Citation Nr: 0812944 Decision Date: 04/18/08 Archive Date: 05/01/08 DOCKET NO. 07-01 794 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to a rating in excess of 20 percent for residuals of shell fragment wound of the right arm with cutaneous radial nerve injury. 2. Entitlement to a rating in excess of 70 percent for post traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Chaplin, Counsel INTRODUCTION The veteran served on active duty from October 1967 to October 1969. This matter comes before the Board of Veterans' Appeals (Board) from a July 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi, that denied an increased rating for residuals of shell fragment wound of the right arm with cutaneous radial nerve injury and assigned a 70 percent rating for PTSD effective in February 2006. The veteran presented testimony at a personal hearing in March 2008 before the undersigned Acting Veterans Law Judge. In April 2008, the Board granted the veteran's motion to have his case advanced on the Board's docket. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND Service medical records show that the veteran sustained a fragment wound to his right arm from a hand grenade explosion in Vietnam in March 1968. A small fragment was retained in his right arm. In a February 1970 rating decision, the veteran was granted service connection for scars of the right arm, right chest wall and right leg, residuals of shell fragment wounds with retained metallic foreign body in the right arm and right leg. A zero percent evaluation was assigned effective from October 20, 1969 under Diagnostic Code (DC) 7805 for evaluation of scars. At a VA examination in January 1970, an x-ray revealed a 2 x 6 (unit of measurement not shown) metallic fragment in the soft tissues of the middle third of the arm lying laterally. On examination in December 1970, the impression was that the veteran apparently had an injury to the superficial cutaneous radial nerve. The motor branches seemed to be intact. In a November 1970 rating decision, the RO assigned a 10 percent evaluation for residuals of shell fragment wound of the right arm, right leg and right chest wall, with retained metallic foreign body and injury to superficial cutaneous radial nerve. The RO rated it as a tender scar under DCs 7804-8514. DC 7804 is for evaluation of superficial painful scars and DC 8514 is for evaluation of the radial nerve. A VA examiner in April 1973 diagnosed that the shell fragment wound of the right arm with retained metallic foreign body involved the lateral antebrachial cutaneous and radial cutaneous nerve branches. In a September 2004 rating decision, the RO determined that it was to the veteran's advantage to separate the evaluations for his shell fragment wounds and the neurological deficit due to the shell fragment wound of his right arm was separately addressed. The RO assigned a 20 percent evaluation for residuals, shell fragment wound of the right arm with injury to cutaneous radial nerve under DC 8514 effective in August 2004. The veteran was afforded a nerve conduction study in February 2006 and a VA examination for scars in April 2006. He also was seen as an outpatient in February 2007. Since then he has complained that he had pain in his right arm which had been a problem. The veteran testified in March 2008 that his right arm was worse and that he experienced numbness from his shoulder blade to his fingers. As the veteran has asserted that the severity of his service-connected right arm disability has increased since the most recent rating examination, an additional examination is appropriate. 38 C.F.R. § 3.159(c); see Caffrey v. Brown, 6 Vet. App. 377 (1995); Green v. Derwinski, 1 Vet. App. 121 (1991). As such, the Board finds that a remand is necessary to afford the veteran a VA examination in order to provide an accurate assessment of his present degree of disability. In addition, in June 2007, the veteran submitted a notice of disagreement (NOD) which appears to be to a July 2006 rating decision that assigned a 70 percent disability rating for service-connected PTSD effective in February 2006. The filing of a NOD initiates the appeal process. Godfrey v. Brown, 7 Vet. App. 398 (1995). It does not appear that a statement of the case (SOC) has been issued with respect to the aforementioned issue. Accordingly, because a timely NOD regarding this issue has been submitted, a remand is required in order for the RO to provide the veteran a statement of the case (SOC). When a notice of disagreement has been timely filed, the Board should remand, rather than refer, the issue to the RO for the issuance of an SOC. Manlincon v. West, 12 Vet. App. 238 (1999); 38 U.S.C.A. § 7105(d)(1) (West 2002). Accordingly, the case is REMANDED for the following action: 1. Issue an SOC regarding the issue of entitlement to an increased rating for PTSD in a rating decision dated in July 2006 which assigned a 70 percent rating for PTSD effective in February 2006. Inform the veteran of his appeal rights. 2. Schedule the veteran for an appropriate VA examination to determine the current degree of disability of the veteran's service-connected residuals of shell fragment wound of the right arm (major). The claims folder must be reviewed by the examiner and the review should be noted in the examination report. Any indicated tests and studies should be performed. All current residuals, to include scars, and all resulting functional impairment should be identified. Specifically, the examiner should identify which nerves are involved in the veteran's right arm shell fragment wound disability and the symptoms related to the right arm injury. The examiner should address whether, in addition to the cutaneous radial nerve, other nerves are involved in the veteran's disability, e.g., the lateral antebrachial cutaneous nerve as diagnosed in April 1973. The examiner should offer an opinion as to whether the involvement of each of the nerves involved is wholly sensory or involves a motor component. Further, the examiner should offer an opinion as to whether there is mild, moderate or severe incomplete paralysis or complete paralysis of each of the affected nerves. The examiner is also asked to provide an opinion concerning the impact of the disability on the veteran's ability to work. The rationale for all opinions expressed should also be provided. 3. Then readjudicate the issue on appeal. If any benefit sought on appeal is not granted, the veteran should be provided a supplemental statement of the case and afforded the appropriate opportunity to respond. Thereafter, the case should be returned to the Board, if in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. 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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). _________________________________________________ STEVEN D. REISS Acting 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).