Citation Nr: 0216726 Decision Date: 11/20/02 Archive Date: 11/26/02 DOCKET NO. 01-10 095 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to an increased rating for residuals of a penetrating gunshot wound of the right upper arm with muscle group V injury, currently evaluated as 30 percent disabling. 2. Entitlement to an increased rating for a fracture of the right humerus as a residual of a gunshot wound, currently evaluated as 20 percent disabling. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Steven D. Reiss, Counsel INTRODUCTION The veteran served on active duty from April 1941 to July 1945, including combat service in the European Theater during World War II, and his decorations include the Purple Heart Medal. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2001 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania, which denied the veteran's claims seeking increased ratings for the residuals of a penetrating gunshot wound of the right upper arm with muscle group V injury and for a fracture of the right humerus as a residual of a gunshot wound, as well as to a TDIU. The veteran perfected a timely appeal of this determination to the Board. REMAND As a preliminary matter, the Board notes that in November 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5103, 5103A, 5107, and 5126, and codified as amended at 5102, 5103, 5106 and 5107 (West Supp. 2002)), which redefined VA's duty to assist a veteran in the development of a claim. Guidelines for the implementation of the VCAA that amended VA regulations were published in the Federal Register in August 2001. 66 Fed. Reg. 45620 (Aug. 29, 2001) (to be codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a)). The VCAA and its implementing regulations are applicable to the present claims before the Board, and on remand, the RO must ensure compliance with the new requirements. The veteran essentially contends that his service-connected gunshot wound injuries are much more disabling than currently evaluated and warrant increased ratings, on both schedular and extraschedular bases, because they are so severely disability. In this regard, he maintains that the residuals of a penetrating gunshot wound of the right upper arm with muscle group V injury warrants at least a 40 percent evaluation and that his a fracture of the right humerus as a residual of a gunshot wound warrants at least a 30 percent rating. Further, he asserts that, in combination, they are so severe that they prevent him from performing many activities of daily living and preclude him from obtaining and retaining employment. As will be discussed in more detail below, because: (1) the VA examination findings are inconsistent regarding the nature and severity of the residuals of the veteran's gunshot wound injuries; (2) the relationship between the ratings for the muscle damage and the evaluation of the scars is unclear; and (3) in light of the veteran's assertions, which require consideration of 38 C.F.R. § 3.321, the Board is remanding these claims to the RO for further development and adjudication. For these reasons, as well as for others set forth below, the veteran's TDIU must also be remanded. With respect to the veteran's increased rating claims, the Board observes that, in the report of the November 1999 VA muscles examination, the examiner indicated that, due to his gunshot wound injuries, the muscles of veteran's right upper extremity had atrophied; the examiner identified these as involving the elbow joint and the thenar and thenar eminence, as well as the small joints of the hand. The examiner also stated that the veteran had a loss of muscle function of his right upper and lower arm, which he explained included the shoulder joint, elbow joint and wrist joint. Further, the examiner reported that the veteran exhibited an inability to move the muscle group joints through a normal range [of motion] with sufficient control and endurance and strength to accomplish his activities of daily living. In addition, the examiner commented that the muscle group involved was not dependently used through range of motion due to weakness and "easy fatigability," rather than pain. In fact, the examiner added that he was not able to passively move the joints of the muscle group. The examiner who conducted the November 1999 VA bones examination also reported that the veteran had ankylosis of the right arm, explaining that it was in the pronation position and that the veteran was unable to be in supination; the examiner commented that the veteran had "almost loss of use of the right upper extremity." In addition, the examiner stated that the veteran had zero degrees of supination of his right elbow and that his hand was ankylosed in the pronation position. As such, these examination findings indicate that the disability might warrant a 60 percent rating under Diagnostic Code 5205 and/or a 30 percent rating under Diagnostic Code 5213. Further, the findings contained in the November 1999 VA muscle examination report, showing such right-sided impairment, require that VA consider the provisions of 38 C.F.R. § 4.63 and Diagnostic Codes 5121 through 5125. The Board notes, however, that the findings contained in the November 1999 VA examination reports appear inconsistent with those reported in the May 2001 VA examination reports. As such, on remand, when evaluating these disabilities, the examiner must identify all the residuals and attempt to reconcile