Citation Nr: 0331561 Decision Date: 11/14/03 Archive Date: 02/11/04 DOCKET NO. 96-36 471 DATE NOV 14 2003 On appeal from the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUE Entitlement to service connection for post-traumatic stress disorder. ATTORNEY FOR THE BOARD Christopher J. Gearin, Counsel REMAND On August 14, 2002, the Board of Veterans' Appeals (BVA or Board) ordered further development in your case. Thereafter, your case was sent to the Board's Evidence Development Unit (EDU), to undertake the requested development. Prior to May 1,2003, the Board's regulations provided that if further evidence, clarification of the evidence, correction of a procedural defect, or any other action was essential for a proper appellate decision, a Board Member or panel of Members could direct Board personnel to undertake the action essential for a proper appellate decision. See 38 C.F.R. § 19.9(a)(2) (2002). I However, on May 1, 2003, the United States Court of Appeals for the Federal Circuit ("Federal Circuit") invalidated 38 C.F.R. § 19.9(a)(2), in Disabled American Veterans v. Secretary a/Veterans Affairs, 327 F.3d i339 (Fed. Cir. 2003) (hereinafter "DA V"). The Federal Circuit held that 38 C.F.R. § 19.9(a)(2), in conjunction with the amended rule codified at 38 C.F.R. § 20.1304, was inconsistent with 38 U.S.C. § 7104(a), because 38 C.F.R. § 19.9(a)(2), denies appellants "one review on appeal to the Secretary" when the Board considers additional evidence without having to remand the case to the agency of original jurisdiction (AOI) for initial consideration, and without having to obtain the appellant's waiver. Following the Federal Circuit's decision in DAV, the General Counsel issued a precedential opinion, which concluded that DAV did not prohibit the Board from developing evidence in a case before it, provided that the Board does not adjudicate the claim based on any new evidence it obtains unless the claimant waives initial consideration of such evidence by first-tier adjudicators in the Veterans Benefits Administration (VBA). VAOPGCPREC 1-03. Based on this opinion, the Board continued, for a short time, to request development via the Board's EDU. Recently, in light of the Federal Circuit Court's decision and other policy considerations, the Department of Veterans Affairs (VA) determined that VBA - 2 would resume all development functions. In other words, aside from the limited class of development functions that the Board is statutorily permitted to carry out, see 38 U.S.C.A. §§ 7107(b), 7109(a), all evidence development will be conducted at the regional office (RO) level. In the event that you appeared at a hearing before a Veterans Law Judge (VLJ) other than the VLJ signing this remand, be advised that if your case is returned to the Board, it will be reassigned to the VLJ who conducted your hearing. Accordingly, this matter is REMANDED to the RO for the following: 1. This veteran is seeking service connection for posttraumatic stress disorder based on personal trauma. Contact the appropriate State or Federal agency and obtain the following service personnel records: regarding all disciplinary actions and courts martial, to include the facts and circumstances of each incident. The desired records relate to active duty performed in the Army in RVN from May 22, 1970to May 14, 1971, with the 60th Ordnance Company at the Long Bihn Ammunition Supply Depot APO 96491. If no such. service personnel records can be found, or if they have been destroyed, ask for specific confirmation of that fact. 4. This veteran is seeking service connection for posttraumatic stress disorder. Prepare a letter asking the U.S. Armed Services Center for Research of Unit Records (USASCRUR) to provide any available information that might corroborate the veteran's alleged in-service stressors. Ask for the unit records, including lessons learned, for the Army 60th Ordnance Company at the Long Bihn Ammunition Supply Depot RVN APO 96491 for May 1970 to May 1971, and the morning - 3 reports for the Army 60th Ordnance Company at the Long Bihn Ammunition Supply Depot R VN APO 96491 from June 15, 1970 to September 15, 1970. Provide USASCRUR with a description of these two alleged stressors identified by the veteran: (1.) personal trauma in August 1970 involving striking of officer( s) at the Long Bihn Ammunition Supply Depot, the Orderly Room of the 60th Ordnance Company at the Long Bihn Ammunition Supply Depot, the Long Bihn Officers Club, and the Long Bihn Army Hospital and (2.) the shelling of the Long Bihn Ammunition Supply Depot and the USARV Installation Stockade at Long Bihn between May 1970 and May 1971. Provide USASCRUR with copies of any personnel records obtained showing service dates, duties, and units of assignment. 5. After the development requested above has been completed to the extent possible, the RO should again review the record. If any benefit sought on appeal remains denied, the appellant and representative, if any, should be furnished a supplemental statement of the case and given the opportunity to. respond thereto. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise notified. 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 -4 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 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. S. KELLER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 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). - 5 018121311 031104 1055463 03-30232 DOCKET NO. 97-17605 DATE NOV 04 2003 On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio THE ISSUE Entitlement to service connection for a back disorder. REPRESENTATION Appellant represented by: Sandra E. Booth, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Hudson, Counsel INTRODUCTION The veteran had active service from October 1950 to October 1953, and from March 1956 to January 1959. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 1996 RO rating decision which denied a claim for service connection for a back disorder. An April 1999 Board decision denied this claim. The appellant then appealed to the U.S. Court of Appeals for Veterans Claims (Court). By an August 2000 order, the Court vacated and remanded the April 1999 Board decision with respect to the issue of service connection for a back disorder. [A purported appeal of an issue of service connection for multiple sclerosis was dismissed by the U.S. Court of Appeals for Veterans Claims, and such action was upheld by the U.S. Court of Appeals for the Federal Circuit. Thus there is no such issue now on appeal.] REMAND The issue of service connection for a back disorder was remanded by the Court in August 2000 in order to notify the veteran of the need for a medical nexus opinion in order for his claim to be well grounded. Subsequently, the Veterans Claims Assistance Act of 2000 (VCAA) was enacted in November 2000, and this act among other things eliminated the requirement that a claim be well grounded. The VCAA and companion VA regulation contain specific notification and duty to assist provisions which the VA must follow when adjudicating a claim for benefits. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2003). The RO has not yet had an opportunity to review the claim under the VCAA. To assure due process to the veteran, the issue of service connection for a back disorder must be returned to the RO for readjudication in compliance with the -2 VCAA notice and duty to assist provisions. The Board itself may not provide VCAA notice or assistance in developing evidence. See Disabled American Veterans v. Secretary o/Veterans Affairs, 327 F.3d 1339 (2003). Accordingly, the issue of service connection for a back disorder is remanded to the RO for the following action: 1. In accordance with the VCAA and companion VA regulation, the RO should provide the veteran with all required notice, and should assist him in developing evidence, with respect to his claim for service connection for a back disorder. 2. The RO should then review the claim for service connection for a back disorder. If the claim is denied, the veteran and his representative should be provided with a supplemental statement of the case, and given an opportunity to respond, before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). L. W. TOBIN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2000), 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. § 20.1l00(b) (2000). - 3 025088203 031022 878994 03-28409 DOCKET NO. 99-10367 DATE OCT 22 2003 On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to an effective date prior to December 30, 1991, for a grant of service connection for diabetes mellitus. 2. Entitlement to a higher initial rating for diabetes mellitus. