Citation Nr: 1308943	
Decision Date: 03/15/13    Archive Date: 03/25/13

DOCKET NO.  10-02 506	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines


THE ISSUES

1.  Entitlement to an initial rating in excess of 30 percent for service-connected injury to left Muscle Groups V and VI.

2.  Entitlement to a compensable initial rating for residual scars of the left upper extremity.

3.  Entitlement to an initial rating in excess of 10 percent for service-connected left shoulder traumatic arthropathy, prior to May 30, 2012.

4.  Entitlement to an initial rating in excess of 20 percent for service-connected left shoulder traumatic arthropathy, from May 30, 2012.

5.  Entitlement to service connection for a left leg disability, to include as secondary to a low back disability.  



REPRESENTATION

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


WITNESSES AT HEARING ON APPEAL

The Veteran and his spouse


ATTORNEY FOR THE BOARD

K. M. Schaefer, Counsel


INTRODUCTION

The Veteran had active service from April 1951 to August 1965, and from October 1965 to December 1970. 

These matters come before the Board of Veterans' Appeals (Board) on appeal from September 2008 and July 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines.  In the September 2008 rating decision, the RO, in relevant part, denied the Veteran's claim for entitlement to service connection for a left leg disability.  In the July 2009 rating decision, the RO granted entitlement to service connection for injury to Muscle Groups V and VI, moderate with residual scars, with an initial evaluation of 10 percent, and entitlement to arthropathy of the left shoulder, with an initial evaluation of 10 percent.  All ratings were effective February 26, 2008.  The Veteran then appealed the initially assigned ratings. 

In April 2011, the Veteran and his spouse testified at a personal hearing before the undersigned Veterans Law Judge, sitting at the RO.  A transcript of the hearing is associated with the claims file.  

In an October 2012 rating decision, a 30 percent rating was assigned to the service-connected left Muscle Groups V and VI, effective February 26, 2008, and a 20 percent rating was assigned to the service-connected left shoulder traumatic arthropathy, effective May 30, 2012.  Separate service connection was established for residual scars of the left upper extremity with a noncompensable rating assigned, effective from February 26, 2008.  However, as these ratings are still less than the maximum benefit available, the appeal is still pending.  AB v. Brown, 6 Vet. App. 35, 38 (1993). 

The issues of entitlement to service connection for posttraumatic stress disorder, a skin disorder due to herbicide exposure, hypertension, tinnitus, residuals of head injury, ischemic heart disease, and a disorder manifested by loss of stability and balance; whether new and material evidence has been received to reopen a claim for service connection for a low back disorder; and entitlement to special monthly compensation based on need for aid and attendance or housebound have been raised by the record.  While a VCAA notice was issued in November 2011, the record does not reflect that the issues have been adjudicated by the RO.  Therefore, the Board does not have jurisdiction over them, and, with the exception of the issue of whether new and material evidence has been received to reopen a claim for service connection for a low back disorder, they are referred to the RO for appropriate action.   (The issue of whether new and material evidence has been received to reopen a claim for service connection for a low back disorder is addressed further in the Remand below.)

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).

The issues of entitlement to an initial rating in excess of 30 percent for service-connected injury to left Muscle Groups V and VI, entitlement to a compensable initial rating for residual scars of the left upper extremity, and entitlement to service connection for a left leg disorder, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1.  Prior to May 30, 2012, service-connected traumatic arthropathy of the left shoulder was manifested by flexion to 150 degrees, abduction to 150 degrees, and internal and external rotation to 80 degrees as limited by pain with repetitive motion.

2.  From May 30, 2012, service-connected traumatic arthropathy of the left shoulder is manifested by flexion and abduction to 70 degrees each as limited by pain, weakness, incoordination, and excess fatigability on repetition.


CONCLUSIONS OF LAW

1. The criteria for an initial rating in excess of 10 percent have not been met for service-connected traumatic arthropathy of the left shoulder prior to May 30, 2012.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Codes 5201 (2012).

2. The criteria for an initial rating in excess of 20 percent have not been met for service-connected traumatic arthropathy of the left shoulder from May 30, 2012 forward.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Codes 5201 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Stegall Considerations

The Board observes that this case was remanded by the Board in August 2011.  The United States Court of Appeals for Veterans Claims (Court) has held "that a remand by this Court or the Board confers on the Veteran or other claimant, as a matter of law, a right to compliance with the remand orders."  See Stegall v. West, 11 Vet. App. 268, 271 (1998).  The purpose of the remand was to achieve further development of the claim, namely to schedule an additional VA examination.  A review of the post-remand record shows that the examination was performed in May 2012.  Therefore, the Board determines that the RO/AMC substantially complied with the Board's orders in the August 2011 remand, and that the Board may now proceed with adjudication of the claims.


II. VA's Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) imposes certain duties upon VA to notify the claimant of the shared obligations of the claimant and VA in developing his or her claim and to assist the claimant by making reasonable efforts to obtain relevant evidence in support of the claims.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).  

Here, the Veteran is appealing the initial rating assignment as to his left shoulder arthropathy.  Once service connection has been granted, the context in which the claim initially arose, the claim has been substantiated; therefore, additional VCAA notice under § 5103(a) is not required because the initial intended purpose of the notice has been fulfilled, so any defect in the notice is not prejudicial.  Goodwin v. Peake, 22 Vet. App. 128   (2008); Dunlap v. Nicholson, 21 Vet. App. 112   (2007).  Rather, thereafter, once a notice of disagreement (NOD) has been filed, for example contesting a downstream issue such as the initial rating assigned for the disability, only the notice requirements for a rating decision and statement of the case (SOC) described in 38 U.S.C. §§ 5104 and 7105 control as to the further communications with the Veteran, including as to what evidence is necessary to establish a more favorable decision with respect to downstream elements of the claim.  38 C.F.R. § 3.159(b)(3) (2012).  The RO has provided the Veteran the required SOC discussing the reasons and bases for not assigning a higher initial rating and citing the applicable statutes and regulations.


VA has also fulfilled its duty to assist the Veteran in making reasonable efforts to identify and obtain relevant records in support of the Veteran's claims and providing him with a VA examination.  The Veteran's service treatment records, VA medical records, private medical records, and the reports of February 2009 and  May 2012 VA examinations were reviewed by both the AOJ and the Board in connection with adjudication of his claims.  The Veteran has not identified any additional, relevant treatment records the Board needs to obtain for an equitable adjudication of the claims.

With regard to the VA examinations, the Board notes that once VA undertakes to provide a VA examination, it must ensure that the examination is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  In this case, each examiner documented the Veteran's subjective complaints and medical history, and evaluated the Veteran.  Thereafter, in the reports they provided information sufficient in detail and relevance to the rating criteria to allow for determination of the appropriate disability rating.  The Board observes that the February 2009 VA examiner indicated that review of the claims file was not requested by the RO.  However, the Board does not find that this fact renders the examination wholly inadequate.  In an initial rating claim, it is the findings upon examination that are most salient to the case.  Nothing suggests that either examiner documented findings inconsistent with the medical history outlined in the claims file or not representative of the Veteran's symptomatology; therefore, the Board finds the VA examination reports in this case adequate for rating purposes.  Accordingly, the Board concludes that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issues on appeal has been met.  38 C.F.R. § 3.159 (c)(4).  

In light of the above, the Board concludes that the medical evidence of record is sufficient to adjudicate the Veteran's claims without further development and additional efforts to assist or notify the Veteran in accordance with VCAA would serve no useful purpose.  See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran).  Therefore, the Board determines that the Veteran will not be prejudiced by the Board proceeding to the merits of the claims.

III. Analysis

Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2012).  The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment.  38 C.F.R. § 4.10.

Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating.  Otherwise the lower rating will be assigned.  38 C.F.R. § 4.7.  All benefit of the doubt will be resolved in the Veteran's favor.  38 C.F.R. § 4.3.
In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25.  Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran's service-connected disabilities.  38 C.F.R. § 4.14.

In Fenderson v. West, 12 Vet. App. 119 (1999), the Court held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder.  As such, the Board has considered all evidence of record in evaluating the Veteran's left shoulder disability.  Also, in Fenderson, the Court discussed the concept of the "staging" of ratings, finding that in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period.  Fenderson at 126-28.  As such, in accordance with Fenderson, the Board has considered the propriety of staged ratings in evaluating the Veteran's service-connected disability.

The Veteran's service-connected traumatic arthropathy of the left shoulder was assigned an initial 10 percent rating under 38 C.F.R. § 4.71a, Diagnostic Code 5201, prior to May 30, 2012 and then a 30 percent rating thereafter.  The Veteran contends that his symptomology is worse than is contemplated under these ratings, and that higher ratings should, therefore, be assigned.  

Rating evaluations for shoulder, arm, and hand, and related neurological disabilities are dependent on whether the arm involved is the major or minor, i.e., whether it is related to the dominant or nondominant hand.  Handedness for the purpose of a dominant rating will be determined by the evidence of record, or by testing on VA examination.  Only one hand shall be considered dominant.  38 C.F.R. § 4.69.  In this case, the Board observes that the Veteran testified in April 2011 that he is right-handed.  This fact was also documented by the February 2009 and May 2012 VA examiners.  Therefore, the rating criteria for the minor arm apply in this case.

Diagnostic Code 5201 provides for a 30 percent evaluation for the minor arm when motion is limited to 25 degrees from the side.  Limitation of motion to only shoulder level or to midway between the side and shoulder level warrants a 20 percent evaluation for the minor arm.  38 C.F.R. § 4.71a, Diagnostic Code 5201 (2012). 

In rating musculoskeletal disabilities, the provisions of 38 C.F.R. §§ 4.10, 4.40, and 4.45 are for consideration.  See DeLuca v. Brown, 8 Vet. App. 202 (1995).

The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment.  38 C.F.R. § 4.10.

Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance.  Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion.  Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled.  38 C.F.R. § 4.40.

With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes.  Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse.  38 C.F.R. § 4.45.

Normal range of shoulder motion is 180 degrees of flexion, 180 degrees of abduction, 90 degrees of internal rotation, and 90 degrees of external rotation.  38 C.F.R. § 4.71, Plate II.

Two VA examinations were performed for the left shoulder.  At a February 2009 VA examination, the Veteran had subjective symptoms of pain, stiffness, weakness, and decreased speed in the joint.  He indicated that he had severe flare-ups weekly, which lasted for hours.  Clinical findings were crepitus, tenderness, pain at rest, weakness, and guarding of movement.  Range of motion was limited by pain with further loss of function occurring with repetition.  At their most limited, as shown with repetition, flexion was to 150 degrees, abduction to 150 degrees, internal rotation to 80 degrees, and external rotation to 80 degrees.  The examiner stated there was no ankylosis.  The examiner indicated that the impact on activities was mild for most with shopping and exercise being moderately affected, recreation moderately to severely affected, and sports severely affected.  

At a May 2012 VA examination, the Veteran indicated that he feels pain in his left shoulder constantly, as well as weakness.  He reported experiencing a snapping and cracking sensation of the left shoulder.  Range of motion measurements revealed flexion and abduction each to 80 degrees with painful motion beginning at 75 degrees.  After repetition, motion was flexion and abduction to 70 degrees each, limited by pain, weakness, incoordination, and excess fatigability.  There was no ankylosis of the shoulder joint.  X-rays showed osteoarthritic changes of the shoulder and acromioclavicular joints with calcific peritendinitis supraspinatus on the left.  

Based on the above findings, the Board determines that ratings in excess of those assigned are not warranted.  A rating in excess of 10 percent contemplates limitation of flexion at the shoulder level.  As demonstrated at VA examination, even with repetition, the Veteran's left shoulder flexion was to past his shoulder at 150 degrees on VA examination in February 2009.  The Board observes that the Veteran has a diagnosis of degenerative osteoarthritis, which is established by X-ray.  Such disability is rated pursuant to 38 C.F.R. § 4.71, Diagnostic Codes 5003 and 5010 for traumatic arthritis.  A 10 percent rating for a major joint under Diagnostic Code 5010 is available if the limitation of motion of the joint is noncompensable.  In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code (i.e. such as Diagnostic Code 5201), a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met.  38 C.F.R. § 4.31.  As such, a 10 percent rating is appropriate prior to May 30, 2012.  

With the May 2012 VA examination, even prior to repetition and consideration of painful motion, the Veteran's flexion was to less than shoulder level at 70 degrees.  Even so, his left shoulder flexion was not limited to less than 70 degrees at any time.  A rating in excess of 20 percent is not warranted unless flexion of the minor arm is to no greater than 25 degrees from the side.  

