Citation Nr: 1304950 Decision Date: 02/11/13 Archive Date: 02/21/13 DOCKET NO. 07-14 599 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to an evaluation in excess of 10 percent for residuals of a right anterior chest shell fragment wound (SFW). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Kristi L. Gunn, Counsel INTRODUCTION The Veteran served on active duty from April 1969 to April 1970 and from August 1990 to July 1991. The Veteran also has unverified periods of Reserve duty with the Air Force Reserves. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2006 rating decision of the Philadelphia, Pennsylvania, Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before a Decision Review Officer (DRO) in March 2009. A copy of the transcript is of record. The Board notes that a hearing was held before a Veterans Law judge in November 2009. The Veterans Law Judge who conducted the hearing subsequently left the Board. In August 2012, the Veteran was notified that the Veterans Law Judge was no longer employed by the Board and was offered the opportunity to have another hearing before a member of the Board. The Veteran informed the Board that he did not wish to have another Board hearing; therefore, no additional action is needed. This case was previously before the Board in May 2011, at which time, the Board denied an increased rating in excess of 10 percent for the Veteran's service-connected residuals of a right anterior chest SFW. The Veteran appealed the Board's May 2011 decision to the United States Court of Appeals for Veterans Claims (Court). By order dated February 2012, the Court granted a Joint Motion for Remand, vacated the May 2011 Board decision, and remanded the case for compliance with the terms of the joint motion. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. 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 Pursuant to the February 2012 Joint Motion for Remand, and upon preliminary review of the record with respect to the Veteran's claim, further development is required prior to final appellate review. As previously mentioned, the Court vacated the May 2011 Board decision, which denied an increased rating for the Veteran's service-connected residuals of a right anterior chest SFW, and remanded the issue to the Board for compliance with directives that were specified by the Court. The Court found that the Board's statement of reasons and bases was inadequate for judicial review. The Court indicated that while the Board determined that an increased rating for the Veteran's service-connected disability was not warranted under Diagnostic Code 5321, Muscle Group (MG) XXI, the Board failed to consider an additional diagnostic code. Specifically, the Court explained that in an August 2010 VA examination report, the VA examiner described a defect consistent with a tear of an external oblique muscle between the fourth and fifth ribs. The external oblique muscle falls within Muscle Group (MG) XIX. The Court stated that the Board failed to consider whether a separate disability rating was warranted under Diagnostic Code 5319, MG XIX for the tear of an external oblique muscle. In addition, the Court stated that the Board did not consider whether the Veteran is entitled to a separate disability rating for shrapnel in his lung. Review of the evidentiary record reveals that the claim was previously remanded by the Board in March 2010. According to the March 2010 remand, the Board requested the Veteran to be scheduled for a VA examination to determine the current severity of his service-connected disability. The remand stated that the examiner must describe the location of all the shell fragments identified with respect to whether it is located in MG XXI or another muscle group, and to make a medical evaluation of the symptoms, if any, resulting from the shell fragment. In August 2010, the Veteran was afforded a VA examination for his service-connected disability. Based upon the x-rays from a prior VA examination in April 2009, the VA examiner concluded that there are four individual pieces of shrapnel in the Veteran's body. The VA examiner noted the locations as to the pieces as follows: one overlying the anterior chest wall between the fifth and sixth ribs, one immediately superior to the seventh rib, one that overlies the eighth rib, and one that overlies the fifth rib on the right. The VA examiner also noted the tear of an external oblique muscle between the fourth and fifth ribs. While the Court concluded that the Board failed to discuss whether a separate rating was warranted for the noted tear of an external oblique muscle between the fourth and fifth ribs, the Board finds that it is unclear as to whether the tear of an external oblique muscle between the fourth and fifth ribs is actually SFW-related or a residual of the right anterior chest SFW. As mentioned above, the August 2010 VA examiner concluded that the SFW had broken into four individual pieces and were located in areas involving the anterior chest wall and the fifth, sixth, seventh, and eighth ribs. There is no mention of shrapnel pieces between the fourth and fifth ribs causing an external oblique muscle tear or that the tear is a residual of the right anterior chest SFW. In light of the February 2012 Joint Motion for Remand, the Board finds that the August 2010 VA examination is incomplete as it remains unclear whether the external oblique muscle tear between the fourth and fifth ribs is SFW-related or a residual of the right anterior chest SFW. In order to make an accurate assessment of the Veteran's service-connected residuals of a shell fragment wound to the right anterior chest, it is necessary to have a medical examination based upon a thorough review of the record and examination of the Veteran to determine the extent of the residuals of the gunshot wound involving the right anterior chest. As the case must be remanded for the foregoing reasons, any recent treatment records should also be obtained. Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to identify all VA and private medical care providers that have treated him for residuals of a shell fragment wound of the right anterior chest since August 2010. Make arrangements to obtain all records that he adequately identifies. 2. Thereafter, arrange for the Veteran to be afforded an appropriate VA examination(s) to determine the current severity of the residuals of a shell fragment wound of the right anterior chest. The Veteran's claims folder, including the pertinent medical records contained therein must be reviewed by the examiner in conjunction with the examination. All tests and studies deemed appropriate should be performed, and all clinical findings should be reported in detail. The examiner should record a complete history, all pertinent medical complaints, symptoms, clinical findings, and comment on the functional limitation, if any, caused by the Veteran's condition. All motion must be documented in degrees. Functional impairment, and any objective signs reflecting such impairment should be documented. Specifically, the examiner should recognize all of the muscle groups involved, and specify the degree of injury to those muscle groups, as well as what functional abilities are affected. A specific determination should be made as to whether there is any involvement of MG XIX; and whether the Veteran has tear of an external oblique muscle between the fourth and fifth ribs as a residual of his shell fragment wound of the right anterior chest. The examiner should also comment as to whether the disabilities associated with each of the affected muscle groups would be considered moderate, moderately severe, or severe. In this regard, he/she should comment concerning the presence or absence of the cardinal signs and symptoms of muscle disability, including loss of power, weakness, lowered threshold of fatigue, fatigue pain, impairment of coordination, and uncertainty of movement. Additionally, the examiner should indicate whether any scars associated with the injuries are superficial, poorly nourished, or with repeated ulceration; or are tender and painful on objective demonstration, as well as document the size of all scars in square centimeters. Furthermore, it should be considered whether there are any separate and distinct musculoskeletal and/or neurological manifestations of the Veteran's service-connected residuals of a shell fragment wound of the right anterior chest. The examiner should also indicate whether or not there is shrapnel in the Veteran's lung, and if so, describe all impairment associated with this finding, to include any pulmonary impairment. All opinions and conclusions must be supported by complete rationale. 3. After the requested examination has been completed, the report should be reviewed to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, it should be returned to the examiner for corrective action. 4. Finally, readjudicate the claim currently on appeal. If the benefit remains denied, the Veteran and his representative should be provided with a supplemental statement of the case (SSOC), and 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). _________________________________________________ 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) (2012).