Citation Nr: 1319848 Decision Date: 06/19/13 Archive Date: 06/27/13 DOCKET NO. 09-24 468 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to a disability rating higher than 10 percent for residuals of a shell fragment wound of the left hip. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Cheryl E. Handy, Associate Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from July 2003 to December 2003 and from August 2004 to August 2005, including service in Southwest Asia for which he was awarded the Purple Heart. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in January 2007 of the Department of Veterans Affairs (VA) Regional Office (RO) in Togus, Maine. The claim is now in the jurisdiction of the Newark, New Jersey RO. In September 2011, the Veteran appeared at a Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is in the claims file. This case was previously before the Board in May 2012 and February 2013, when it was remanded for further development, to include providing the Veteran additional VA examinations. As the requested development has been completed, no further action to ensure compliance with those remand directives is required. Stegall v. West, 11 Vet. App. 268 (1998). The issue of entitlement to an increased disability rating for posttraumatic stress disorder (PTSD) was raised by the Veteran at the September 2011 Board hearing and referred to the RO as part of the May 2012 and February 2013 Remands. The issue has still not been adjudicated by the RO and the Board does not have jurisdiction over it. It is once again referred to the RO 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 In February 2013, this matter was remanded to the RO with instructions to schedule the Veteran for an examination to determine the nature and severity of the current residuals of the left hip shell fragment wound. Because several examinations, as well as treatment records, indicate likely muscle group involvement but did not specify the muscles involved, the examination was to specifically include considerations related to muscle group injury. The Veteran was scheduled for an examination in April 2013 but did not report for that appointment. While the RO complied fully with the February 2013 remand instructions, because of the complex medical issues involved and the importance of examination findings to a proper disability rating, the Board finds that another attempt at scheduling an examination is in order. Inasmuch as the Veteran failed to attend the last scheduled examination or provide good cause for his failure to appear additional steps should be taken. Any and all correspondence related to the scheduling of the examination should be printed and added to the claims file for Board review. In addition, the Veteran should be advised of the consequences of failure to attend examination as set forth in 38 C.F.R. § 3.655. Accordingly, the case is REMANDED for the following action: 1. Afford the Veteran muscle examination by an appropriate examiner to determine if the residuals of the left hip shell fragment wound include manifestations of a muscle group injury separate from and in addition to the reduced range of motion for which he is now rated as 10 percent disabled. The examiner is asked to specifically address the treatment records reflecting muscle pain and immobility on specific motions and to address the likely effects, if any, of the current location of the retained foreign bodies. All indicated diagnostic tests should be performed. If a muscle group injury is diagnosed, the examiner is asked to identify the specific muscle groups involved and the severity of any muscle injuries (i.e., slight, moderate, moderately severe, or severe). The examiner should be provided a copy of 38 C.F.R. § 4.56 and should consider the presence or absence of objective findings referenced therein. Indeed, in assigning a severity level to any muscle injury found, the examiner should specify which factors outlined in 38 C.F.R. § 4.56 factored in such decision. The examiner should provide the rationale for any opinions rendered. A copy of the claims file should be provided to the examiner for review. 2. Notify the Veteran that it is his responsibility to report for the examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for the aforementioned examination, obtain documentation showing that notice scheduling the examination was sent to the last known address of record, and indicate whether any notice that was sent was returned as undeliverable. 3. On completion of the foregoing, the claim should be adjudicated. If the decision remains adverse to the Veteran, then provide him a supplemental statement of the case and return the case to the Board. 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). The Veteran is advised to appear and participate in any scheduled VA examination, as failure to do so may result in denial of the claim. See 38 C.F.R. § 3.655 (2012). 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). _________________________________________________ Eric S. Leboff 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).