The Board has contemplated the Veteran's statements with regard to the severity of his service-connected disabilities.  In particular, the Board notes that the May 2012 VA examiner documented his complaints of being unable to lift his shoulder over his head for the last three or four years.  However, it is not clear from that complaint to what degree the Veteran could raise his arm or what type of motion the Veteran was considering when making the statement.  At the February 2009 VA examination, the Veteran could forward flex and abduct his arm to 150 degrees, well above shoulder level.  Thus, while the Board acknowledges the Veteran's statement, it lacks probative value in comparison to the clinical evaluations of the left shoulder during the time periods in question.  In light of the above evidence, the Board determines that a rating in excess of 10 percent prior to May 30, 2012 and a rating in excess of 20 percent from May 30, 2012 forward are not warranted.  

Generally, evaluating a disability using either the corresponding or analogous diagnostic codes contained in the Rating Schedule is sufficient.  See 38 C.F.R. §§ 4.20, 4.27 (2012).  However, because the ratings are averages, it follows that an assigned rating may not completely account for each individual veteran's circumstance, but nevertheless would still be adequate to address the average impairment in earning capacity caused by disability.  However, in exceptional cases where the rating is inadequate, it may be appropriate to assign an extra-schedular rating.  38 C.F.R. § 3.321(b) (2012). 

The threshold factor for extra-schedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate, a task performed either by the RO or the Board.  Id.; see Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd, 572 F.3d 1366 (2009); see also Fisher v. Principi, 4 Vet. App. 57, 60   (1993) ("[R]ating [S]chedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical.").  Therefore, initially, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disabilities with the established criteria found in the Rating Schedule for that disability.  Thun, 22 Vet. App. at 115.  If the criteria reasonably describe the Veteran's disability level and symptomatology, then the Veteran's disability picture is contemplated by the Rating Schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. 

The Board finds that the Veteran's disability picture is not so unusual or exceptional in nature as to render the already assigned rating inadequate.  Service-connected traumatic arthropathy of the left shoulder is evaluated under the schedular criteria, which the Board has found to specifically contemplate the level of occupational and social impairment caused by this disability.  38 C.F.R. § 4.71a, Diagnostic Code 5201 (2012).  The Veteran's service-connected left shoulder disability is manifested by limitations of flexion, abduction, and internal and external rotation of the joint due to symptoms such as pain, fatigue, weakness, and incoordination.  When comparing this disability picture with the symptoms contemplated by the Rating Schedule, the Board finds that the Veteran's symptoms are congruent with the disability picture represented by the 10 percent disability rating assigned prior to May 30, 2012 and 20 percent disability rating assigned thereafter.  See also DeLuca, 8 Vet. App.  Evaluations in excess of that assigned are provided for functional impairment that has not been demonstrated in this case.  The criteria for the ratings assigned by the RO reasonably describe the Veteran's disability level and symptomatology.  Consequently, the Board concludes that a schedular evaluation is adequate and that referral of the Veteran's case for extra-schedular consideration is not required.  See 38 C.F.R. § 4.71a, Diagnostic Code 5201 (2012); see also VAOGCPREC 6-96; 61 Fed. Reg. 66749 (1996).

Finally, the Board observes that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a TDIU claim is part and parcel of an increased-rating claim when raised by the record or claimant.  The Board has jurisdiction to consider the Veteran's possible entitlement to a TDIU rating in these circumstances when the TDIU issue is raised by assertion, or reasonably indicated by the evidence, and is predicated at least in part on the severity of the service-connected disability in question, regardless of whether the RO has expressly addressed this additional issue.  See VAOPGCPREC 6-96 (Aug. 16, 1996).  See also Caffrey v. Brown, 6 Vet. App. 377, 382 (1994); Fanning v. Brown, 4 Vet. App. 225, 229 (1993); EF v. Derwinski, 1 Vet. App. 324 (1991).  In this case, the record does not reflect that the Veteran is currently employed.  However, while the May 2012 left shoulder examiner indicated that the disability would have a severe impact on the Veteran's functional capacity with regard to daily and recreational activities, the evidence does not suggest that the Veteran would be unable to obtain or maintain substantially gainful employment due solely to service-connected disability.  Further, the Veteran has not made such claims.  Therefore, the Board determines that further consideration of TDIU is not warranted. 

The Board has considered the applicability of the benefit of the doubt doctrine.  However, as the competent evidence does not support higher ratings for service-connected left shoulder traumatic arthropathy, the preponderance of the evidence is against higher initial ratings for this disability.  Therefore, the benefit of the doubt doctrine is not applicable in the instant appeal, and his claims must be denied.  38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. §§ 4.3, 4.7. 
 

ORDER

Entitlement to an initial rating in excess of 10 percent for service-connected left shoulder traumatic arthropathy prior to May 30, 2012 is denied.

