Citation Nr: 1309818 Decision Date: 03/22/13 Archive Date: 04/01/13 DOCKET NO. 06-11 519 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for a disability manifested by pain and weakness of the left side of the chest, to include as secondary to service-connected residual scar from left rib cage stab wound. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Laura E. Collins, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1975 to November 1978. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). This appeal was previously before the Board and in a July 2011 decision, the Board denied the claim. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In October 2012, the Court issued a memorandum decision, vacated the Board's decision, and remanded the matter to the Board for further proceedings consistent with its decision. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the Veteran if further action is required. REMAND During service, the Veteran sustained and was treated for a superficial stab wound to the left side of the chest. While localized swelling and tenderness to palpation were noted at that time, such were associated with localized cellulitis. During the October 1978 separation examination, the lungs, chest, and heart were each evaluated as normal. The Veteran is currently service connected for a scar as a residual of a left rib cage stab wound. However, the Veteran contends that he has a separate disability manifested by pain and weakness of the left side of the chest as a result of being stabbed during active service. VA treatment records show that in February 2002, the Veteran complained of having intermittent pain in the left side for a year. Upon examination, there was a tender area localized to the left flank where there was a stab wound scar. The tissue was noted to be slightly different from the right flank most likely due to scar tissue formation. No diagnosis was made with regards to any disability manifested by pain and weakness of the left side of the chest. During a December 2002 VA scars examination the Veteran denied tenderness to palpation of his left axillary scar. After a physical examination, the assessment was of a traumatic scar with evidence of subcuticular neuroma from a stab injury sustained in 1976. There were no complaints or findings with regards to a separate disability manifested pain and weakness of the left side of the chest. During another VA scars examination in January 2006, the diagnosis was of a scar secondary to a stab wound and no complaints or diagnoses were reported with regards to any disability involving pain and weakness of the left side of the chest. A February 2006 VA treatment record reveals that the Veteran complained of experiencing pain in the left lower chest wall for the prior year, which he related to a stab wound during service. Examination of the chest indicated no point tenderness of the ribs. The assessment was of musculoskeletal chest wall pain and the Veteran was treated with medication. A July 2010 VA examination revealed the Veteran endorsing having pain occasionally in the left inferior lower aspect of his chest. He denied any swelling, locking, or instability. He reported that his superficial stab wound affects lifting and sleeping and he has chronic pain of 9/10 in that area. Upon physical examination, there was a scar on the left in the mid-axillary area. The examiner found that there was questionable slight muscle wasting inferior to the scar. The scar itself displayed hyperalgesia, but there was no erythema, induration, or keloid formation. The scar did appear neurovascularly intact. There were no respiratory difficulties associated with the scar. The examiner stated the assessment of weakness of the anterior or mid-axillary chest wall was difficult to determine as there are no specific tests which can test for this; however, it did not appear that there was weakness noted. The examiner also found that there was no anatomic deformity noted from this superficial stab wound to the left mid-axillary area. The diagnosis was of left T10 mid-axillary superficial stab wound, remotely from 1976, which was resolved except for subjective tenderness to palpation on examination. The examiner opined that it is less likely than not that the Veteran had a current disorder of the chest wall which is related to his time in the military. The examiner explained that there is no clear or chronic disability from his superficial stab wound which occurred 35 years ago and at the time was associated with cellulitis and/or abscess formation. The examiner related that the Veteran did display an increased subjective response to palpation with tenderness; however, no physiological or anatomic basis for this increased tenderness was able to be identified on the examination. Following the Board's July 2011 decision denying the claim, the Court, in October 2012, remanded this matter to the Board. The Court noted the examiner's report that there was "questionable slight muscle wasting inferior to the scar noted." The Court then went on to state that the examiner did not provide a conclusion as to whether the Veteran has muscle wasting and if so, whether it was associated with the Veteran's scar. The Court also seems to suggest that because the VA Clinician's Guide indicates that the circumference of the atrophic muscle must be compared with the muscle on the opposite side, the examination is not adequate as the examiner did not provide measurements of the difference between the left chest wall muscle versus the right chest wall muscle. While the Board notes the examiner indicated that there were no specific tests which can test for weakness in the muscle at issue, it is not clear whether the examiner's statement also relates to the ability to measure the left chest wall muscle versus the right chest wall muscle for atrophy or wasting. In light of the Court's memorandum decision, the Board must remand this matter for an additional examination. In addition, the most recent VA treatment records in the claims file are dated in November 2009. The Veteran may have received additional treatment in the intervening time. Therefore, on remand, relevant VA treatment records from the Columbia VA Medical Center (VAMC) and Greenville VAMC dated from November 2009 to the present should be obtained for consideration in his appeal. Accordingly, the case is REMANDED for the following action: 1. Obtain VA treatment records from the Columbia and Greenville VAMCs dated from November 2009 to the present which are relevant to pain and weakness of the left side of the Veteran's chest. If there are no relevant records to obtain, the claims file should be annotated to reflect such and the Veteran notified of such. 2. After completing the above to the extent possible, schedule the Veteran for a VA muscle examination in order to determine whether any disability manifested by pain and weakness of the left rib cage area of the chest are related to the in-service stab wound or residual scar. The claims file and relevant electronic VA treatment records must be reviewed by the examiner in conjunction with the examination. Any necessary tests should be conducted. After examining the Veteran and reviewing the claims file, the examiner should: a) Specifically indicate whether there is any muscle wasting or atrophy in the area of the stab wound. If so, the examiner should attempt to measure the difference between the left and right side musculature of the chest. If it is not possible to provide a measurement of the chest wall muscles for the left and right sides, the examiner should specifically state why such comparison measurements cannot be accomplished. b) If there is muscle wasting, atrophy, or muscular weakness in the left chest muscle in the area of the stab wound, provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that such muscle wasting, atrophy, and/or weakness is etiologically related to the stab wound in service or the residual scar. The examiner must provide the medical reasoning for all conclusions reached. c) If there is no muscle atrophy, wasting, or weakness found in the left chest muscle in the area of the stab wound, please indicate whether there is any other disability of the left side of the chest manifested by pain and weakness. If so the examiner should provide a diagnosis for such. Thereafter, the examiner should provide an opinion as to whether such diagnosed disability is at least as likely as not related to the stab wound in service or the residual scar. The examiner must provide the medical reasoning for all conclusions reached. 3. The RO/AMC should then readjudicate the Veteran's claim. If the benefit sought on appeal remains denied, then the Veteran and his representative should be furnished with a supplemental statement of the case and be given the 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 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 or by the Court 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). _________________________________________________ K. A. BANFIELD 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).