Citation Nr: 1036780 Decision Date: 09/28/10 Archive Date: 10/05/10 DOCKET NO. 06-00 916 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to an increased evaluation for residuals, shell fragment wound (SFW), muscle group (MG) XIII, right thigh, currently evaluated as 10 percent disabling. 2. Entitlement to an increased evaluation for residuals, SFW, MG XIV, right thigh, currently evaluated as 10 percent disabling. 3. Entitlement to an increased evaluation for residuals, SFW, MG XV, right thigh, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Katrina J. Eagle, Attorney ATTORNEY FOR THE BOARD Michael J. Skaltsounis, Counsel INTRODUCTION The Veteran had active service from October 1963 to August 1967. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, that denied the Veteran's claims for increased ratings in connection with muscle damage to MG XIII, XIV, and XV. In February 2008, the Board remanded the claims for evidentiary and procedural considerations. The Board issued a decision in July 2009 denying the appellant's claims. The appellant appealed that decision to the United States Court of Appeals for Veterans Claims (Court), and, pursuant to a May 2010 Joint Motion for Remand, an Order of the Court, also dated in May 2010, vacated the Board's decision and remanded the case to the Board for compliance with the instructions in the Joint Motion. The record further reflects that, pursuant to a directive of the Board's previous remand in July 2009, the RO issued a statement of the case with respect to the issue of entitlement to an initial compensable rating for sensory neuropathy in the distribution of the S1 nerve of the right thigh. However, since there is no indication that the Veteran filed a substantive appeal with respect to this issue, the Board finds that it does not have jurisdiction over this matter. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND The parties to the Joint Motion for Remand concluded, in part, that the results of the June 2008 VA examination were deficient to the extent that the examiner noted that pain that could limit the Veteran's function, but did not discuss any loss of range of motion due to flare-ups. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate); see also Stegall v. West, 11 Vet. App. 268, 271 (1998) (where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). Consequently, as a result of the determination of the parties to the Joint Motion, the Board finds that the Veteran should be scheduled for a new examination to address whether the Veteran's pain can limit his function, and if so, the loss of range of motion due to flare-ups. Since the Veteran last underwent a neurological examination in July 2008, while the case is in remand status, the Board finds that the Veteran should also be scheduled for a new neurological examination. Accordingly, the case is REMANDED for the following action: 1. Make arrangements for the Veteran to have appropriate examination(s) (to include a neurological evaluation) to determine the current condition of his residuals of the shell fragment wound (muscle groups XIII, XIV, and XV) of the right thigh. The claims folder, to include a copy of this Remand, must be made available to and reviewed by the examiner(s) in conjunction with the examination report(s). Any indicated studies should be performed. The examiner(s) should identify all residuals attributable to the Veteran's service-connected shell fragment wound to the right thigh, to include any scars, muscle, orthopedic, and neurological residuals. If a right hip or right knee disability (including arthritis) is present, the examiner(s) should provide an opinion as to whether it is at least as likely as not that it is a residual of the service- connected shell fragment wound or was caused or aggravated by the service- connected shell fragment wound. The examiner(s) should note the range of motion measurements for the right knee and right hip, including flexion, extension, abduction, adduction, and inward and outward rotation, as appropriate. Whether there is any pain, weakened movement, excess fatigability or incoordination on movement should be noted, and whether there is likely to be additional range of motion loss due to any of the following should be addressed: (1) pain on use, including during any flare- ups; (2) weakened movement; (3) excess fatigability; or (4) incoordination. The examiner(s) is asked to describe whether pain significantly limits functional ability during flare-ups or when the right knee or right hip is used repeatedly. All limitation of function must be identified. If there is no pain, no limitation of motion and/or no limitation of function, such facts must be noted in the report. The examiner(s) should specifically discuss the severity of any muscle impairment, including of Muscle Groups XIII, XIV, and XV. The examiner(s) should also describe in detail the Veteran's scars. Finally, the examiner(s) should state whether there are any neurological residuals associated with the Veteran's service-connected disability and identify any nerves involved. If so, the examiner(s) should also specifically discuss the extent, if any, of paralysis of the nerves involved. The examination report(s) must provide complete rationale for all opinions. 2. The RO should read the medical opinions obtained to ensure that the remand directives have been accomplished, and should return the case to the examiner if all questions posed are not answered. 3. Finally, readjudicate the issues on appeal. If the claims remains denied, provide the Veteran and his representative with a supplemental statement of the case, and allow an appropriate period for response. 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. 2009). _________________________________________________ P.M. DILORENZO 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) (2009).