Citation Nr: 1319165 Decision Date: 06/12/13 Archive Date: 06/21/13 DOCKET NO. 06-34 102 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to a rating in excess of 20 percent for gunshot wound (GSW) residuals in the left shoulder area to Muscle Group (MG) I. 2. Entitlement to a higher initial rating for coronary artery disease (CAD). 3. Entitlement to an earlier effective date for the grant of special monthly compensation (SMC). REPRESENTATION Appellant (Veteran) represented by: The American Legion WITNESSES AT HEARINGS ON APPEAL Veteran and spouse ATTORNEY FOR THE BOARD Christopher McEntee, Counsel INTRODUCTION The Veteran served on active duty from July 1966 to May 1968. This case comes before the Board of Veterans' Appeals (Board) on appeal of an April 2005 rating decision by the Department of Veterans Affairs (VA) Regional Offices (RO) in Phoenix, Arizona. This case was later transferred to the VA RO in Winston-Salem, North Carolina. The Board remanded this matter for additional medical inquiry in August 2012. In addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claims. Certain evidence has been added to the paper claims file since the most-recent supplemental statement of the case (SSOC) in February 2013. This evidence has been considered pursuant to July 2012 and March 2013 waivers of initial review of the new evidence by the Agency of Original Jurisdiction (AOJ). 38 C.F.R. §§19.31, 20.1304 (2012). As indicated in its August 2012 remand, the Veteran has claimed clear and unmistakable error (CUE) in the July 1969 rating decision, which granted service connection for GSW residuals in the left shoulder and assigned a 20 percent rating under the rating criteria for Muscle Group (MG) I. This issue has not been adjudicated by the AOJ. As the Board does not have jurisdiction over the issue, it is referred to the AOJ for appropriate action. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND With regard to the claim for a higher initial rating for CAD, and for an earlier effective date for the grant of SMC, remand is required so that a statement of the case (SOC) can be issued to the Veteran. The RO initially decided the claims in January 2011, against which the Veteran filed a notice of disagreement (NOD) in statements received by VA in October 2011 and January 2012. An SOC must be provided to give the Veteran an opportunity to perfect an appeal of the issues. 38 C.F.R. § 19.26; Manlincon v. West, 12 Vet. App. 238 (1999). With regard to the claim for an increased rating for disability associated with MG I, a remand is required so that an attempt can be made to retrieve hospital records pertaining to the Veteran's initial medical treatment in Vietnam and Japan for the gunshot wound he incurred in combat in Vietnam in March 1968. As noted by the Veteran's representative in April 2013, these hospital records are not in the claims file. The record indicates that an attempt to retrieve hospital records was made in the late 1960s, following the Veteran's original claim to service connection for the gunshot wound. A Request for Information (VA Form 07-3101) dated in October 1969 indicated that VA requested medical records pertaining to treatment the Veteran received in March 1968 at "Cp. Evans N. Phue VE Hospital", at "Phu Bie M. Hosp.", at Cam Ranh Bay GH", each in Vietnam, and at "Tachikana AE Hosp" in Japan. The record indicates that, eventually, service treatment records (STRs) were included in the claims file. However, the STRs are silent regarding the nature and severity of the Veteran's gunshot wound other than mentioning that he had a gunshot wound to the area of his left shoulder. Moreover, the STRs provided in the record do not include any hospital treatment records reflecting the treatment the Veteran received for his gunshot wound. As such, there is no evidence of record indicating the nature of the original injury. The Veteran's MG I disability has been rated as moderately severe (i.e., 20 percent disabling) under Diagnostic Code (DC) 5301 of 38 C.F.R. § 4.73. Understanding the nature of the original injury is crucial in determining whether the higher rating (for severe disability as 30 percent disabling) is warranted under DC 5301, and under 38 C.F.R. § 4.56, which addresses muscle injuries generally. To determine whether a rating for severe disability has been warranted under DC 5301, VA must assess whether the original gunshot wound involved through and through or deep penetrating wound due to high-velocity missile, or large or multiple low velocity missiles, or with shattering bone fracture or open comminuted fracture