisions of 38 C.F.R. §§ 4.40, 4.45 and all applicable diagnostic codes and 38 C.F.R. § 3.321(b). 5. The RO should ascertain whether the veteran wants to appear at a personal hearing on these issues. If so, the RO should schedule such hearing. In order to avoid undue delay in this case, the RO should make certain that the instructions contained in the REMAND decision, detailing the requested development, have, in fact, been substantially complied with. When this development has been completed, and if the benefit sought is not granted, the case should be returned to the Board for further appellate consideration, after compliance with appropriate appellate procedures, including issuance of a supplemental statement of the case. It is requested that this statement specifically set forth the reasons and bases for the decision. No action by the veteran is required until he receives further notice. This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans’ Appeals or by the United States Court of Veterans Appeals for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans’ Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1996) (Historical and Statutory Notes). In addition, VBA’s ADJUDICATION PROCEDURE MANUAL, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. NANCY I. PHILLIPS Member, Board of Veterans’ Appeals 38 U.S.C.A. § 7102 (West Supp. 1996) permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans’ Appeals is appealable to the United States Court of Veterans Appeals. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1996). - 2 -