Entitlement to an initial rating in excess of 20 percent for service-connected left shoulder traumatic arthropathy from May 30, 2012 forward is denied.


REMAND

The Board's review of the record indicates that the issues of entitlement to an initial rating for the service-connected injury to left Muscle Groups V and VI, entitlement to a compensable initial rating for residual scars of the left upper extremity, and entitlement to service connection for a left leg disability must be remanded.  With respect to the initial rating claims, the Board observes that an October 2012 rating decision increased the initial rating for injury to left Muscle Groups V and VI, from 10 percent to 30 percent, and assigned separate service connection for residual scars of the left upper extremity, with a noncompensable rating.  The rating decision stated that the 30 percent rating for left Muscle Groups V and VI was the maximum benefit available and that the issue was fully resolved.  However, this statement was in error.  Even though Muscle Groups V and VI act on the same joint, the elbow, they perform two separate actions and to rate them separately would not violate the prohibition against pyramiding.  38 C.F.R. § 4.14.  The rating decision did not address why separate ratings were not assigned.  It is also apparent from the January 2013 Informal Hearing Presentation that the Veteran still wishes to pursue a higher rating for this disability and does not consider the issue resolved.  However, the Board may not consider the merits of the issue at this time.  The October 2012 supplemental statement of the case did not address the muscle rating claim, except to indicate that a separate letter would be issued on the matter.  The assignment of a separate noncompensable rating for the residual scars of the left upper extremity should also be the subject of the supplemental statement of the case, as residual scars were initially combined with the appealed evaluation for left Muscle Groups V and VI.  Due process, and the Board's August 2011 remand, require that the Veteran be afforded a supplemental statement of the case prior to the Board's further consideration of these issues on the merits.  See Stegall v. West, 11 Vet. App. 268, 271 (1998).  Therefore, the issues of entitlement to an initial rating in excess of 30 percent for service-connected injury to left Muscle Groups V and VI, and entitlement to a compensable initial rating for residual scars of the left upper extremity, must be remanded.

As for the left leg service connection claim, the Board notes that the record reflects that adjudication of the Veteran's claim to reopen his claim for service connection for a low back disorder is in the process of being developed and adjudicated by the RO.  The claim was received in October 2011, and a VCAA notice was issued in November 2011, but the file does not include a rating decision on the matter.  A May 2012 VA examiner opined that the Veteran's left leg symptoms could be attributed to, among other things, radiculopathy secondary to lumbar spondylosis.  Therefore, the claim of entitlement to service connection for a left leg disorder as secondary to the low back disorder is raised by the record.  Thus, the outcome of the left leg disorder service connection claim is impacted by the outcome of the claim to reopen the claim for service connection for a low back disorder, and these claims are considered to be "inextricably intertwined."  The United States Court of Appeals for Veterans Claims has held that all issues inextricably intertwined with an issue certified for appeal are to be identified and developed prior to appellate review.  Harris v. Derwinski, 1 Vet. App. 180 (1991).  Consequently, the left leg disorder claim must be remanded to the AOJ in accordance with Harris.

Finally, as the issue of secondary service connection has been raised with regard to service connection claim for a left leg disorder, the Veteran should be sent corrective VCAA notice that addresses the criteria for a successful secondary service connection claim, to include notice in accordance with 38 C.F.R. § 3.310 and Allen v. Brown, 7 Vet. App. 439 (1995).

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. Send the Veteran a VCAA notice letter of the evidence required to substantiate a claim for secondary service connection, i.e., that his left leg disorder was incurred or aggravated beyond its normal progression as a result of his low back disorder, in accordance with Allen.

2. Complete the development and adjudication of the claim to reopen the previously denied claim seeking service connection for a low back disorder.  

3. After completing the above action and any other development deemed necessary, readjudicate the issues of entitlement to an initial rating in excess of 30 percent for service-connected injury to left Muscle Groups V and VI, to include consideration of separate ratings for each muscle group, entitlement to a compensable rating for residual scars of the left upper extremity, and entitlement to service connection for a left leg disorder, to include as secondary to a low back disorder.  If any benefit sought remains denied, provide a supplemental statement of the case to the Veteran and his representative, and return the appeal to the Board for appellate review, after the Veteran has had an adequate opportunity to respond.

The Veteran has the right to submit additional evidence and argument on the 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).

______________________________________________
U. R. POWELL
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs