Citation Nr: 1124045 Decision Date: 06/23/11 Archive Date: 06/29/11 DOCKET NO. 06-37 680 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for residuals of a gunshot wound (GSW), right thigh, Muscle Group XIV. 2. Entitlement to an initial rating in excess of 10 percent for residuals of a GSW, right thigh, Muscle Group XV. REPRESENTATION Veteran represented by: Virginia Department of Veterans Services ATTORNEY FOR THE BOARD J. L. Prichard, Counsel INTRODUCTION The Veteran had active service from August 1990 to February 1994. These matters come to the Board of Veterans' Appeals (Board) on appeal from an April 2006 decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. The rating decision found that rating decisions dated in September 1997 and May 2003 contained clear and unmistakable error (CUE) and, in pertinent part, granted retroactive higher initial ratings for residuals of a GSW to the right leg, Muscle Groups XIV and XV, effective July 31, 1996, and granted service connection for scars on the right front leg, the right anterior lower leg and the right posterior thigh. This appeal was previously before the Board in March 2010, at which time the Veteran's three claims for higher initial ratings for scars of his right leg and thigh were denied. The Veteran did appeal these denials to the United States Court of Appeals for Veterans Claims (Court). The remaining two issues were remanded for additional development. The requested development having been completed, and as the decision has remained unfavorable to the Veteran, the final two issues have been returned to the Board for further appellate review. At this juncture, the Board notes the Veteran's contentions that his disabilities combine to make him unemployable. However, entitlement to a total rating based on individual unemployability due to service connected disabilities (TDIU) was denied in a July 2009 rating decision issued while the Veteran's other appeals were still active. He did not submit a notice of disagreement with this decision. Therefore, entitlement to a TDIU will not be addressed by the Board. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Veteran contends that the initial ratings assigned to his service-connected residuals of a GSW to his right leg and thigh are inadequate to compensate him for these disabilities. He argues that his disabilities are painful and make it difficult for him to find employment, particularly employment that involves physical labor. The record shows that service connection for the residuals of a GSW to the right leg was established in a September 1997 rating decision. He was evaluated by analogy to the diagnostic code for injuries to Muscle Group XIII and assigned a noncompensable (0 percent) rating, effective July 31, 1996. 38 C.F.R. § 4.73, Diagnostic Code 5313. In an April 2006 rating decision issued after the Veteran submitted his current claim in January 2006, it was determined that the single noncompensable rating under Diagnostic Code 5313 constituted CUE. As a result, the Veteran was service connected for residuals of a GSW to the right leg, Muscle Group XIV, and for residuals of a GSW to the right leg, Muscle Group XV. Separate initial 10 percent ratings were assigned to each of these disabilities, retroactively effective from July 31, 1996. The Veteran submitted a notice of disagreement with the initial 10 percent rating, and the current appeal ensued. The Veteran's most recent examination was performed in May 2010. The VA examiner reviewed the claims file in conjunction with the examination, noting that the Veteran had a history of being shot in the right thigh, which caused major damage to his quadriceps and hamstring muscles. The examiner stated that the Veteran's injury involved Muscle Groups XIII, XIV, and XV. As previously noted, the original grant of service connection included Muscle Group XIII. The May 2010 VA examination confirms that Muscle Group XIII was involved in the Veteran's injury. However, there is no indication of whether or not impairment of this muscle group is contemplated in either of the initial ratings assigned under Muscle Groups XIV and XV. This issue was not discussed in the April 2006 rating decision, or in any subsequent supplemental statements of the case (SSOCs). Therefore, before the Board is able to consider what the proper evaluation should be for the Veteran's residuals of a GSW to the right leg and thigh, it finds that VA should have an opportunity to consider how the residuals of the injury to Muscle Group XIII affects the overall evaluation of the Veteran's GSW residuals, to include whether the residuals to Muscle Group XIII should receive a separate compensable rating or whether they should be considered as part of, or as one, disability under the provisions of 38 C.F.R. § 4.55(e), which provides that for compensable muscle group injuries which are in the same anatomical region (here, the pelvic girdle and thigh), but do not act on the same joint, the evaluation for the most severely injured muscle group will be increased by one level and used as the combined evaluation for the affected muscle groups. In addition, the Board recently received a letter from the Veteran in which he states that he did not receive a copy of the most recent SSOC. He notes that he submitted a change of address form soon after the mailing of the SSOC, but that he did not receive this document. Thus, the Veteran must be provided with a copy of the most recent SSOC to ensure due process. Accordingly, the case is REMANDED for the following action: 1. Send the Veteran a copy of the SSOC issued on March 21, 2011 to the address he provided in April 2011. 2. After completion of 1 above, and any additional notification and development deemed warranted, readjudicate the appeal, in light of all pertinent evidence and legal authority. VA should document consideration of the history of the Veteran's GSW injury to the right leg and thigh and whether the residuals to Muscle Group XIII should receive a separate compensable rating or whether they should be considered as part of, or as one, disability under the provisions of 38 C.F.R. § 4.55(e), which provides that for compensable muscle group injuries which are in the same anatomical region (here, the pelvic girdle and thigh), but do not act on the same joint, the evaluation for the most severely injured muscle group will be increased by one level and used as the combined evaluation for the affected muscle groups, along with any other relevant provisions of 38 C.F.R. §§ 4.55 and 4.56. If any benefit sought on appeal remains denied, furnish the Veteran and his representative with an SSOC and give them an opportunity to respond thereto. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The Veteran need take no action until otherwise notified. The Veteran 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 appeal 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. 2010). _________________________________________________ M. R. VAVRINA 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) (2010).