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Michael Martin, Counsel INTRODUCTION The veteran had active service from June 1946 to August 1967. This matter came before the Board of Veterans' Appeals (Board) on appeal from decisions by the Department of Veterans Affairs (VA) Oakland, California, Regional Office (RO). In a decision of March 1998, the RO granted service connection for diabetes mellitus, and assigned a 10 percent disability rating effective from December 30, 1991. In a decision of November 1998, the RO raised the rating for the diabetes mellitus from 10 percent to 20 percent. The decision contains conflicting information as to the effective date of that increase. REMAND The RO wrote to the veteran in April 2000 and requested that he inform them if he still wanted a hearing before the local hearing officer. He was also advised that, if he required any other type of hearing, such as a BV A travel Board hearing, he should specifically let the RO know. In June 2000, the veteran responded with notes written on a copy of a letter from the RO. He stated that he desired a hearing with the local hearing officer and a "BVA Travel Board after local hearing officer". At the bottom of the letter, he said "please note the highlighted parts of your letter to me and the answer highlighted. Both questions, my answer is yes." He subsequently had a hearing before a hearing officer from the RO, but there is no indication that this was in lieu of the requested Travel Board hearing. Thus, the request for a hearing before a Traveling Member of the Board which the appellant made remains unsatisfied. This hearing must be scheduled at the RO level, and, accordingly, a remand is required. See Bernard v. Brown, 4 Vet. App. 384,393 - 2 (1993) (citing 38 U.S.C.A. § 7104(a) ("claimant has right to a hearing before [issuance] of BVA decision"); 38 C.F.R. §§ 3.103(a) and (c)(1), 19.9, 19.25, 20.704). Accordingly, to ensure full compliance with due process requirements, the case is REMANDED to the RO for the following development: The RO should take steps necessary to ensure that the appellant's name is added to the schedule of hearings to be conducted at the RO before a traveling Member of the Board. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded to the RO. 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 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. 8.43 and 38.02. JEFF MARTIN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. - 3 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). - 4 - - - 118482895 031028 946146 03-29327 DOCKET NO. 00-08958 DATE OCT 28 2003 On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to an increased disability rating for chronic low back pain, currently evaluated as 10 percent disabling. 2. Entitlement to an increased disability rating for left patellofemoral syndrome, currently evaluated as 10 percent disabling. 3. Entitlement to an increased disability rating for right patellofemoral syndrome, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Massachusetts Department of Veterans Services \ ATTORNEY FOR THE BOARD Theresa M. Catino, Counsel REMAND On July 8, 2002, the Board of Veterans' Appeals (BV A or Board) ordered further development in your case. Thereafter, your case was sent to the Board's Evidence Development Unit (EDU), to undertake the requested development. Prior to May 1, 2003, the Board's regulations provided that if further evidence, clarification of the evidence, correction of a procedural defect, or any other action was essential for a proper appellate decision, a Board Member or panel of Members could direct Board personnel to undertake the action essential for a proper appellate decision. See 38 C.F.R. § I9.9(a)(2) (2002). However, on May 1, 2003, the United States Court of Appeals for the Federal Circuit ("Federal Circuit") invalidated 38 C.F.R. § 19.9(a)(2), in Disabled American Veterans v. Secretary o/Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003) (hereinafter "DAV"). The Federal Circuit held that 38 C.F.R. § I9.9(a)(2), in conjunction with the amended rule codified at 38 C.F.R. § 20.1304, was inconsistent with 38 U.S.C. § 7I04(a), because 38 C.F.R. § 19.9(a)(2), denies appellants "one review on appeal to the Secretary" when the Board considers additional evidence without having to remand the case to the agency of original jurisdiction (AOJ) for initial consideration, and without having to obtain the appellant's waiver. Following the Federal Circuit's decision in DA V, the General Counsel issued a precedential opinion, which concluded that DA V did not prohibit the Board from developing evidence in a case before it, provided that the Board does not adjudicate the claim based on any new evidence it obtains unless the claimant waives initial consideration of such evidence by first-tier adjudicators in the Veterans Benefits Administration (VBA). VAOPGCPREC 1-03. Based on this opinion, the Board continued, for a short time, to request development via the Board's EDU. - 2 movement, excess fatigability, or incoordination. If the examiner finds that such determinations are not feasible, this should be stated for the record together with the reasons why it was not feasible. The examiner should also provide an opinion as to whether pain could significantly limit functional ability during flare-ups or when the knees and low back are used repeatedly over a period of time. This determination should, if feasible, be portrayed in terms of the degree of additional range of motion loss due to pain on use or during flare-ups. If the examiner finds that such determinations are not feasible, this should be stated for the record together with the reasons why it was not feasible. The claims file should be reviewed in conjunction with the examination. 3. After the development requested above has been completed to the extent possible, the RO should again review the record. If any benefit sought on appeal remains denied, the appellant and representative, if any, should be furnished a supplemental statement of the case and given the opportunity to respond thereto. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise notified. 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 - 4 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 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. R. GARVIN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 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). - 5 - - - 028486544 031201 936592 03-33375 DOCKET NO. 00-03 886 DATE DEC 01 2003 On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for an esophageal mass. 2. Entitlement to service connection for a granulomatous chest mass. 3. Entitlement to service connection for headaches. 4. Entitlement to service connection for a bilateral inner ear disorder. 5. Entitlement to service connection for bilateral hearing loss. 6. Entitlement to service connection for bilateral tinnitus. 7. Entitlement to a rating in excess of 20 percent for the residuals of a right thumb and hand laceration, with arthritis. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Joseph P. Gervasio, Counsel INTRODUCTION The veteran served on active duty from November 1969 to March 1972. This case comes to the Board of Veterans' Appeals (Board) on appeal of June and September 1999 rating decisions of the Louisville, Kentucky, Regional Office (RO) of the Department of Veterans Affairs (VA). REMAND Following certification of the claim to the Board, the veteran submitted additional evidence in support of his claim. While much of this consists of medical records that were previously considered by the RO that were highlighted by the veteran, there is some additional medical literature that has not been previously considered. The veteran has not waived consideration of this evidence by the RO. This must be accomplished. Bernard v. Brown, 4 Vet.App. 384 (1993). In addition, in a decision promulgated on September 22,2003, Paralyzed Veterans of America v. Secretary of Veterans Affairs, No. 02-7007, -7008, -7009, -7010 (Fed. Cir. Sept. 22, 2003), the United States Court of Appeals for the Federal Circuit invalidated the 30-day response period contained in 38 C.F.R. § 3.159(b)(I) as inconsistent with 38 U.S.C.