Citation Nr: 0814427 Decision Date: 05/01/08 Archive Date: 05/12/08 DOCKET NO. 96-06 856 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUES 1. Entitlement to a disability evaluation in excess of 40 percent for the residuals of a shell fragment wound of the right thigh, Muscle Group XIII, formerly Muscle Group XV, from October 1998. 2. Entitlement to a disability evaluation in excess of 30 percent for the residuals of a shell fragment wound of the right thigh, Muscle Group XIII, formerly Muscle Group XV, from January 1995 to October 1998. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Michael A. Pappas, Counsel INTRODUCTION The veteran-appellant had recognized guerilla service from April 1944 to December 1945 and regular Philippine army service from December 1945 to June 1946. This matter originally came before the Board of Veterans' Appeals (Board) on appeal from a June 1995 rating decision by the Department of Veterans Affairs (VA) Manila, Philippines, Department of Veterans Affairs (VA) Regional Office (RO) which, in pertinent part, denied the veteran's January 1995 claim of entitlement to a disability evaluation in excess of 20 percent for the residuals of a shell fragment wound of the right thigh, Muscle Group XV. In an August 2000 rating decision, in pertinent part, the veteran's right thigh disability was recharacterized as a residual of a shell fragment wound of the right thigh with injury to Muscle Group XIII, and the disability evaluation was increased to a 30 percent rating, effective from January 1995. In February 2004, the disability evaluation of the right thigh shell fragment wound injury to Muscle Group XIII was increased from a 30 percent rating to a 40 percent rating, effective from October 1998. When this matter was last before the Board of Veterans' Appeals ( Board) in July 2004, in pertinent part, the claim of entitlement to a disability evaluation in excess of 40 percent was denied for the residuals of a shell fragment wound of the right thigh, Muscle Group XIII, formerly Muscle Group XV. The veteran appealed the Board's July 2004 decision to the United States Court of Appeals for Veterans Claims (Court). In a June 2007 decision, the Court, in pertinent part, vacated the July 2004 Board decision as to the denial of a disability evaluation in excess of 40 percent for the residuals of a shell fragment wound of the right thigh, Muscle Group XIII, and remanded the matter to the Board for further development and re-adjudication. Staged ratings are appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). Consequently, the issue under appeal has been recharacterized as noted above. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the appellant if further action is required. REMAND The Court's June 2007 decision vacated and remanded the Board's denial of the increased rating under consideration herein based upon the Board's failure to consider an August 2003 VA examiner's findings that the veteran's combat wounds resulted in some injury to Muscle Group XV (i.e., the mesial thigh group rated under 38 C.F.R. § 4.73, Diagnostic Code 5315). The Court stated that the Board should have either explained why Diagnostic Code 5315 did not apply, consistent with the August 2003 medical findings, or determine whether the Muscle Group XV injury was compensable, and then apply 38 C.F.R. § 4.55 (Principles of Combined Ratings for Muscle Injuries) to the facts. In its July 2004 decision, the Board addressed the noted discrepancy by referencing the change in the designation of the muscle group that was affected by the shell fragment wound. The Board explained that the veteran's service- connected right thigh disability had been originally characterized as affecting Muscle Group XV, but that characterization was later changed to Muscle Group XIII. The Board referenced the findings of the VA examiner (Alfred C. Calado, M.D.) who had examined the veteran in August 2003, and who had noted that the veteran's complaints had centered along the length of the hamstring muscle group of the right thigh, which was consistent with x-ray findings of multiple shrapnel fragments along the length of that muscle group, Muscle Group XIII. The Board paraphrased Dr. Calado by stating that the confusion with Muscle Group XV was caused by the location of the surgical scars from the post-injury operation. As elaborated by the VA examiner (and noted in the Board's July 2004 decision), most of the scars are located in the medal aspect of the right thigh, but this was not the true affectation of the gunshot wound per se. Since the Court has found that further explanation is required, and since the Board is precluded from offering its own medical opinion, additional medical clarification or examination is required for the proper assessment of the veteran's claim. 38 U.S.C.A. § 5103A. Secondly, subsequent to the Board's July 2004 decision, the RO and the Board received additional medical evidence (in December 2004 and February 2005) that is relevant to the issue on appeal and must be considered in addressing that issue. Finally, upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). The RO provided the veteran post-initial adjudication of the increased rating issue on appeal by letters dated in May 2003 and July 2003. These notice letters, however, did not discuss the specific criteria for an increased rating, thus, the duty to notify has not been satisfied with respect to VA's duty to notify him of the information and evidence necessary to substantiate the claim. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). Under the circumstances, it is necessary that the case be remanded to the RO via the AMC for the following actions: 1. Provide the veteran with additional notice on his increased rating claim. This includes notification (1) that to substantiate his claim he must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of his shell fragment wound disability and the effect that worsening has on his employment and daily life; (2) generally, of the diagnostic code criteria necessary for entitlement to higher disability ratings that would not be satisfied by demonstrating a noticeable worsening or increase in severity of the disabilities and the effect of that worsening has on his employment and daily life; (3) that if an increase in disability is found, a disability rating will be determined by applying relevant diagnostic codes, which typically provide for a range in severity of a particular disability from 0% to as much as 100% (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life; and (4) of examples of the types of medical and lay evidence that he may submit (or ask VA to obtain) that are relevant to establishing entitlement to increased compensation (such as competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disabilities on appeal or exceptional circumstances relating to the disability). 2. Refer the veteran's claims file to Alfred C. Calado, M.D., of the VA Medical Center, Manila, if available, for review and clarification of the medical opinion provided in August 2003. If Dr. Calado is not available, refer the veteran's claims file to another physician skilled in the diagnosis and treatment of shell fragment wounds. If, but only if, required by Dr. Calado or the substitute physician, schedule the veteran for another VA examination of his service- connected right thigh disability. Based on the review of the case, and if necessary, the re-examination of the veteran, Dr. Calado or the substitute physician is requested to express an opinion as to whether the veteran's service-connected wound at issue includes involvement to any extent of Muscle Group XV, and if so the extent of that involvement and any specific disability resulting therefrom. If there is no involvement with Muscle Group XV, that should be specifically stated. Any opinions expressed by the examiner must be accompanied by a complete rationale. 4. Thereafter, review the claims file to ensure that all of the foregoing requested development has been completed, including in particular the requested claims file review or examination report and required medical opinions to ensure that they are responsive to and in complete compliance with the directives of this remand and if they are not, implement corrective procedures. 5. After undertaking any development deemed essential in addition to that specified above to include further VA examinations, readjudicate the veteran's claims of entitlement to a disability evaluation in excess of 40 percent for the residuals of a shell fragment wound of the right thigh, Muscle Group XIII, formerly Muscle Group XV, taking into consideration all of the evidence in the claims file. If any benefit requested on appeal is not granted to the veteran's satisfaction, issue a supplemental statement of the case (SSOC) and allow a reasonable period of time for a response. Thereafter, the case should be returned to the Board for final appellate review, if in order. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the veteran until he is notified; however, the veteran is hereby notified that failure to report for any scheduled VA examination(s) without good cause shown may adversely affect the outcome of his claim and result in a denial. 38 C.F.R. § 3.655 (2007). The appellant has the right to submit additional evidence and argument on the matter 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). _________________________________________________ M. E. LARKIN 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).