the findings elicited on the VA examination reports. In this regard, the Board notes that the May 2001 VA bones examination report reflects that the veteran had no loss of motion of the right shoulder and that he had full flexion and extension of the right elbow, with full pronation of the forearm. In addition, the examiner reported that the veteran was able to supinate his right elbow to the neutral position, with no loss of hand or wrist motion. As such, in light of the divergent findings on the recent VA examinations, which yield significantly different depictions regarding the nature, extent and severity of the residuals of the veteran's service-connected gunshot wound injuries, and thus, contradictory disability evaluations, the Board concludes that the veteran should be afforded a contemporaneous VA examination that is conducted by an examiner who did not perform either the November 1999 or May 2001 VA examinations, to reconcile these findings, before the Board can adjudicate these claims. In addition, the November 1999 bones examination shows that the veteran was been diagnosed as having chronic osteomyelitis; a November 1999 X-ray of the veteran's right shoulder revealed findings consistent with chronic osteomyelitis. In this regard, the Board notes that 38 C.F.R. § 4.43 provides that chronic, or recurring, suppurative osteomyelitis, once clinically identified, including chronic inflammation of bone marrow, cortex, or periosteum, should be considered as a continuously disabling process, whether or not an actively discharging sinus or other obvious evidence of infection is manifest from time to time, and unless the focus is entirely removed by amputation will entitle to a permanent rating to be combined with other ratings for residual conditions, however, not exceeding amputation ratings at the site of election. To date, there is no indication that VA has considered whether the veteran is entitled to a separate rating under Diagnostic Code 5000 for this condition. The evidence also reveals that the veteran's gunshot wound residuals include several large, deep, "quite disfiguring" scars. In this regard, the Board observes that May 2001 VA muscles examination report reflects that the veteran had several large gunshot wound scars, most notably, one that measured seven inches long and was 1.5 inches wide, with a 1/2 inch depression on the inner aspect of his right upper arm. The physician also indicated that he had a right axillary scar that was vertical and four inches long, also with a 1/2 inch depression, as well as an entrance site scar on the upper chest that measured approximately three inches. These findings are significant because, to date, VA has not considered whether the veteran is entitled to separate schedular evaluation(s) for these scars, see Esteban v. Brown, 6 Vet. App. 259 (1994). In addition, the Board notes that, on remand, the RO will have the opportunity to evaluate the scars under the revised rating criteria for skin disabilities, which became effective August 30, 2002, see 67 Fed. Reg. 49590 (2002), as well as those in effect when the veteran filed his claims seeking increased ratings for the residuals of his gunshot wound injuries. See VAOPGCPREC 3-2000 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). In this regard, the Board notes that, based on a review of new Diagnostic Code 7801, a separate rating of at least 20 percent may be warranted for his residual gunshot wound scars. Further, as discussed above, the veteran's contentions indicate that he was forced to retire from his position with General Electric due to impairment stemming from his service- connected gunshot wound injuries, and thus, he asserts that these disorders interfere with his employability beyond that degree contemplated in the assigned evaluations. The Board finds that these assertions raise a question as to whether, due to marked interference with employment, the regular schedular standards are inadequate to evaluate the residuals of the veteran's service-connected gunshot wound injuries. As such, the RO must consider whether the criteria for invoking the procedures for assignment of extra-schedular evaluation(s) under 38 C.F.R. § 3.321(b)(1) are met when readjudicating these increased rating claims. It is, however, improper for the Board to address, in the first instance, the issue of extraschedular ratings (see Bagwell v. Brown, 9 Vet. App. 157, 158 (1996); Floyd v. Brown, 9 Vet. App. 88, 94 (1996)). The United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) has held that, where the Board has purported to grant an extraschedular rating, the claim must be sent by the Board to those "officials who possess the delegated authority to assign such a rating in the first instance." Floyd v. Brown, 9 Vet. App. at 95. As such, these increased rating issues must be remanded for the RO's initial determination regarding whether the veteran's disabilities warrant referral to Under Secretary for Benefits or to the Director of the Compensation and Pension Service, pursuant to 38 C.F.R. § 3.321(b), for assignment of extra-schedular rating(s). Also before the Board is the veteran's claim of entitlement to a TDIU. With respect this claim, the veteran contends, in essence, that entitlement to this benefit is warranted because he is unemployable due to his service-connected disabilities, and particularly as a consequence of his residuals of his penetrating gunshot wound