Citation Nr: 0811449 Decision Date: 04/07/08 Archive Date: 04/23/08 DOCKET NO. 03-33 100 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois THE ISSUES 1. Entitlement to an increase in the 10 percent evaluation currently assigned for residuals of shell fragment wound (SFW) to the left lower extremity, involving Muscle Group (MG) XI. 2. Entitlement to an increase in the 10 percent evaluation currently assigned for residuals of SFW to the right wrist and hand with ulnar neuropathy. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The veteran and his daughter ATTORNEY FOR THE BOARD Christopher Maynard, Counsel INTRODUCTION The veteran had active service from January 1962 to November 1971. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a rating decision which denied increased ratings for the residuals of SFW's to the left lower extremity and right wrist and hand. In March 2007, the Board denied increased ratings for the two SFW injuries, and the veteran appealed the decision to the United States Court of Appeals for Veterans Claims (hereinafter, "the Court"). In December 2007, the Court granted a Joint Motion to remand the March 2007 Board decision. The appeal is remanded to the RO via the Appeals Management Center in Washington, DC. REMAND As a result of the Order of the Court, the Board has been directed to undertake appropriate action consistent the Joint Motion for Remand. In the Joint Motion, it was argued that the Board failed to address whether the veteran was entitled to separate ratings for additional muscle injuries to his left thigh and right wrist and hand, and whether a separate rating was warranted for limitation of motion of the right forearm. Concerning the left lower extremity, it was argued that VA examinations in November and December 2002 indicated that the SFWs to the left lower leg may have included muscle damage to thigh muscles as well. VA examination of the veteran's right wrist and hand disability, which is currently rated under a neurological code, showed some functional impairment in the right forearm and elbow, which it was argued, might provide a basis for a separate rating based on limitation of motion or possibly for additional muscle damage. The Joint Motion directed the Board to obtain appropriate VA examinations which identified all affected muscle groups and any neurological and/or scar residuals associated with the SFWs, and to readjudicate the claims taking into consideration the provisions of 38 C.F.R. § 4.25 (2007). See also Colayong v. West, 12 Vet. App. 524, 531 (1999). Accordingly, the claim is remanded for the following actions: 1. The veteran must be asked to provide the names and addresses of all medical care providers who treated him for his SFW injuries to the left lower and right upper extremity since April 2006. After securing the necessary release, all records must be obtained and associated with the claims file. If any records identified by the veteran cannot be obtained, he must be so informed and it must be documented in the claims folder. 2. The veteran must be afforded a VA examination to determine the current severity of the SFWs to the left lower and right upper extremities. All indicated tests and studies are to be performed. The claims folder must be made available to the examiner for review in conjunction with the examination. The examiner must review the service medical records so that the extent of any muscle damage caused by the SFWs to the left lower and right upper extremity may be identified. The examiner must provide a response to the following: I. Identify all muscle groups affected, and the manifestations and degree of severity of any muscle damage caused by the SFWs to the left lower and right upper extremity. II. Include a detailed description of all scars resulting from the SFWs and subsequent surgery; indicated whether any scars are unstable, painful or tender on objective demonstration; whether there is any underlying soft tissue damage, or whether the scars limit function. III. Discuss all symptoms of muscle injury (loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination, and uncertainty of movement) and the severity of same. IV. Indicate whether there is evidence of loss of deep fascia or of muscle substance or impairment of muscle tonus and loss of power or lowered threshold of fatigue when compared to the sound side. V. Discuss whether the veteran has limitation of motion of any joint attributable to the service- connected shell fragment injuries; specifically, the left knee and right forearm and elbow. If so, the actual and normal ranges of motion must be listed. In addition, the examiner must be asked to determine whether any joint affected by the shell fragment injuries results in weakened movement, excess fatigability, or incoordination attributable to a service-connected disability; and, if feasible, these determinations must be expressed in terms of the degree of additional range of motion loss or ankylosis due to any weakened movement, excess fatigability, or incoordination. VI. The examiner must also be asked to express an opinion on whether pain could significantly limit functional ability during flare-ups or when any joint affected by the SFW's are used repeatedly over time. This determination must also, if feasible, be portrayed in terms of the degree of additional range of motion loss or ankylosis due to pain on use or during flare-ups. The clinical findings and reasons upon which the opinions are based must be typed or otherwise recorded in a legible manner for review purposes. 3. The veteran must be afforded a VA neurological examination to determine the nature and etiology of any identified residual disability in the left lower and right upper extremity associated with the SFWs. The claims folder must be made available to the examiner for review in conjunction with the examination. The examiner must review the service medical records so that the extent of any nerve damage caused by the SFWs may be identified. All indicated tests must be performed, to include NCV/EMG studies, and the findings reported in detail. The examiner must: (1) indicate whether any identified symptoms in the left lower and right upper extremity are related to the SFWs; and, if so, all such manifestations must be discussed. If feasible, the manifestations of any co-existing but unrelated conditions must be dissociated. (2) The examiner must provide a written discussion of the degree of residual weakness or sensory disturbances due to the SFWs, alone, and how it impacts on motor function of the effected joints. The examiner must disassociate any complaints or findings from the service- connected SFW residuals involving the left lower and right upper extremity. The clinical findings and reasons upon which the opinions are based must be typed or otherwise recorded in a legible manner for review purposes. 4. The veteran must be given adequate notice of the date and place of any requested examination. A copy of all notifications must be associated with the claims folder. The veteran is to be advised that failure to report for a scheduled VA examination without good cause shown may have an adverse effect on his claim. 5. Following completion of the foregoing, the AMC must review the claims folder and ensure that all of the foregoing development has been conducted and completed in full. The examination reports must be reviewed to ensure that it is in complete compliance with the directives of this remand. If a report is deficient in any manner, the RO must implement corrective procedures. 38 C.F.R. § 4.2 (2007). 6. After the requested development has been completed, the claims must readjudicated based on all the evidence of record, all governing legal authority, including the VCAA and implementing regulations, and any additional information obtained as a result of this remand. Consideration must also be given to whether separate ratings are warranted for any additional muscle, nerve, or scar residuals associated with the SFW disabilities. If the benefits sought on appeal remain denied, the veteran and his representative must be furnished a Supplemental Statement of the Case and given the opportunity to respond thereto. Thereafter, the case must be returned to the Board for further appellate review No action is required by the veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). JOY A. MCDONALD 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) (2007).