Citation Nr: 1314396 Decision Date: 05/01/13 Archive Date: 05/15/13 DOCKET NO. 05-41 453 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to a compensable rating for residuals of a shell fragment wound to the right chest for the period prior to September 20, 2012 and in excess of 10 percent thereafter. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. A. Rein, Counsel INTRODUCTION The Veteran had active service from September 1966 to April 1969. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. In April 2012, the Veteran testified during a hearing before the undersigned Veterans Law Judge at the RO; a transcript of that hearing is of record. In August 2012, the Board remanded this matter for additional development. Also at that time, the Board remanded claims for service connection for a hearing loss disability and for tinnitus. In a January 2013 rating decision, the Appeals Management Center (AMC) granted service connection for bilateral hearing loss and tinnitus. As this is considered a full grant of the benefit sought as to these two issues, they are no longer on appeal before the Board. In addition, in the January 2013 rating decision, the AMC granted a higher 10 percent rating for residuals of a shell fragment wound to the right chest, effective September 20, 2012. However, as higher ratings are available before and after September 20, 2012, and the Veteran is presumed to seek the maximum available benefit, the claim for a higher rating remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993). The appeal is REMANDED to the RO via the AMC, in Washington, DC. VA will notify the appellant if further action is required. REMAND Although further delay is regrettable, the Board finds that additional development is necessary prior to appellate review. Pursuant to the Board August 2012 remand instructions, the Veteran was afforded a VA scars examination and a VA muscle examination in September 2012. However, the evidence provided from these two examinations needs further clarification as they provide conflicting findings. In this regard, the Veteran testified during the April 2012 Board hearing that the range of motion of his right arm was limited by his service-connected residuals of a shell fragment wound of the right chest. In the September 2012 VA muscles examination report, the VA examiner indicated that the Veteran had an injury to the thoracic muscle group on the right side. Further there was an entrance and exit scar indicating track of missile through one or more muscle groups. The examiner did not indicate that the Veteran had any of the cardinal signs/symptoms attributable to a muscle injury. The examiner noted there was no loss of muscle substance. A chest x-ray revealed a single minute metallic fragment, right chest, overlying the ninth rib. The examiner discussed that the fragment is intrapulmonary and that this would have penetrated the intercostals muscles (Group XXI). There are no pulmonary residuals. This would not be a pain generator. The VA examiner opined that any symptoms related to his wound would be scar related and not muscle related. The September 2012 VA scars examiner noted that the Veteran had a deep, non-linear scar measuring 7.1 by 2.1 centimeters, right chest, immediately superior to the areola. The approximate total area of the anterior trunk affected was 12 centimeter squared. The VA examiner indicated that the Veteran's scar resulted in limitation of function. The examiner stated that the Veteran is unable to use his right arm easily due to pain induced in the scar from movement. When asked if the Veteran had any other pertinent physical findings, complications, condition, signs and/or symptoms (such as muscle or nerve damage) associated with any scar, the examiner responded "yes" and stated that there is pain in the muscle when the Veteran moves the region. However, the VA scar examiner's medical conclusion is clearly contrary to the VA muscle examiner's conclusion that any symptoms related to his wound would be scar related and not muscle related. In light of the above conflicting findings, the Board finds that the VA examination ordered in conjunction with the August 2012 remand instructions are inadequate. Specifically, without further clarification, the Board is without medical expertise to ascertain whether a separate rating is warranted for distinct manifestations of the Veteran's service-connected residuals of a shell fragment wound to the right chest. When medical evidence is inadequate, VA must supplement the record by seeking an advisory opinion or ordering another medical examination. Colvin v. Derwinski, 1 Vet. App. 171 (1991) and Hatlestad v. Derwinski, 3 Vet. App. 213 (1992). The Board considers it significant that complaints pertaining to range of motion of the right arm could represent a distinct manifestation (and thus, warranting separate ratings under different diagnostic codes) of the Veteran's service-connected residuals of shell fragment wound to the right shoulder, currently rated pursuant to the criteria for scars. See 38 C.F.R. § 4.14 (2012); Esteban v. Brown, 6 Vet. App. 259 (1994) ( noting that the rule against pyramiding does not forbid the assignment of separate ratings for diverse symptoms that are related to the same disorder). Accordingly, the case is REMANDED for the following action: 1. Arrange for the Veteran to undergo a VA examination by a physician with the appropriate expertise to determine the severity of the Veteran's service-connected residuals of a shell fragment wound to the right chest. The entire claims file must be provided to the examiner designated to examine the Veteran, and the examination report should reflect consideration of the Veteran's documented medical history and assertions. All necessary tests and studies should be accomplished and all clinical findings reported in detail. The examiner should clearly identify all symptoms pertaining to the Veteran's service-connected residuals of a shell fragment wound to the right chest. The examiner should also specifically address whether the Veteran's service-connected residuals of a shell fragment wound to the right chest is accompanied by any muscle injury, and if so, the specific muscle group(s) involved. If so, whether the overall degree of injury to each affected muscle group would be considered moderate, moderately severe, or severe. In this regard, the examiner should specifically state whether or not each of the cardinal signs and symptoms of a muscle disability is shown, including loss of power, weakness, lowered threshold of fatigue, fatigue pain, impairment of coordination, and uncertainty of movement. The examiner should also specifically address whether any scarring associated with the Veteran's residuals of a shell fragment wound to the right chest is deep or superficial, unstable, painful, or productive of limitation of function. The examiner should also include the measurements (length and width) of any such scars. The examiner should also discuss whether there is limitation of motion of the right arm due to the service connected impairment, to include providing range of motion findings. In providing this discussion, the examiner should address the significance, if any, of X-ray findings of a retained single minute metallic fragment, right chest, overlying the ninth rib. In providing the above opinions, the examiner must reconcile the conflicting findings from the September 2012 VA muscle examination and the September 2012 VA scars examination, as discussed in detail above. The examiner should set forth all examination findings, together with the complete rationale for the comments and opinions expressed. 2. Following completion of the above, and any other development that is deemed necessary, the Veteran's appeal should be readjudicated. The RO/AMC should document consideration of all applicable schedular rating criteria, to include whether separate ratings are warranted for distinct manifestations. 3. If any decision remains adverse to the Veteran, issue a supplemental statement of the case that addresses all appropriate rating criteria. The appropriate amount of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration. 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). _________________________________________________ F. JUDGE FLOWERS 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).