of the right upper arm with muscle group V injury and a fracture of the right humerus as a residual of a gunshot wound. Prior to discussing the impact of the veteran's service- connected disabilities on his ability to secure or follow a substantially gainful occupation, the Board notes that the record raises a claim of service connection for the residuals of cold injuries of the feet. In this regard, the Board reiterates that the veteran served in combat during World War II. This is significant because the examiner who performed the November 1999 VA general medical examination reported that the skin on the veteran's lower extremities was shiny. In addition, the examiner indicated that the veteran had pitting edema of both lower legs and a residual fungal infection "that he caught from fighting in the wintertime in Europe." The examiner further commented that the veteran had evidence of exposure to the cold; the examiner explained that the skin on the veteran's lower extremities had a darkened surface, with mild varicosities and venous insufficiencies, which was evidence of his exposure to cold injury. As such, the record raises a claim of entitlement to service connection for cold injuries of the feet. In adjudicating this claim, the RO must consider Veterans Benefits Administration Manual M21-1, part VI, (Manual) paragraph 11.20. This Manual section provides: 11.20 RESIDUALS OF COLD INJURY a. General. Injury by cold causes structural and functional disturbances of small blood vessels, cells, nerves, skin, and bone. Exposure to damp cold (temperatures around freezing) causes frostnip and immersion (trench) foot. Exposure to dry cold (temperatures well below freezing) causes frostbite. In severe cases there may be loss of fingers, toes, earlobes, tip of nose, etc. The physical effects of exposure may be acute or chronic, with immediate or latent manifestations. The fact that the immediate effects of cold injury may have been characterized as "acute" or "healed" does not preclude development of disability at the original site of injury many years later. b. Chronic Effects of Exposure. Veterans with a history of cold injury may experience the following signs and symptoms at the site of the original injury: chronic fungus infection of the feet, disturbances of nail growth, hyperhidrosis, chronic pain of the causalgia type, abnormal skin color or thickness, cold sensitization, joint pain or stiffness, Raynaud's phenomenon, weakness of hands or feet, night pain, weak or fallen arches, edema, numbness, paresthesias, breakdown or ulceration of cold injury scars, vascular insufficiency (indicated by edema, shiny, atrophic skin, or hair loss). They also face an increased risk of developing the following conditions at the site of the original injury: peripheral neuropathy, squamous cell carcinoma of the skin (at the site of the scar from a cold injury), arthritis or other bone abnormalities (osteoporosis, subarticular punched out lesions). Service connection for these residuals may be in order if they arise in the area of a cold injury incurred during military service unless an intercurrent nonservice-connected cause is determined. The fact that a nonservice-connected systemic disease that could produce similar findings is present, or that other areas of the body not affected by cold injury have similar findings, does not necessarily preclude service connection for such conditions in the cold injured areas. When considering the possibility of intercurrent cause, reasonable doubt, as defined in 38 CFR 3.102, will always be resolved in the veteran's favor. In light of the foregoing, the Board observes that VA clearly recognizes both that the veteran was exposed to the cold weather while serving in Europe during World War II and suffers from a condition that VA acknowledges reasonably have been shown to stem from that exposure, e.g., chronic fungus infection of the feet, disturbances of nail growth, abnormal skin color or thickness, and vascular insufficiency (indicated by edema, shiny, atrophic skin, or hair loss). As such, on remand, the RO must specifically consider this Manual provision. Although an inferred claim raised by the record is generally referred to the RO for appropriate action, here the Board notes that resolution of the inferred service connection claim could well impact upon the Board's consideration of the total rating issue. As such, the Board finds that, because this claim is inextricably intertwined with the total rating issue, they must be considered together, and thus a decision by the Board on the veteran's total rating claim would at this point be premature. See Henderson v. West, 12 Vet. App. 11, 20 (1998); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Indeed, the Board observes that, if increased and/or separate ratings are granted for the veteran's service- connected disabilities, depending on the evaluation(s) assigned, as well as the resolution of the veteran's claim of service connection for residuals of cold injuries of the feet, if a single or combined 100 schedular evaluation resulted, the total rating issue will be rendered moot. See Green v. West, 11 Vet. App. 472, 476 (1998), (citing Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994)); VAOPGCPREC 6-99, 64 Fed. Reg. 52375 (1999). In addition, on remand, in light of the veteran's documented World War II combat service, in adjudicating this service connection claim, the RO must specifically consider the application of 38 U.S.C.A. § 1154(b) (West 1991) and 38 C.F.R. § 3.304(d) (2002). See Dambach v. Gober, 223 F.3d 1376, 1380 (Fed. Cir. 2000). Further, if the TDIU claim does not become moot, pursuant to the VCAA and existing Court precedent, in adjudicating this issue, VA must either a obtain a competent medical opinion from an examiner, subsequent to his or her review of the record, and/or a physical examination, to determine whether it is at least as likely as not that the veteran's service- connected disability alone renders him unable to secure or follow a substantially gainful occupation. See VCAA, 38 U.S.C.A. § 5103A; see also Colayong v. West, 12 Vet. App. 524, 538-40 (1999); Friscia v. Brown, 7 Vet. App. 294, 297 (1994). In this regard, the Board observes that the only competent medical opinions of record were offered by the examiner who conducted the November 1999 VA bones and muscles examinations. In the November 1999 bones examination report, the examiner indicated that he was "interrupted" in his usual daily activities due to his service-connected residuals of a penetrating gunshot wound of the right upper arm with muscle group V injury and a his fracture of the right humerus as a residual of a gunshot wound. In addition, in the report of the November 1999 muscles examination, that examiner stated that due to these service-connected conditions, the veteran lacked sufficient comfort, strength and endurance to accomplish his activities of daily living. Finally, in the May 2001 rating decision, the RO also denied entitlement to an increased rating for the veteran's service- connected pleural cavity injuries, with adhesions of the diaphragm and thickened pleura, as a residuals of a gunshot wound (pleural cavity gunshot wound injury), which is rated as 40 percent disabling under Diagnostic Code 6843. The veteran was notified of this determination that same month, and in a June 2001 statement, labeled "NOTICE OF DISAGREEMENT," he cited the May 2001 rating action and expressed his disagreement. Thereafter, in a July 2001 statement, submitted in support of his TDIU claim, the veteran reported that he had to cease working due to his service-connected residuals of a penetrating gunshot wound of the right upper arm with muscle group V injury and a fracture of the right humerus as a residual of a gunshot wound; he did not refer to his service-connected pleural cavity gunshot wound injury. In October 2001, the RO issued him a Statement of the Case (SOC) only with respect to three claims listed on the title page; however, the Board accepts the veteran's June 2001 statement as a Notice of Disagreement (NOD) with the denial of his claim seeking an increased rating for his pleural cavity gunshot wound injury pursuant to 38 C.F.R. § 20.201 (2002). To date, the RO has not issued him an SOC with respect to this issue, and under the circumstances, the Board must remand this claim to the RO for the issuance of that SOC. See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999), Holland v. Gober, 10 Vet. App. 433, 436 (1997). In light of the foregoing, the Board is REMANDING this case for the following: 1. Although during the February 2002 RO hearing the veteran testified that he was receiving no treatment for the residuals of his service-connected gunshot wound injuries, in a March 2001 statement he reported receiving "all his treatment" at the Erie and Pittsburgh, Pennsylvania, VA Medical Centers. As such, the RO should request whether he has since received any such treatment for the residuals of his service-connected gunshot wound injuries, as well as for any foot problems. Based on the veteran's response, the RO should obtain and associate with the claims folder any outstanding pertinent records of the veteran's treatment for these conditions from any facility or source identified by the veteran. This should specifically include outstanding records of his treatment at the Erie and Pittsburgh, Pennsylvania, VA Medical Centers. The aid of the veteran and his representative in identifying and securing these records, to include providing necessary authorization(s), should be enlisted, as needed. If any requested records are not available, or if the search for any such records otherwise yields negative results, that fact should clearly be documented in the claims file, and the veteran should be informed in writing. 2. The RO must issue the veteran an SOC with respect to his claim of entitlement to an increased rating for his service- connected pleural cavity gunshot wound injury, to include notification of the need to timely file a Substantive Appeal to perfect his appeal on this issue. 