§ 5103(b)(1). The Court made a conclusion similar to the one reached in Disabled Am. Veterans v. Secretary of Veterans Affairs, 327 F.3d -2 1339, 1348 (Fed. Cir. 2003) (reviewing a related Board regulation, 38 C.F.R. § 19.9). The court found that the 30-day period provided in § 3.159(b)(1) to respond to a VCCA duty to notify is misleading and detrimental to claimants whose claims are prematurely denied short of the statutory one-year period provided for response. Therefore, since this case is being remanded for additional development or to cure a procedural defect, the RO must take this opportunity to inform the appellant that notwithstanding the information previously provided, a full year is allowed to respond to a VCAA notice. The Board notes that on VA audiology evaluation conducted in June 2001, the audiologist rendered an opinion that tinnitus and hearing loss might be due, in part to noise exposure while in the military, but did not quantify the possibility. Also, a 2001 VA outpatient record indicates that the headaches may be related to the veteran's PTSD. The Board finds that additional development concerning these issues is warranted. Accordingly, this case is REMANDED to the RO for the following actions: 1. The RO must review the claims file and ensure that all VCAA notice obligations have been satisfied in accordance with the recent decision in Paralyzed Veterans of America v. Secretary of Veterans Affairs, as well as 38 U.S.C.A. §§ 5102,5103, and5103A, (West 2002), and any other applicable legal precedent. 2. The RO should schedule the veteran for an examination by a specialist in ear disorders (M. D.) in order to determine the nature, severity, and etiology of any hearing loss. The claims folder should be made available for review in connection with this examination. In addition to an audiology examination any other testing deemed necessary should be performed. The examiner is requested to obtain a detailed inservice and post service history of noise - 3 exposure. Following the examination the examiner is requested to render an opinion as to whether it is as likely as not that the tinnitus if diagnosed is related to inservice noise exposure? The examiner is also requested to render an opinion as to whether it is as likely as not that the pure tone thresholds manifested on service separation examination in March 1972 represent the initial manifestations of any currently diagnosed hearing loss? If no, whether it is as likely as not that any currently diagnosed hearing loss is related to noise exposure during active duty. The specialist should provide complete rationale for all conclusions reached. 3. A VA examination should be conducted by a neurologist in order to determine the nature, severity, and etiology of the reported headaches. The claims folder is to be furnished to the examiner for review in conjunction with the examination. All tests deemed necessary should be performed. Following the examination it is requested that the examiner render an opinion as to whether it is as likely as not that that the headaches if diagnosed are a chronic disorder and, if yes, whether it is as likely as not that that the headaches were caused or are aggravated by the service connected post-traumatic stress disorder. A complete rationale for any opinion expressed should be included in the examination report. 4. Thereafter, the RO should readjudicate the issues on appeal, to include consideration of all evidence received since the last supplemental statement of the case (SSOC). If the determination remains unfavorable to - 4 the veteran, he should be provided with a SSOC and an opportunity to respond. Thereafter, the case should be returned to the Board for further appellate consideration. 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 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. 8.43 and 38.02. ROBERT P. REGAN Veterans Law Judge, Board of Veterans' Appeals - 5 018931714 031008 1269221 03-26917 DOCKET NO. 00-15 151 DATE OCT 08 2003 On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to an increased rating for scar, left hand, currently evaluated as 10 percent disabling. 2. Entitlement to an increased (compensable) rating for postoperative scar, right groin, prior to August 30, 2002. 3. Entitlement to a disability rating in excess of 10 percent for a postoperative scar, right groin, from August 30, 2002. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Lawson, Counsel INTRODUCTION The veteran served on active duty from June 1952 to June 1955 and from October 1961 to August 1962. The Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California denied benefits sought in May 1999, and the veteran appealed. The veteran testified at a Board hearing in September 2000. However, the individual who conducted the hearing is no longer employed at the Board. By letter dated in July 2003, the Board advised the veteran that he had the right to appear at another Board hearing and that if he wished to appear at another hearing he should respond within 30 days. No response has been received. The case was previously before the Board and was remanded in April 2001. In a March2003 rating decision, the RO increased the veteran's rating for his service-connected postoperative right groin scar from noncompensable to 10 percent, effective from August 30, 2002. FINDINGS OF FACT 1. The veteran's right groin scar has been tender and painful on objective demonstration and examination prior to and since August 30, 2002. 2. The veteran suffers no more than moderate impairment associated with disability of the ilio-inguinal nerve related to the service-connected right groin disability. - 2 CONCLUSIONS OF LAW 1. The criteria for a 10 percent rating under Diagnostic Code 7804 for a postoperative scar, right groin, were met prior to August 30, 2002. 38 U.S.C.A. §§ 1155,5107 (West 2002); 38 C.F.R. §§ 3.321,4.118, Diagnostic Code 7804 (2003). 2. The criteria for a disability rating in excess of 10 percent for a postoperative scar, right groin, prior to or from August 30,2002, have not been met. 38 U.S.C.A. §§ 1155,5107 (West 2002); 38 C.F.R. §§ 3.321,4.118, Diagnostic Code 7804 (2002); 67 Fed. Reg. 49590 (July 31, 2002). 3. The criteria for a separate noncompensable rating for disability of the ilioinguinal nerve have been met. 38 U.S.C.A. §§ 1155,5107 (West 2002); 38 C.F.R. §§ 3.321, 4.124a, Diagnostic Code 8630 (2003). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 There has been a significant change in the law during the pendency of the appeals with the enactment of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) [now codified at 38 U.S.C.A. § 5100 et seq. (West 2002)]. This law eliminates the concept of a well-grounded claim, redefines the obligations of V A with respect to the duty to assist, and supersedes the decision of the United States Court of Appeals for Veterans Claims in Morton v. West, 12 Vet. App. 477 (1999) (holding that VA cannot assist in the development of a claim that is not well grounded), withdrawn sub nom. Morton v. Gober, 14 Vet.App. 174 (2000) (per curiam order). The new law also includes an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for - 3 VA benefits. The VCAA is applicable to all claims filed on or after the date of enactment, November 9,2000, or filed before the date of enactment and not yet final as of that date. Veterans Claims Assistance Act of2000, Pub. L. No. 106-475, § 7, subpart (a), 114 Stat. 2096, 2099 (2000). See also Karnas v. Derwinski, 1 Vet. App. 308 (1991). In this case, VA's development and adjudication of the claim was consistent with the VCAA and the amendments to 38 C.F.R. §§ 3.103, 3.159, and 3.326 (2003), and VA's duties have been fulfilled. First, VA has a duty to notify the veteran and his representative of any information and evidence needed to substantiate and complete a claim, and to inform the veteran of which information and evidence is to be provided by the claimant, and which evidence, if any, it would attempt to obtain on the claimant's behalf. 38 D.S.C.A. §§ 5102 and 5103 (West 2002); 38 C.F.R. § 3.159. The record shows that VA has met its duties. The veteran was notified of evidence and information needed to substantiate and complete his claim and who had what duties including in the rating decision, statement of the case, supplemental statement of the case, and other correspondence including a November 2002 VCAA letter to the veteran. The Board concludes that the discussions in the rating decisions, statements of the case, and other correspondence with the veteran informed him of the information and evidence needed to substantiate his claim and complied with VA's notification requirements. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). Second, VA has a duty to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.103 (2002). Service and VA medical records and VA examination reports have been obtained. Reasonable attempts were made to obtain identified relevant evidence. With regard to the issue dealing with the right groin disability, the Board finds that the duty to assist has been met. Additional action to assist the veteran with regard to the left hand disability is set forth in the remand section of this decision. -4 The communications from VA to the veteran informed him of the type of evidence which would be relevant and assisted him in providing it. In this case, VA's actions are consistent with the VCAA, 38 C.F.R. §§ 3.103, 3.159, and 3.326, and the duty to assist and the duty to notify the veteran and his representative of any information and evidence needed to substantiate and complete the claim. Finally, even though VA did not have the benefit of the explicit provisions of the VCAA or the changes to 38 C.F.R. before they were enacted, VA's development and adjudication of the veteran's claim was consistent with the VCAA and the amendments to 38 C.F.R. §§ 3.103, 3.159 and 3.326(a) and no further action is necessary. VA's duties have been fulfilled. Analysis Disability ratings are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. Right groin Service records show complaints of lymphadenitis in the right groin from penile inflammation in August 1952. There was a large swollen red tender mass in the right groin with erythema and induration extending into the scrotum and fullness in the right groin. The fluctuate mass was incised and drained. The inflammation underwent a rapid resolution and the penile lesion was healed on discharge from hospital care. On VA examination in 1956 the veteran complained of pain and numbness in the right leg if he lifted anything heavy. A postoperative scar from pus excision was well healed and without adenopathy. On VA examination in October 1991, a slightly curved scar was described. - 5 In July 1999, the veteran stated that he had a sore right testicle as a result of the scar and in December 2000 he stated that his condition had worsened. In March 2000, he stated that it was worse than the current rating, which was zero percent. In November 2002, the right groin scar was tender and pruritic. In December 2002, the veteran stated that his right groin region had pain which rarely extended into his testicle. Clinically there was no pain to palpation or superficial touch and he stood without difficulty. The diagnosis was chronic pain in the distribution of the right ilioinguinal area. The veteran's right groin postoperative scar is rated as noncompensable prior to August 30, 2002, and as 10 percent disabling under Diagnostic Code 7804 effective from August 30, 2002. Prior to August 30, 2002, a 10 percent rating was warranted for scars which were tender and painful on objective demonstration. Effective August 30, 2002, the criteria became that a 10 percent rating was warranted for superficial scars that are painful on examination. 67 Fed. Reg. 49590 (July 31, 2002). After reviewing the totality of the evidence, the Board finds that the right groin scar was tender and painful prior to August 30, 2002, and that a 10 percent rating is warranted both prior to and from that date. It does not appear from the record that the pain and tenderness related to the scar were any different prior to August 30, 2002. The Board finds that the scar is both tender and painful as required for a 10 percent rating under the criteria in effect prior to August 30, 2002, as well. However, a higher rating is not warranted for the scar at any time covered by the appeal. The examiner who conducted the November 2002 examination reported that the scar does not limit motion. Next for consideration is whether to assign a separate compensable rating for ilioinguinal nerve injury. The VA examiner in December 2002 identified the ilioinguinal nerve distribution as having chronic pain and decreased sensation. Based on the evidence, a separate rating is warranted for the symptomatology which has been identified throughout this nerve distribution. However, the demonstrated - 6 symptomatology is no more than moderate and does not approximate severe to complete paralysis of the ilioinguinal nerve. Under 38 C.F .R. § 4.124a, Diagnostic Code 8530, when this is the case, a noncompensable rating rather than a 10 percent rating is warranted. No motor asymmetries were detected on examination, there was no weakness or motor abnormality, the lesion was described as a "very subtle" lesion, the veteran stood without difficulty and was able to walk straight away and to complete turns appropriately, and there was no ataxia. The examiner stated that the sensory changes in the inguinal area have no corresponding motor component. The provisions of 38 C.F .R. § 4.123 indicate that peripheral neuritis not characterized by organic changes may not be rated as more than moderate. There are no organic changes. The provisions of 38 C.F.R. § 4.124 indicate that peripheral neuralgia may not be rated as more than moderate. The potential application of various provisions of Title 38 of the Code of Federal Regulations have also been considered but the record does not present such "an exceptional or unusual disability picture as to render impractical the application of the regular rating schedule standards." 38 C.P.R. § 3.321(b)(1). In this regard, the Board finds that there has been no showing by the veteran that any service-connected disorder at issue has resulted in marked interference with employment or necessitated frequent periods of hospitalization. Under these circumstances, the Board finds that the veteran has not demonstrated marked interference with employment so as to render impractical the application of the regular rating schedule standards. In the absence of such factors, the Board finds that criteria for submission for assignment of an extraschedular rating pursuant to 38 C.P .R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). - 7 ORDER A 10 percent rating for postoperative scar, right groin, prior to August 30, 2002, is warranted. A separate noncompensable rating for disability of the ilio-inguinal nerve is warranted. To this extent, the appeal is granted, subject to the controlling regulations applicable to the payment of monetary benefits. A disability rating in excess of 10 percent for a postoperative scar, right groin, either prior to or from August 30, 2002, is not warranted. To this extent, the appeal is denied. REMAND With regard to the left hand issue, the veteran is currently rated 10 percent for the scar of the left hand. However, it is not clear whether a separate rating is warranted for neurological disability, nor is the degree of any such neurological disability clear. VA examinations conducted in November and December 2002 variously report tenderness as well as decreased pain and touch sensitivity in the area of the left thumb and wrist. It is not clear whether there separate neurological disability or whether the symptoms are related only to the scar itself. Clarification is necessary. Moreover, if there is any neurological disability, then it would be helpful to have the nerve involved identified. Accordingly, the case is hereby REMANDED for the following actions: 1. The veteran should be scheduled for a special VA neurological examination to ascertain the nature and severity of any neurological impairment related to the injury to the left hand. The claims file should be made available to the examiner for review in connection with the examination. The examiner should clearly report - 8 whether there is neurological impairment in the area of the left thumb/wrist. If there is a particular nerve affected, it should be identified and the degree of severity reported. If all symptoms are related only to the scar with no neurological impairment, the examiner should do state. 2. After completion of the above, the RO should review the expanded record and determine whether a separate rating is warranted for any neurological disability associated with the right groin disability. The veteran and his representative should be furnished a supplemental statement of the case and be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. The veteran and his representative have 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 2002) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs - 9 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. ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27,2001. See the Veterans Education and Benefits Expansion Act of2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: . These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. . In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you. - 10 007672161 031106 1069053 03-30624 DOCKET NO. 02-04 730 DATE NOV 06 2003 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 shell fragment wound to the left lumbar region, with injuries to Muscle Groups XIX and XX, currently evaluated as 50 percent disabling. 2. Entitlement to an extra-schedular evaluation for residuals of a shell fragment wound to the left lumbar region with injuries to Muscle Groups XIX and XX. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD N. T. Werner, Counsel INTRODUCTION The veteran served on active duty from January 1943 to October 1945. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2001 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. In addition to the issues cited on the cover page of this decision the veteran's representative, in its October 2003 brief, raised the issue of entitlement to service connection for a chronic lumbar strain secondary to lumbar shell fragment wound residuals. This issue has not been developed for appellate review and is not intertwined with the issue on appeal. Accordingly, it is referred to the RO for appropriate action. FINDING OF FACT The injury to Muscle Group XIX is moderately disabling and the injury to the lumbar region of Muscle Group XX is moderately severe. CONCLUSION OF LAW The veteran meets the criteria for a 60 percent rating for severe injury to the muscles of the lumbar spine in Muscle Group XX. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321(b)(1), 3.655, 4.7, 4.40, 4.55, 4.56, 4.73, Diagnostic Codes 5319, 5320 (2003). REASONS AND BASES FOR FINDING AND CONCLUSION The veteran and his representative allege that the service-connected shell fragment wound to the lumbar spine and flank are manifested by chronic pain and increasing - 2 weakness which have become worse over time, thereby entitling him to at least the next higher disability rating. It is also requested that the veteran be afforded the benefit of the doubt. The Facts Service medical records show that in August 1944, the veteran sustained a high explosive shell wound while in action against the enemy near Brest, France. The wound was described as a perforating wound to the lower back and/or left flank. It was also noted that the veteran had two wounds on the left side of the lumbar spine, each approximately 1 l/2 by 1 inch in size. The wounds were debrided, initially treated with sulfa dioxide and penicillin, and the veteran was transported for treatment from an aid station in France to the United Kingdom. The veteran underwent surgery during which the wounds were cleaned and closed. Progress notes dated from September to November 1944 reported that in September both wounds underwent secondary closure. By October, the veteran was up and about in good condition, and by mid October, he was transported for rehabilitation. In November 1944, the veteran retuned to the hospital because of pain and bleeding in his stool. Sigmoidoscopy and barium enema studies were negative, and the veteran was transported back for rehabilitation. He was treated for piles/hemorrhoids. Treatment records from the 7ih Station Hospital, dated from December 1944 to January 1945, include a December 1944 back examination in which it was noted that the wounds were well healed without scar adhesions. The back muscles showed good tone and function, and there was no tenderness. As to the abdomen, it was negative to palpation and inspection. A treatment record, dated later in December 1944, noted the veteran's complaints of aching and tenderness over the wounds and the left paraspinal muscles. It was also noted that the veteran complained that clothing irritated the scar and he had back pain with bending. Thereafter, while early December 1944 notes reported that the veteran had difficulty - 3 completing hikes, a January 1945 disposition note noted that the veteran was now able to walk 12 miles without a pack. At the October 1945 separation examination, it was noted that the veteran had penetrating wounds to the lumbar region and had two healed scars. Following military service, the veteran first appeared for a VA examination in September 1949. At that time, the examiner noted the veteran's history and his complaints of back pain with strenuous work. On examination, there were two scars in the left lumbar region, the first located next to the 5th lumbar vertebra measuring 1 inch by 3/4 of an inch, and the second just above the posterior iliac crest measuring 2 1/4 inches by 1 inch. It was opined that the scars were moderately depressed with muscle damage to Muscle Groups XIX and XX. It was also opined that the scars were residuals of a through and through gunshot wound. The diagnosis was gunshot wound to the left lumbar region, moderate muscle damage, Muscle Groups XIX and XX. The veteran next underwent a VA examination in May 1997. At that time, the veteran complained of periodic pain in the area of his scars on the lumbar back, as well as left leg weakness when sitting too long. He also reported that staying in one position for too long a time aggravated the pain. Next, the veteran reported that he did not take any medication. On examination, he had one scar just above the left buttocks that was approximately 3 inches long, depressed, and non-tender. He had another scar in the lower back on the left paramedian line of the spine that was approximately 1.5 inches long, depressed, and non-tender. Examination revealed no spinal deformity or lumbar spasm. There a full range of spinal motion in all directions. Leaning to the left did produce discomfort in the left lower lumbar area muscles. Straight leg raising was positive on the left, but this was not Lasegue. Lifting the left leg to 90 degrees produces a pulling sensation on the left buttock area. There was no patellar reflex on the left. There was no Achilles reflex bilaterally. There was more pinprick sensation in the left leg. This veteran had good pedal pulses bilaterally. Motor examination revealed findings that were within normal limits bilaterally. The left - 4 hip had full range of motion without any pain. X-rays showed mild osteoporosis and minimal degenerative changes, and a grade one spondylolisthesis at L4-L5. At a September 200 1 VA examination, the veteran complained of periodic pain and stiffness in the lower back; pain in the levator area when sitting in the wrong position or when staying in the same position for too long; pain periodically radiating into the left leg; periodic left leg numbness; and fatigability/lack of endurance since he could not walk too far or be seated in the same position too long. The veteran took anti-inflammatory medications for pain without any side effects. On examination of the spine, there was no deformity or spasm of the lumbar muscles. There was one scar approximately 3 inches long over the left lumbar with tenderness on palpation. There was another scar 2 inches long in the mid lower spine that was non-tender. He had full range of motion of the spine. Leaning to the left produced some pain. There were no postural abnormalities. On neurological examination of the lower extremities, he had some motor weakness and plantar flexors, bilaterally. He had paresthesia in the left big toe. He had increased patellar reflexes on the left. He had normal proprioception. X-rays of the lumbosacral spine showed mild osteoporosis, degenerative changes, and a grade I spondylolisthesis at L4- L5. The veteran next appeared for a VA examination in June 2002. At that time, he complained of continued lumbar discomfort and stiffness. Specifically, he complained of pain, weakness, stiffness, fatigability, and a lack of endurance of his lumbar region. He next reported that he had to avoid standing for prolonged periods on his left foot because of pain in his left low back and had to take frequent stops when walking because of lumbar regional pain. He reported using nonsteroidal anti-inflammatory medications, seeing a chiropractor every month for adjustments, and receiving treatment at VA. He reported that his pain is alleviated with rest and non-steroidal anti-inflammatory mediations. On examination, the veteran was well nourished, well developed, and in no distress. The lumbar region had a 3-centimeter (cm) scar in the left low lumbar region - 5 laterally, as well as a 3-cm scar in the left lower lumbar region medially. The examiner opined that these represent the exit and entry wounds. There was significant underlying tissue loss. The scars were moderately disfiguring. There was damage to the sacrospinalis muscle group 20. Muscle strength was minimally decreased on the left side of the lumbar region. There was minimal lumbar spasm, particularly on the left. However, there was no evidence of bone, joint, or nerve damage; no evidence of muscle herniation; no total loss of muscle function; no tenderness; no fixed deformity; and no neurological abnormalities. The diagnoses were chronic lumbar sprain due to injury to Muscle Group XX, sacrospinalis; degenerative joint disease of the lumbosacral spine; and L4- L5 spondylolisthesis. VA outpatient treatment records dated from January 1996 to April 2002 show periodic complaints and/or treatment for low back pain diagnosed as lumbar strain, spondylolisthesis, degenerative joint disease, acquired spinal stenosis, and chronic low back pain. The records also show the veteran attended physical therapy for low back pain from June 1996 to March 1997. The Laws & Regulations Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 D.S.C.A. § 1155; 38 C.F.R. § 4.1 (2003). Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27 (2003). Additionally, although regulations require that a disability be viewed in relation to its recorded history, 38 C.F.R. §§ 4.1, 4.2, when assigning a disability rating, it is the present level of disability which is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Historically, the RO granted service connection for residuals of a shell fragment wound to the lumbar region with injuries to both Muscle Groups XIX and XX, and most recently rated the disability as 50 percent disabling under 38 C.F.R. § 4.73, Diagnostic Codes 5319 (Muscle Group XIX) - 5320 (Muscle Group XX). See RO decisions dated in October 1946, September 1949, and July 1997. - 6 The Board notes that Muscle Group XIX consists of the muscles that support compression of the abdominal wall and lower thorax; flexion and lateral motions of spine; synergists in strong downward movements of arm (1). Muscles of the abdominal wall: (1) Rectus abdominis; (2) external oblique; (3) internal oblique; (4) transversalis; and (5) quadratus lumborum. 38 C.F.R. § 4.73, Diagnostic Code 5319. "The veteran is entitled to a 10 percent rating for "moderate" disability, a 30 percent rating for "moderately severe," and a 50 percent rating for "severe" injury to the muscles in Muscle Group XIX. Id. Muscle Group XX consists of the muscle that provide postural support of the body; extension and lateral movements of spine. Spinal muscles: Sacrospinalis (erector spinae and its prolongations in thoracic and cervical regions). 38 C.F.R. § 4.73, Diagnostic Code 5320. As to the lumbar region, the veteran is entitled to a 20 percent rating for a "moderate" disability, a 40 percent rating for a "moderately severe," and a 60 percent rating for a "severe" injury to the muscles in Muscle Group XX. Id. Next, the Board notes that 38 C.F.R. § 4.56 provides, in relevant part, that: * * * (b) A through-and-through injury with muscle damage shall be evaluated as no less than a moderate injury for each group of muscles damaged; ( c) F or VA rating purposes, the cardinal signs and symptoms of muscle disability are loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination and uncertainty of movement; (d) Under Diagnostic Codes 5301 through 5323, disabilities resulting from muscle injuries shall be classified as slight, moderate, moderately severe or severe as follows: - 7 * * * (2) Moderate disability of muscles. (i) Type of injury. Through and through or deep penetrating wound of short track from a single bullet, small shell or shrapnel fragment, without explosive effect of high velocity missile, residuals of debridement, or prolonged infection. (ii) History and complaint. Service department record or other evidence of in-service treatment for the wound. Record of consistent complaint of one or more of the cardinal signs and symptoms of muscle disability as defmed in paragraph (c) of this section, particularly lowered threshold of fatigue after average use, affecting the particular functions controlled by the injured muscles. (iii) Objective findings. Entrance and (if present) exit scars, small or linear, indicating short track of missile through muscle tissue. Some loss of deep fascia or muscle substance or impairment of muscle tonus and loss of power or lowered threshold of fatigue when compared to the sound side. (3) Moderately severe disability of muscles. (i) Type of injury. Through and through or deep penetrating wound by small high velocity missile or large low- velocity missile, with debridement, - 8 prolonged infection, or sloughing of soft parts, and intermuscular scarring. (ii) History and complaint. Service department record or other evidence showing hospitalization for a prolonged period for treatment of wound. Record of consistent complaint of cardinal signs and symptoms of muscle disability as defined in paragraph (c) of this section and, if present, evidence of inability to keep up with work requirements. (iii) Objective findings. Entrance and (if present) exit scars indicating track of missile through one or more muscle groups. Indications on palpation of loss of deep fascia, muscle substance, or normal firm resistance of muscles compared with sound side. Tests of strength and endurance compared with sound side demonstrate positive evidence of impairment. (4) Severe disability of muscles. (i) Type of injury. Through and through or deep penetrating wound due to high-velocity missile, or large or multiple low velocity missiles, or with shattering bone fracture or open comminuted fracture with extensive debridement, prolonged infection, or sloughing of soft parts, intermuscular binding and scarring. (ii) History and complaint. Service department record or other evidence showing hospitalization for a prolonged period for treatment of wound. - 9 Record of consistent complaint of cardinal signs and symptoms of muscle disability as defined in paragraph (c) of this section, worse than those shown for moderately severe muscle injuries, and, if present, evidence of inability to keep up with work requirements. (iii) Objective findings. Ragged, depressed and adherent scars indicating wide damage to muscle groups in missile track. Palpation shows loss of deep fascia or muscle substance, or soft flabby muscles in wound area. Muscles swell and harden abnormally in contraction. Tests of strength, endurance, or coordinated movements compared with the corresponding muscles of the uninjured side indicate severe impairment of function. If present, the following are also signs of severe muscle disability: (A) X-ray evidence of minute multiple scattered foreign bodies indicating intermuscular trauma and explosive effect of the missile. (B) Adhesion of scar to one of the long bones, scapula, pelvic bones, sacrum or vertebrae, with epithelial sealing over the bone rather than true skin covering in an area where bone is normally protected by muscle. (C) Diminished muscle excitability to pulsed electrical current in electrodiagnostic tests. (D) Visible or measurable atrophy. (E) Adaptive contraction of an opposing group of muscles. (F) Atrophy of muscle groups not in the track of the missile, particularly of the trapezius and serratus in wounds of the shoulder girdle. (G) Induration or atrophy of an entire muscle following simple piercing by a projectile. - 10 The Board also notes that 38 C.F.R. § 4.55 (2003) provides that a muscle injury rating will not be combined with a peripheral nerve paralysis rating of the same body part, unless the injuries affect entirely different functions. Moreover, the combined evaluation of muscle groups acting upon a single unankylosed joint must be lower than the evaluation for unfavorable ankylosis of that joint, except in the case of Muscle Groups I and II acting upon the shoulder. In addition, for compensable muscle group injuries which are in the same anatomical region but do not act on the same joint, the evaluation for the most severely injured muscle group will be increased by one level and used as the combined evaluation for the affected muscle groups. Furthermore, for muscle group injuries in different anatomical regions which do not act upon ankylosed joints, each muscle group injury shall be separately rated and the ratings combined under the provisions of 38 C.F.R. § 4.25. Id. Analysis The record on appeal shows the veteran sustained high explosive shell wounds to Muscle Group XIX and XX. These Muscle Groups are in the same anatomical region but do not act on the same joint. Therefore, the evaluation for the most severely injured muscle group, either Muscle Group XIX or XX, will be increased by one level and used as the combined evaluation for the affected muscle groups. See 38 C.F.R. § 4.55(e). In light of the foregoing, the Board notes that service medical and VA records show that the veteran suffered a through and through and deep penetrating shell fragment woun-d, with debridement, to the lumbar region and left flank effecting Muscle Groups XIX and XX. Service medical records indicate that the veteran was hospitalized from August 1944 to January 1945 for treatment. Interestingly, these treatment records primarily discussed the injury to the lumbar region. In-service treatment records also show that the wound caused back and/or flank pain and curtailed his ability to finish hikes that were part of his rehabilitation regiment. Furthermore, in-service and post-service records note entrance and exit scars indicating that the track of the missile went through Muscle Groups XIX and XX, - 11 causing significant underlying tissue loss in the lumbar region, a loss of muscle strength in the left lumbar region, and lumbar spasm, particularly on the left. See service medical records dated from August 1944 to January 1945; VA examinations dated in September 1949, May 1997, September 2001, and June 2002. In addition, the September 1949 V A examiner opined that there was at least moderate muscle damage to Muscle Groups XIX and XX. As to Muscle Group XIX, given the scarcity of in-service complaints, diagnoses, or treatment related to that Muscle Group, and given the complete lack of post-service complaints, diagnoses, or treatment regarding the injury to Muscle Group XIX, in light of the through and through nature and because the minimal rating for a through and through muscle injury such as the veteran's is "moderate," the Board finds that this injury is best characterized as "moderate." See 38 C.F.R. § 4.56, 4.73, Diagnostic Code 5319. As to Muscle Group XX, given the fact that most of the in-service and post-service treatment records indicate that the veteran's primary injury was to the lumbar region of Muscle Group XX, given the type of injury to Muscle Group XX (i.e., a through and through and deep penetrating wound by small high velocity missile with debridement), the history and complaints of that injury (i.e., a four month period of hospitalization along" with pain and difficulty performing his physical therapy), and the objective medical evidence found while in military service and at post-service VA examinations (i.e., entrance and exit scars indicating that the track of the missile went through Muscle Groups XIX and XX, significant underlying tissue loss in the lumbar region, decreased muscle strength, and lumbar spasm), and granting the veteran the benefit of the doubt, the Board concludes that the injury to Muscle Group XX is best characterized as "moderately severe." See 38 C.F.R. §§ 4.56, 4.73, Diagnostic Code 5320. Given that Muscle Group XX is the most severely injured Muscle Group, the veteran is entitled to have this injury increased by one level and characterized as "severe." See 38 C.F.R. § 4.55(e). Accordingly, a 60 percent rating for a "severe" injury to the lumbar region of Muscle Group XX is warranted. See 38 C.F.R. § 4.73, Diagnostic Code 5320. This increased rating acts as the combined evaluation for Muscle Groups XIX and XX. See 38 C.F.R.§ 4.55(e). - 12 As to the representative's claim that the veteran is entitled to separate ratings for scarring caused by the shell fragment wounds, the Board notes that the 60 percent rating assigned under 38 C.F.R. § 4.73, specifically contemplates scarring. See 38 C.F.R. §§ 4.55, 4.56. Therefore, assigning a separate rating on the basis of both muscle injury and scatTing is inappropriate. 38 C.F.R. § 4.14 (2003); Esteban v. Brown, 6 Vet. App. 259, 261 (1994) (where the record reflects that the veteran has multiple problems due to service-connected disability, it is possible for a veteran to have "separate and distinct manifestations" from the same injury, permitting separate disability ratings. The critical element is that none of the symptomatology for any of the conditions is duplicative or overlapping with the symptomatology of the other conditions.) As to the Veterans Claims Assistance Act of 2000, the Board notes that the above decision constitutes a complete grant of the maximum benefit allowable by law or regulation without an award of an extra-schedular evaluation. Therefore, because the remand below addresses extra-schedular considerations, the Board finds that a discussion of the Veterans Claims Assistance Act of 2000 and the effect it had on the veteran's claim is not needed. ORDER A 60 rating for residuals of a shell fragment wound to the left lumbar region with injuries to Muscle Groups XIX and XX is granted, subject to the laws and regulations governing the award of monetary benefits. REMAND Given that the above decision grants the maximum schedular rating for injuries to Muscle Groups XIX and XX, and given a November 2001 VA treatment record's notation that the veteran sold his shoe repair business because he could no longer work due to low back pain, a remand for the RO to consider the criteria for - 13 submission for extra-schedular consideration pursuant to 38 C.F.R. § 3.321(b)(1) (2003) is needed. In this regard, the Board notes that during the pendency of the appeal the Veterans Claims Assistance Act of 2000 (VCAA) was enacted. See Pub. L. No. 106-475, 114 Stat. 2096 (2000). This liberalizing law is applicable to the veteran's claim. The VCAA and its implementing regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2003), among other things, require VA to notify the claimant and his representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary, that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and his representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. Quartuccio v. Principi, 16 Vet. App. 183 (2002). However, a review of the record on appeal reveals no action by the RO that satisfies the notification requirements of the VCAA as to the extra-schedular claim. Therefore, on remand, the RO should provide the veteran with proper VCAA notice as mandated by Quartuccio. In addition, the Board notes that the United States Court of Appeals for the Federal Circuit in Paralyzed Veterans of America, et al. v. Secretary of Veterans Affairs, 345 F.3d 1334 (Fed.Cir. 2003) (PVA), recently held that the provisions of 38 C.F.R. § 3 .159(b )( 1) which authorized VA to enter a decision if a response to a "VCAA notice" letter was not filed with VA within 30 days was invalid as contrary to the provisions of 38 U.S.C.A. § 5103(a). Accordingly, on remand, the veteran must be notified that he has one year within which to respond with additional pertinent evidence or information. Finally, the Board notes that while the veteran reported seeing a private doctor as well as a chiropractor for treatment, no contemporaneous private treatment records appear in the record on appeal. Therefore, on remand, the RO should obtain and associate with the claim's file all of the veteran's relevant medical records from all - 14 identified sources, including his chiropractor and all private doctor. See 38 U.S.C.A. § 5103A(c) (West 2002). In light of the case law, which the Board is legally obligated to follow, this issue is REMANDED for the following: 1. The RO must review the claims file and ensure that all VCAA notice obligations have been satisfied in accordance with the recent decisions in Quartuccio and PVA, as well as 38 U.S.C.A. §§ 5102, 5103, and 5103A (West 2002), and any other applicable legal precedent. Such notification includes, but is not limited to, sending the veteran a letter notifying him that he has one year to submit pertinent evidence needed to substantiate his claim. The date of mailing the veteran notice of the VCAA begins the one year period. Inform the veteran that the RO will hold the case in abeyance until the one year period has elapsed, or until he waives in writing the remaining term. Inform him that submitting additional evidence is insufficient to waive the one year waiting period. Further, regardless of whether the veteran submits additional evidence or argument in support of his claim, if he desires to expedite Board review of his claims, the veteran must waive in writing any remaining response time. PVA. 2. The RO should request that the veteran identify the name, address, and approximate (beginning and ending) dates of all VA and non- VA health care providers who have treated him for his shell fragment wounds since 2000. The RO should also inform the veteran that VA will make efforts to obtain relevant evidence, such as VA and non- VA medical records, employment records, or records from government agencies, if he identifies the - 15 custodians thereof. Obtain all records identified by the veteran that have not already been associated with the record on appeal, including treatment records from his chiropractor and post-April 2002 treatment records from the Altoona VA medical center. The aid of the veteran in securing all identified records, to include providing necessary authorization( s), should be enlisted, as needed. If any of the 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 claim's file, and the veteran notified in writing. 4. After associating with the record all evidence obtained in connection with the above development (to the extent possible), the RO should schedule the veteran for a social and industrial survey to assess his employment history, his day-to-day functioning, and the impact of the gunshot wound on his ability to perform substantially gainful employment. A written copy of the report should be inserted into the claims folder. 5. After the development requested has been completed, the RO should review the examination report to ensure that it is in complete compliance with the directives of this REMAND. If the report is deficient in any manner, the RO must implement corrective procedures at once. 6. Thereafter, following any other appropriate development, the RO should consider whether the criteria for submission for extra-schedular consideration pursuant to 38 C.F.R. § 3.321(b)(1) as been met. If the benefit sought is denied he and his representative should - 16 be provided a Supplemental Statement of the Case which includes a summary of any additional evidence submitted, applicable laws and regulations, and the reasons for the decision. They should then be afforded an applicable time to respond. The veteran has the right to submit additional evidence and argument on the matter the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). DEREK R. BROWN Veteran's Law Judge, Board of Veterans' Appeals - 17 026804592 031031 1238034 03-30031 DOCKET NO.99-18 214 DATE OCT 31, 2003 On appeal from the Department of Veterans Affairs Regional Office and Insurance Center in Philadelphia, Pennsylvania THE ISSUE Entitlement to an increased rating for tinnitus, currently rated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M.N. Romero, Associate Counsel INTRODUCTION The veteran served on active duty from May 1966 to May 1972, and reportedly had a prior period of active duty of two years, seven months and 10 days.. This matter came to the Board of Veterans' Appeals (Board) on appeal from a July 1998 rating decision of the Department of Veterans Affairs (VA) Regional Office and Insurance Center (RO) in Philadelphia, Pennsylvania. In December 2000, the Board denied the veteran's appeal for a compensable rating for bilateral hearing loss and for a rating in excess of 10 percent for tinnitus. The veteran appealed the Board's denial of a rating in excess of 10 percent for tinnitus to the United States Court of Appeals for Veterans Claims (Court), which entered an order in April 2003 vacating the Board's decision and remanding that matter for action consistent with the Court's order. REMAND Initially, the Board notes that during the pendency of this claim but after the RO's most recent consideration of the claim, the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), was signed into law and codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2003)). In addition, regulations implementing the VCAA were published at 66 Fed. Reg. 45,620, 45,630-32 (August 29,2001) and codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326 (2003). The liberalizing provisions of the VCAA and the implementing regulations are applicable to the issue on appeal. The Act and the implementing regulations provide that V A will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate -2 the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. 38 C.F.R. § 4.87, Diagnostic Code 6260 (2002) provides that recurrent tinnitus warrants a 10 percent evaluation. The primary argument advanced on appeal is that the veteran's tinnitus is bilateral and should therefore be assigned a compensable rating for each ear. In May 2003, subsequent to the Court's order, VA published a final rule adding a note to 38 C.F.R. § 4.87, Diagnostic Code 6260, directing raters to assign only a single evaluation for recurrent tinnitus, whether the sound is perceived in one ear, both ears, or in the head. 68 Fed. Reg. 25,822- 25,823 (2003). Shortly thereafter, the VA General Counsel issued V AOPGCPREC 2-03 (2003), holding that Diagnostic Code 6260, as in effect prior to a June 1999 amendment, and as amended in June 1999, authorized a single 10 percent disability rating for tinnitus, regardless of whether the tinnitus is perceived as unilateral, bilateral, or in the head. The VA General Counsel further held that separate ratings for tinnitus may not be assigned under Diagnostic Code 6260 or any other diagnostic code. The Board is bound by this opinion of the VA General Counsel. See 38 C.F.R. § 20.101(a) (2003). Consequently, there is no schedular basis for assigning separate compensable evaluations for the veteran's tinnitus. Moreover, there is no schedular basis for assigning an evaluation in excess of 10 percent for tinnitus. However, in exceptional cases where the schedular evaluations are found to be inadequate, higher evaluations may be assigned on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(I) (2003). Since the veteran has not had an opportunity to present argument in response to VAOPGCPREC 2-03 (2003) or the amendment of Diagnostic Code 6260 and since - 3 the record does not reflect that the veteran has been adequately informed of the evidence and information that he should submit to substantiate a claim for a higher evaluation on an extra-schedular basis, this case is REMANDED to the RO for the following actions: 1. The RO should send the appellant a letter that informs him of the evidence necessary to substantiate a claim for a higher evaluation for tinnitus on an extraschedular basis, the evidence and information that he should submit and the assistance that VA will provide to obtain evidence on his behalf. He should be informed that any evidence and information submitted in response to the letter must be received within one year of the date of the RO' s letter and that he should inform the RO if he desires to waive the one-year period for response. 2. The RO should attempt to obtain all pertinent evidence identified but not provided by the appellant. If the RO is unsuccessful in obtaining any pertinent evidence identified by the appellant, the RO should so inform the appellant and his representative, and request them to provide a copy of such evidence. 3. Then, the RO should undertake any other indicated development and readjudicate the issue on appeal, to include consideration of whether the case should be referred to the Director of the VA Compensation and Pension Service for extra-schedular consideration. 4. If the benefit sought on appeal is not granted to the appellant's satisfaction, the RO should issue a supplemental statement of the case to the appellant and his representative and afford them the requisite - 4 opportunity to respond before the claims folder is returned to the Board for further appellate consideration. By this remand, the Board intimates no opinion as to any final outcome warranted. The appellant need take no action until otherwise notified, but he may furnish additional evidence and argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski , 3 Vet. App. 129, 141 (1992). This case 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 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. 8.43 and 38.02. Shane A. Durkin Veterans Law Judge Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 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.P.R. § 20.1100(b) (2003). - 5 024500946 031203 614101 03-33626 DOCKET NO. 95-28 849 DATE DEC 03 2003 On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to an increased initial disability rating for bilateral hearing loss, currently rated as noncompensable prior to May 2, 2001, and 10 percent disabling from May 2, 2001. 2. Entitlement to an increased initial disability rating for hemorrhoids, currently rated as noncompensable. 3. Entitlement to service connection for a right foot injury. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Nancy Rippel, Counsel INTRODUCTION The veteran served on active duty from July 1961 to August 1964, and from February 1965 to February 1968. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a March 1995 rating decision of the Phoenix, Arizona, Department of Veterans Affairs (VA) Regional Office (RO). The claims file has since been transferred to the Los Angeles, California, RO. The Board notes that the veteran is service-connected for tinnitus, and that the assigned rating is 10 percent. The veteran has indicated that he seeks to appeal this decision, but it is not in appellate status. The matter is referred to the RO for appropriate action. REMAND The veteran failed to report for a travel Board hearing scheduled for October 2003. In a communication received at the Board in October 2003, the veteran indicated that he wanted to reschedule his travel Board hearing. In light of the veteran's recent request for a rescheduled travel Board hearing, the Board is compelled to conclude that additional RO action is required in this matter in order to fulfill the V A duty to assist with regard to these claims. Accordingly, this case is REMANDED to the RO for the following action: - 2 The RO should again schedule a travel Board hearing. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if appropriate. The appellant has the right to submit additional evidence and argument on the matter that the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). The purposes of this REMAND are to obtain additional information and comply. with due process considerations. No inference should be drawn regarding the final disposition of this claim as a result of this action. 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 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. JEFF MARTIN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 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.P.R. § 20.1100(b) (2003). - 3