Citation Nr: 0814114 Decision Date: 04/29/08 Archive Date: 05/08/08 DOCKET NO. 04-20 460 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas THE ISSUE Entitlement to a disability rating in excess of 10 percent for residuals of a gunshot wound to the left thigh involving Muscle Group XIII. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD David A. Brenningmeyer, Counsel INTRODUCTION The veteran served on active duty from February 1965 to February 1969. In January 2004, the RO denied the veteran's claim for a disability rating in excess of 10 percent for residuals of a gunshot wound to the left thigh involving Muscle Group XIII. The veteran appealed to the Board of Veterans' Appeals (Board). In October 2006, the Board denied the appeal. The veteran appealed the Board's October 2006 decision to the United States Court of Appeals for Veterans Claims (Court). In April 2007, the parties to the appeal filed a joint motion asking the Court to vacate the Board's decision and remand the matter for readjudication. The Court granted the motion later that same month. In July 2007, the Board remanded the case to the agency of original jurisdiction (AOJ) for additional development. The AOJ confirmed the prior denial and returned the matter to the Board. The case is now presented for further appellate consideration. For the reasons set forth below, this case is being REMANDED for additional development. VA will notify the veteran if further action is required on his part. REMAND In the joint motion filed with the Court in April 2007, the parties to this appeal agreed, among other things, that the Board needed to address whether the veteran was entitled to increased and/or separate ratings for his disability based on nerve impairment and/or impairment of the left hip and/or left knee joints. See, e.g., Esteban v. Brown, 6 Vet. App. 259 (1994). The parties agreed that if the Board determined that an examination was required in order to properly evaluate the veteran's disability, the examiner should provide an opinion, if possible, regarding which muscle group was involved. In order to address these and other concerns, the Board remanded the case for additional development in July 2007. The Board asked that the veteran be afforded an examination. Among other things, the examiner was to clearly identify the specific muscle group(s) involved and provide a full description any left hip and/or knee disability attributable to the in-service gunshot wound. Unfortunately, the requested development has not been completed. The record shows that the veteran was examined in August 2007. However, the examiner did not clearly identify the specific muscle group(s) involved, as requested in the remand: No opinion at all was offered as to the identity of the affected muscle group(s) in the original report of August 2007, and in a subsequent addendum to the report, dated in October 2007, the examiner noted-in passing, and without any substantive analysis-that the veteran had a service- connected gunshot wound involving Muscle Group XVIII. Further, although the examiner found that the veteran had cognizable disabilities of the left hip and knee (namely, left hip adductor muscle strain and left knee chondromalacia), no opinion was offered as to whether those disabilities were residuals of, or could otherwise be attributed to, the gunshot wound sustained in service. The Court has held that a remand by the Board confers on the appellant, as a matter of law, a right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Court has indicated, additionally, that if the Board proceeds with final disposition of an appeal, and the remand orders have not been complied with, the Board itself errs in failing to ensure compliance. Id. Given the Court's holdings on the matter, and the fact that the development sought in this case has not been fully completed, the Board has no choice but to return this case to the AOJ. A remand is required. 38 C.F.R. § 19.9 (2007). Records of the veteran's treatment at the VA Medical Center (VAMC) in Dallas, Texas were last received in July 2006. On remand, efforts should be made to obtain any records of relevant treatment he may have undergone since that time, in order to ensure that his claim is adjudicated on the basis of an evidentiary record that is as complete as possible. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2007). See also Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that VA is charged with constructive notice of medical evidence in its possession). For the reasons stated, this case is REMANDED for the following actions: 1. Obtain copies of records pertaining to any relevant treatment the veteran has received at the VAMC in Dallas, Texas since July 2006, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the claims file. 2. After the foregoing development has been completed, arrange to have the veteran's left leg examined. The examiner(s) should review the veteran's claims file. After examining the veteran, and conducting any evaluations, studies, and tests deemed necessary, the examiner(s) should fully describe any and all functional deficits associated with the service-connected gunshot wound of the veteran's left thigh. The final report should include the following: a. The examiner(s) should clearly identify the specific muscle group(s) involved in the gunshot wound. In so doing, the examiner(s) should comment on the accuracy of a statement appearing in the report of a September 2003 VA examination, to the effect that the veteran's injury involves Muscle Group XII. The examiner(s) should also comment on the accuracy of a statement appearing in an October 2007 addendum to an August 2007 VA examination report, to the effect that the veteran's has a service-connected injury involving Muscle Group XVIII. To the extent feasible, the examiner(s) should identify by name the specific, individual muscles involved, or likely involved, in the original in-service injury. b. The examiner(s) should offer an opinion as to whether the adductor muscle strain of the veteran's left hip, diagnosed on VA examination in August 2007, is a residual of, or has otherwise been caused or chronically worsened by, the service-connected gunshot wound of the veteran's left thigh. c. If it is determined that the adductor strain of the veteran's left hip is a residual of, or has otherwise been caused or chronically worsened by, the service-connected gunshot wound of the veteran's left thigh, the examiner(s) should conduct range of motion studies on the left hip. The examiner(s) should first record the range of motion observed on clinical evaluation, in terms of degrees, and should indicate whether the veteran can cross his legs. If there is clinical evidence of pain on motion, the examiner(s) should indicate the point at which such pain begins. Then, after reviewing the veteran's complaints and medical history, the examiner(s) should render an opinion, based upon his or her best medical judgment, as to the extent to which the veteran experiences functional impairments such as weakness, excess fatigability, incoordination, or pain due to repeated use or flare-ups, and should, if feasible, portray these factors in terms of degrees of additional loss in range of motion (beyond that which is demonstrated clinically). d. The examiner(s) should offer an opinion as to whether the chondromalacia of the veteran's left knee, diagnosed on VA examination in August 2007, is a residual of, or has otherwise been caused or chronically worsened by, the service-connected gunshot wound of the veteran's left thigh. e. If it is determined that the chondromalacia of the veteran's left knee is a residual of, or has otherwise been caused or chronically worsened by, the service-connected gunshot wound of the veteran's left thigh, the examiner(s) should indicate whether there is any evidence of recurrent subluxation or lateral instability of the knee associated with the chondromalacia and, if so, whether such subluxation and/or lateral instability is best described as slight, moderate, or severe. The examiner(s) should also conduct range of motion studies on the knee. The examiner(s) should first record the range of motion observed on clinical evaluation, in terms of degrees of flexion and extension. If there is clinical evidence of pain on motion, the examiner(s) should indicate the degree of flexion and/or extension at which such pain begins. Then, after reviewing the veteran's complaints and medical history, the examiner(s) should render an opinion, based upon his or her best medical judgment, as to the extent to which the veteran experiences functional impairments such as weakness, excess fatigability, incoordination, or pain due to repeated use or flare-ups, and should portray these factors in terms of degrees of additional loss in range of motion (beyond that which is demonstrated clinically). f. The examiner(s) should offer an opinion as to whether the veteran has any neurological impairment associated with the service-connected gunshot wound of his left thigh. In so doing, the examiner(s) should comment on statements appearing in the report of a September 2003 VA examination, to the effect that the veteran complained of tenderness, pain, and "slight numbness" in the area where he was shot, and that examiner's final impression that the veteran "had a gunshot wound with some muscle and nerve injuries, which are very slight, and causing minimal to mild pain . . . ." (Emphasis added.) g. If it determined that the veteran does have neurological impairment associated with the service-connected gunshot wound, the examiner should identify the specific nerve, or nerves, involved. For each affected nerve, the examiner should indicate whether the impairment is in the nature of a neuritis, a neuralgia, and/or paralysis. If paralysis of any nerve is identified, the examiner should indicate whether the paralysis is complete or incomplete and, if it is incomplete, whether the incomplete paralysis is best characterized as mild, moderate, moderately severe, or severe. The examiner should specifically indicate whether any noted nerve impairment causes any manifestations entirely separate and distinct from those occasioned by the muscle damage to the left thigh and, if so, should identify the disabling manifestations attributable to nerve injury alone. h. The examiner(s) should provide a full description of the entrance and exit wound scars on the veteran's left thigh, including the dimensions of the scars and information as to whether the scars are deep (i.e., associated with underlying soft tissue damage) or superficial; whether they are unstable; whether they are tender and painful on examination; and whether they cause limited motion or other limitation of function. A complete rationale for all opinions should be provided. 3. After the foregoing development has been completed, and action has been taken to satisfy the notice requirements set out at 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), take adjudicatory action on the matter of the veteran's entitlement to service connection and separate evaluations for left hip disability, left knee disability, and/or nerve impairment as secondary to, or a residual of, the service- connected gunshot wound of his left thigh, taking into account the provisions of 38 C.F.R. §§ 4.14, 4.55(a), and the Court's decision in Esteban. After a decision has been entered on those issues, notify the veteran of the outcome and of his right to appeal. Issues pertaining to service connection, rating, and/or effective date for these disabilities should be certified to the Board for review if, and only if, a timely notice of disagreement is received and, after a statement of the case (SOC) has been issued, the veteran perfects an appeal by filing a timely substantive appeal. See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.200, 20.201, 20.202, 20.302. 4. Also take adjudicatory action on the matter of the veteran's entitlement to a disability rating in excess of 10 percent for residuals of a gunshot wound to the left thigh (i.e. muscle injury). In so doing, consider whether "staged" ratings are warranted pursuant to Hart v. Mansfield, 21 Vet. App. 505 (2007). If the benefit sought remains denied, furnish a supplemental SOC (SSOC) to the veteran and his representative. The SSOC should contain, among other things, a citation to, and summary of, 38 C.F.R. §§ 4.40, 4.45, and 4.59. After the veteran and his representative have been given an opportunity to respond to the SSOC, and to any SOC issued pursuant to paragraph 3, above, the claims file should be returned to this Board for further appellate review. No action is required by the veteran until he receives further notice, but he may furnish additional evidence and argument while the case is in remand status. Kutscherousky v. West, 12 Vet. App. 369 (1999); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). The purposes of this remand are to procure clarifying data and to comply with governing adjudicative procedures. The Board intimates no opinion, either legal or factual, as to the ultimate disposition of this appeal. This matter must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court 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 L. COHN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of this appeal. 38 C.F.R. § 20.1100(b) (2007).