3. After associating with the claims folder all available records received pursuant to the above-requested development, the veteran should be afforded an appropriate VA examination, to be conducted, if possible, by an examiner who did not perform the November 1999 or May 2001 VA examinations. It is imperative that the veteran's examiner reviews the evidence in his claims folder, including a complete copy of this REMAND, and acknowledges such review in his or her report. The examination report should reflect consideration of the veteran's documented, relevant medical history. All appropriate tests and studies should be conducted and all clinical findings should reported in detail. Thereafter, the examiner should offer an opinion as to whether it is at least as likely as not that the veteran has a skin and/or foot disability that is related to his exposure to cold weather conditions during his period of combat service during World War II. In doing so, the examiner should comment on the opinion offered by examiner who performed the November 1999 VA general medical examination. With regard to the manifestations of the veteran's service-connected residuals of a penetrating gunshot wound of the right upper arm with muscle group V injury, a fracture of the right humerus as a residual of a gunshot wound and pleural cavity gunshot wound injury, the examiner should identify the manifestation of each condition and attempt to reconcile the findings elicited during the November 1999 VA examinations with those stated in the May 2001 VA examination reports. In doing so, if possible the examiner should offer specific findings as to whether, during the examination, there is objective evidence of pain on motion, weakness, excess fatigability, atrophy, non-use, ankylosis and/or incoordination of all affected muscles and joints. To the extent possible, the examiner should express any functional loss in terms of additional degrees of limited motion and/or state whether the veteran has ankylosis of any affected part. Further, the examiner should indicate whether, and to what extent, the veteran experiences functional loss during flare-ups of pain and/or weakness of as a result of the service-connected gunshot wound injuries, to include an assessment as to whether it is at least as likely as not that the veteran's right-sided impairment results in disability that approximates loss of use of the right arm. The examiner should also rule in or exclude a diagnosis of osteomyelitis, and indicate the manifestations of that condition, if diagnosed. The examiner should also identify all residual gunshot wound scars and report their dimensions, including their depth, as well as describe any scar tenderness, ulceration, and adhesion. Thereafter, the examiner should opine as to whether, without regard to the veteran's age or the impact of any nonservice-connected disabilities, it is at least as likely as not that the veteran's service-connected disabilities (including his cold injuries of the feet if the examiner concludes it is related to his military service), either alone or in the aggregate render him unable to secure or follow a substantially gainful occupation. In offering this opinion, the examiner should take into consideration the opinions offered by the November 1999 and May 2001 VA examiners, and specifically, the assessments offered by the November 1999 VA bones and muscles examiner, who indicated that the veteran's gunshot wound injuries interrupted in his usual daily activities and resulted in his lack of sufficient comfort, strength and endurance to accomplish his activities of daily living. All examination findings and the complete rationale for all opinions expressed and conclusions reached should be set forth in a legible report. 4. The RO must review the claims file and ensure that all notification and development action required by the Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475 is completed. In particular, the RO should ensure that the new notification requirements and development procedures contained in sections 3 and 4 of the Act (to be codified as amended at 38 U.S.C. §§ 5102, 5103, 5103A, and 5107) are fully complied with and satisfied. For further guidance on the processing of this case in light of the changes in the law, the RO should refer to any pertinent formal or informal guidance that is provided by VA, including, among other things, final regulations and General Counsel precedent opinions. Any binding and pertinent court decisions that are subsequently issued also should be considered. Prior to readjudicating the veteran's TDIU claim, the RO must determine whether service connection is warranted for residuals of cold injuries of the feet. In doing so, the RO must specifically consider 38 U.S.C.A. § 1154(b) and 38 C.F.R. § 3.304(d), as well as Veterans Benefits Administration Manual M21-1, part VI, paragraph 11.20. Further, if service connection is established, a disability rating must be assigned. Then, in light of that determination, as well as those concerned the veteran's claims seeking increased and/or separate evaluations (for scars and/or osteomyelitis) for his service-connected disabilities, if not thereby rendered moot, the RO should readjudicate the veteran's TDIU claim. In readjudicating his increased rating and TDIU claims, the RO must consider whether the case warrants referral to the Under Secretary for Benefits or to the Director of the Compensation and Pension Service, pursuant to 38 C.F.R. § 3.321(b), for assignment of extra-schedular rating(s). If any of the benefits sought on appeal remain denied, the veteran and his representative should be provided with a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations considered pertinent to the issue currently on appeal. An appropriate period of time should be allowed for response. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). 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 Appeals for Veterans Claims 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. 2002) (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. J. E. Day Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. 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) (2002).