Citation Nr: 1113093	
Decision Date: 04/04/11    Archive Date: 04/13/11

DOCKET NO.  08-19 208	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUE

Entitlement to a compensable rating for a shrapnel wound of the right upper arm.  


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

Jennifer Hwa, Counsel



INTRODUCTION

The Veteran served on active duty from December 1966 to January 1970, including combat service in the Republic of Vietnam, and his decorations include the Combat Action Ribbon and the Purple Heart Medal.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia, that continued a noncompensable rating for a shrapnel wound of the right upper arm.  

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

The most recent VA examination evaluating the Veteran's shrapnel wound of the right upper arm was performed in June 2006.  Since that time, he has reported that the condition has worsened.  The Board thus has no discretion and must remand this matter to afford the Veteran an opportunity to undergo a contemporaneous VA examination to assess the current nature, extent, and severity of his shrapnel wound of the right upper arm.  See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43,186 (1995). 

Accordingly, the case is REMANDED for the following action:

1.  After associating any pertinent, outstanding records with the claims folder, afford the Veteran an appropriate VA examination to determine the nature, extent, and severity of his shrapnel wound of the right upper arm.  The claims folder should be made available to and reviewed by the examiner.  All indicated tests, including range of motion studies, should be performed.  

The examiner should express the findings of range of motion studies in degrees and in relation to normal range of motion, and should fully describe any pain, weakened movement, excess fatigability, and incoordination present.  To the extent possible, the examiner should express any functional loss in terms of additional degrees of limited motion of the affected joint.  

The examiner should also identify the muscle or muscles involved in the injury and make a finding as to whether the muscle injury is slight, moderate, moderately severe, or severe.  

The examiner must also identify any neurological impairment of the right upper arm.  

The examiner must additionally examine any residual scars from the shrapnel wound and determine the current state of any such scar.  

All findings and conclusions should be set forth in a legible report. 

2.  Then readjudicate the appeal.  In doing so, the RO must consider whether separate ratings are warranted for muscle, neurological and scar residuals.  If the benefits sought on appeal are not granted in full, the Veteran and his representative should be issued a supplemental statement of the case and provided an opportunity to respond.  

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. 2010).



_________________________________________________
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) (2010).