with extensive debridement, prolonged infection, tendon damage, sloughing of soft parts, and intermuscular binding and scarring. Evidence of severe disability would involve ragged, depressed and adherent scars; loss of deep fascia or muscle substance or soft flabby muscles in the wound area; and severe impairment on tests of strength, endurance, or coordinated movements compared with the corresponding muscles of the uninjured side. 38 C.F.R. § 4.56(d)(4). Some of these criteria are addressed by more recent medical evidence assessing the current nature of the MG I disability. However, a review of hospital treatment records detailing the exact nature of the original injury would be of assistance in thoroughly addressing the Veteran's claim under 38 C.F.R. §§ 4.56, 4.73. Another effort to retrieve these records should be made therefore. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should attempt to include in the claims file hospital records reflecting medical treatment the Veteran received for his gunshot wound in March 1968 at the following medical facilities - in Vietnam at "Cp. Evans N. Phue VE Hospital", "Phu Bie M. Hosp.", and at Cam Ranh Bay GH", and in Japan at "Tachikana AE Hosp." 2. If hospital records pertaining to the Veteran's March 1968 treatment cannot be located, the claims file should be documented accordingly, and claim should be returned to the Board following issuance of a new SSOC. 3. If hospital records pertaining to the Veteran's March 1968 treatment are included in the claims file, the Veteran should be provided with another VA compensation examination. In such case, the claims folder must be forwarded to an examiner with the appropriate expertise in order to obtain opinions as to the disability associated with the residuals of shell fragment wound to MG I. The claims folder must be made available to and be reviewed by the examiner in conjunction with the examination. The examiner should conduct all necessary diagnostic testing and evaluation needed to make the following determinations: a. With regard to MG I, indicate whether the Veteran experienced a through and through or deep penetrating wound; a shattering bone fracture or open comminuted fracture with extensive debridement, prolonged infection, sloughing of soft parts, tendon damage, or intermuscular binding and scarring; or ragged, depressed and adherent scars, loss of deep fascia or muscle substance, or soft flabby muscles in the wound area. b. Indicate whether the injury to MG I is currently productive of severe disability, i.e., severe impairment on tests of strength, endurance, or coordinated movements compared with the corresponding muscles of the uninjured side; x-ray evidence of minute multiple scattered foreign bodies; adhesion of the scar; diminished muscle excitability on electrodiagnostic tests; visible or measurable atrophy; adaptive contraction of an opposing group of muscles; atrophy of muscle groups not in the track of the missile; or induration or atrophy of an entire muscle following simple piercing by a projectile. A complete rationale should be provided for any opinion expressed. If any opinion cannot be provided without resort to speculation, the examiner should so state and provide a rationale for why the opinion would require resort to speculation. 4. The RO/AMC should undertake any other development it determines to be warranted. 5. Then, the RO/AMC should readjudicate the issue on appeal. If the benefits sought on appeal are not granted to the Veteran's satisfaction, a SSOC should be furnished to the Veteran and his Representative, and they should be afforded the requisite opportunity to respond. Thereafter, if indicated, the case should be returned to the Board for further appellate action. 6. With regard to the issues concerning a higher initial rating for CAD, and an earlier effective date for SMC, issue a SOC based on the Veteran's NOD memorialized in his detailed correspondence to VA between October 2011 and January 2012. The Veteran must be provided with information about his rights and responsibilities in perfecting an appeal on this matter and be given an opportunity to respond. 7. Only if the Veteran responds by submitting a timely substantive appeal, return the issues regarding the higher initial rating for CAD and the earlier effective date for SMC to the Board for further review. 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). These claims 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). _________________________________________________ MICHAEL A. PAPPAS 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).