Citation Nr: 1300912 Decision Date: 01/09/13 Archive Date: 01/16/13 DOCKET NO. 09-17 887 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for memory loss due to a head injury. 2. Entitlement to an evaluation in excess of 30 percent for service-connected phlebitis, unilateral, left thigh residuals of shell fragment wound (SFW). 3. Entitlement to a compensable evaluation for service-connected shell fragment wound scar on the scalp. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. M. Donahue, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1952 to February 1953. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2007 RO decision, which denied the aforementioned claims. The issues were remanded by the Board in June 2012 for a Board hearing. In July 2012, the RO requested the Veteran inform them as to what kind of hearing the Veteran wanted, videoconference or in-person hearing. The Veteran did not respond, and the December 2012 post-remand brief from the Veteran's representative did not mention whether the Veteran continued to desire a Board hearing. The Board considers the hearing request withdrawn. 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. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). REMAND After having carefully considered the matter, and for the reasons expressed immediately below, the appeal must be remanded for further development. In November 1952, the Veteran sustained left thigh and scalp injuries by mortar fire. He was operated on and the femoral artery and vein on the left were found to be involved. A portion of the femoral artery was resected and a heterogeneous graft was used to re-establish continuity. The formal vein was ligated, and a scalp wound was sutured. Six days after surgery, the graft was examined and found to be intact. Upon physical examination in December 1952, the Veteran was moderate swelling of the left thigh and calf and flexion at the knee was limited by 20 to 30 degrees. There was no gross nerve involvement and muscle strength was good. Because of the absence of the left femoral vein, it was noted that the Veteran experiences swelling of the left calf whenever he is up and around. During a January 1954 VA examination, the Veteran complained of pain in the left leg and swelling. Upon physical examination, the examiner noted that the Veteran's knees, ankles, and feet have normal range of motion. There is some swelling of the left lower extremity noted in comparison with the right. There were no varicosities noted. The dorsal pedis pulsations are palpable in the left foot, but considerably weaker than the right. The left leg had good strength on motions against resistance, but it is about three fourths of that of the right. The Veteran reported his left leg tires much faster than the right. The diagnosis was residuals, postoperative scars, left thigh and leg, healed, non-symptomatic with persistent swelling of left lower extremity, symptomatic on exertion. The Veteran was given a VA examination for his SFW scalp scars and phlebitis due to SFW of the left thigh in December 2006. In April 2007, the Veteran underwent a reoperation of the left femoral-popliteal bypass. The Veteran has not been examined since his April 2007 surgery. Furthermore, the most recent examination, while addressing the Veteran's residual scars and phlebitis, does not address whether the Veteran has any current residual muscular disability as a result of his significant in-service injury. The Veteran was scheduled for additional VA examinations for his SFW scalp scars and phlebitis due to SFW of the left thigh in July 2009. He was also scheduled for an examination to ascertain whether he has a current memory loss disability due to his active military service. The Veteran failed to report; however, it is unclear if the Veteran received notice of the examinations. Furthermore, there is no supplemental statement of the case dated after the July 2009 missed examination. In a May 2012 brief, the Veteran's representative argued that the Veteran's left leg phlebitis has increase in severity. The Veteran was also noted to have complained of increased pain and swelling in his left leg since his last VA evaluation. The U. S. Court of Appeals for Veterans Claims has held that where the veteran claims that a disability is worse than when originally rated, and the available evidence is too old to adequately evaluate the current state of the condition, VA must provide a new examination. See Olsen v. Principi, 3 Vet. App. 480, 482 (1992), citing Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992); see also Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991) (observing that where the record does not adequately reveal the current state of the claimant's disability, a VA examination must be conducted). Therefore, to ensure that the record reflects the current severity of the Veteran's service-connected SFW left thigh residuals and SFW head scars, contemporaneous examinations are warranted, with findings responsive to the applicable rating criteria. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide the Veteran with a thorough and contemporaneous medical examination, one which takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one) and Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (an examination too remote for rating purposes cannot be considered contemporaneous'). With respect to the claim for service connection for memory loss, the Board observes that the Veteran received significant combat related injuries during service. On remand, he should be afforded a VA examination to ascertain whether he has a memory loss disability that is etiologically related to service to include his exposure to combat. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. The RO or AMC should schedule the Veteran for appropriate VA examination(s) to determine the nature and severity of any vascular and muscle manifestations of the Veteran's service-connected SFW residuals of the left thigh. The examination(s) should be conducted by a physician who is competent to discuss residual muscle and vascular injuries following a SFW (including the cardinal signs and symptoms of muscle disability). Specifically, the examiner should identify any muscle group affected by the Veteran's shell fragment wounds and describe in detail any associated muscle disability. All indicated tests and studies should be performed, and all clinical findings should be reported in detail. The Veteran's claims folder, including a copy of this Remand, must be provided to the examiner for review in conjunction with the examination because the nature of the Veteran's injuries and initial treatment is particularly important in the evaluation of SFW residuals. The examiners' reports must explicitly state that such a review occurred. With regard to the Veteran's vascular symptoms, the examination must be conducted following the protocol in VA's Disability Benefits Questionnaire for artery and vein. With regard to any muscle symptoms related to the Veteran's SFW of the left thigh, the examination must be conducted following the protocol in VA's Disability Benefits Questionnaire for muscle injuries. The examiner must provide a comprehensive report including complete rationales for all conclusions reached, citing the objective medical findings leading to the conclusions. 2. The RO or AMC should also schedule the Veteran for a VA scar examination to determine the nature and severity of the Veteran's service-connected SFW wound to his scalp. All indicated tests and studies should be performed, and all clinical findings should be reported in detail. The Veteran's claims folder, including a copy of this remand, must be provided to the examiner for review in conjunction with the examination. The examiners' reports must explicitly state that such a review occurred. 3. The RO or AMC should also schedule the Veteran for an examiner to determine the nature and severity of any current memory loss disability. All indicated tests and studies should be performed, and all clinical findings should be reported in detail. The examiner should be asked to identify any current disability that is manifested by memory loss. For each disability identified, the examiner should be asked to proffer an opinion as to whether it is at least as likely as not (i.e. probability of 50 percent or greater) that the disability is etiologically related to service to include the Veteran's in-service combat exposure and shell fragment wounds. The Veteran's claims folder, including a copy of this remand, must be provided to the examiner for review in conjunction with the examination. The examiners' reports must explicitly state that such a review occurred. 4. The Veteran is hereby notified that it is his responsibility to report for any examination, and to cooperate in the development of the claims. The consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655. 5. Thereafter, the RO or AMC should review the claims folder to ensure that the foregoing requested development has been completed. In particular, the RO or AMC should review the examination report to ensure that it is responsive to and in compliance with the directives of this remand, and if not, implement corrective procedures. See Stegall v. West, 11 Vet. App. 268 (1998). 6. Then, after ensuring any other necessary development has been completed, readjudicate the Veteran's claims. If any determination remains adverse to the Veteran, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate opportunity to respond. Thereafter, the case should be returned to the Board. 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. 2012). _________________________________________________ DAVID L. WIGHT 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) (2012).