Citation Nr: 1315028 Decision Date: 05/07/13 Archive Date: 05/15/13 DOCKET NO. 09-32 571 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to a rating in excess of 20 percent for residuals of a left shoulder gunshot wound (GSW). REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD A. P. Simpson, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from March 1971 to May 1974. This matter is before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision of the Houston, Texas Department of Veterans Affairs (VA) Regional Office (RO). The Veteran requested a Travel Board hearing in connection with this appeal. He was scheduled for such in May 2011, but failed to report. In August 2011, the Board remanded the matter for additional development. Thereafter, the Board sought an advisory medical opinion from a Veterans Health Administration (VHA) expert; such opinion was received in January 2013. The Board has reviewed the Veteran's claims file and Virtual VA (VA's electronic data storage system). The records in Virtual VA are either duplicates or contain information that is not relevant to this appeal. Upon review of the record following the VHA opinion, the Board found that as part and parcel of the Veteran's claim for increase there is a threshold matter regarding which Muscle Groups are acknowledged to have been injured by the left shoulder GSW. This matter is addressed below (on the merits). The matter of the rating for residuals of a left shoulder GSW (with injuries to Muscle Groups I, II, III, and IV) is being REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if action on his part is required. FINDING OF FACT The record now shows that the Veteran's left shoulder GSW resulted in injuries to Muscle Groups I, II, III and IV, each; to date only Muscle Groups III and IV have been recognized as service-connected residuals of the left shoulder GSW. CONCLUSION OF LAW Service connection for Muscle Groups I and II as additional residuals of the service-connected left shoulder GSW is warranted. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION A January 1975 rating decision granted the Veteran service connection for residuals of a left shoulder GSW with Muscle Group III and IV injuries recognized as the residuals. On September 2008 VA examination (in connection with the instant claim) the examiner found that Muscle Group I was the Muscle Group injured. In August 2011 the Board remanded the case for a VA examination to reconcile the conflict regarding the Muscle Groups involved. As the report of the September 2011 examination was inadequate, the Board ultimately sought guidance in the matter in the form of a VHA medical advisory opinion. The consulting orthopedic surgeon opined that Muscle Groups I, II, III and IV were each injured by the Veteran's left shoulder GSW. See January 2013 opinion. Specifically, he stated that he found that a January 1975 VA examination report had the best description of the GSW and that based upon that description, the muscles most likely involved would be the pectoralis major and minor close to their insertions, the supraspinatus and the trapezius. He noted, "The trapezius is a group I muscle. The pectoralis major and minor muscles are group II muscles. The pectoralis major is also a group III muscle. The supraspinatus is a group IV muscle." The Board finds this medical opinion probative and persuasive. The consulting VHA expert is an orthopedic surgeon, with presumed requisite expertise. The opinion cites to factual data and includes an explanation of rationale, with comment on the previous opinions in the matter. Accordingly, the Board finds that Muscle Groups I and II must be recognized as additional residuals of the service-connected left shoulder GSW. ORDER Service connection for Muscle Group I and II injuries as additional (to Muscle Group III and IV injuries) residuals of the Veteran's left shoulder GSW is granted. REMAND The grant of service connection for Muscle Groups I and II requires reconsideration of the rating for the service-connected residuals of the left shoulder GSW to encompass Muscle Groups I, II, III and IV. Due process considerations mandate that the RO has the opportunity to consider this matter in the first instance. Furthermore, there are apparently pertinent VA medical records that have not been associated with the record. The Board's August 2011 remand requested the RO to obtain "all records of treatment received for the residuals of his left shoulder GSW during the entire appeal period (i.e., those records not already associated with the claims file.). At that time, the record contained VA treatment records from 2000 to March 2008 and a July 2009 neurology outpatient note. In August 2011, the RO asked the Veteran to specify whether he had received any VA treatment for his left shoulder, and if so to identify the facility. In December 2011, the Veteran responded that he had received treatment at the Beaumont outpatient clinic and at the Houston VA Medical Center (MC). See VA Form 21-4138, Statement in Support of Claim. No additional VA treatment records have been associated with the record since the August 2011 remand. As VA treatment records are constructively of record, and may contain pertinent information, they must be secured. Finally, as the previous VA examinations have not acknowledged injuries to Muscle Groups I, II, III and IV, each, as residuals of the left shoulder GSW and because the outstanding evidence being sought may have a bearing on the matter, another VA examination to ascertain the severity of the service connected disability is required. Accordingly, the case is REMANDED for the following action: 1. The RO should secure for the record updated complete clinical records of all VA evaluations and/or treatment the Veteran has received for left shoulder GSW residuals since March 2008 from the Beaumont outpatient clinic and the Houston, Texas VAMC. 2. When the development sought above is completed, the RO should arrange for the Veteran to be examined by an orthopedic surgeon to determine the current severity of his residuals of a left shoulder GSW with injuries to Muscle Groups I, II, III and IV, each, acknowledged. The entire record (to include this remand and the VHA expert's opinion) must be reviewed by the examiner in connection with the examination. If possible, the examination should include the functional capacity evaluation suggested by the VHA expert in January 2003. [If such is not possible, there should be an explanation.] The examiner should address all the relevant clinical findings outlined in the Disability Benefits Questionnaire pertaining to Muscle Injuries, with any additional observations regarding functional impairment found noted. The examiner must explain the rationale for all opinions. 3. The RO should ensure that all development sought is completed, and then re-adjudicate the claim (with injuries to Muscle Groups I, II, III, and IV all included in the rating). If the benefit sought remains denied, the RO should issue an appropriate SSOC and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further review. The appellant 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 remanded by the Board 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). _______________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs