Citation Nr: 1320787 Decision Date: 06/27/13 Archive Date: 07/05/13 DOCKET NO. 10-34 199 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial compensable disability rating for scar, residuals of shrapnel injury to right knee. 2. Entitlement to an initial compensable disability rating for scar, residuals of shrapnel injury to right buttock. 3. Entitlement to an initial compensable disability rating for scar, residuals of shrapnel injury to right thigh. REPRESENTATION Appellant represented by: John S. Berry, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Orfanoudis, Counsel INTRODUCTION The Veteran had active service from August 1969 to April 1972. His decorations include the Purple Heart Medal and the Combat Infantryman Badge. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO), in St. Petersburg, Florida. This matter was previously before the Board in April 2012 at which time the issues captioned above were denied. The Veteran appealed the denials to the United States Court of Appeals for Veterans Claims (Court). In September 2012, a Joint Motion for Partial Remand was brought before the Court, and in an Order dated that same month, the Court vacated the April 2012 Board decision to the extent that it had denied increased disability ratings for the service-connected scars, residuals shrapnel wounds of the right knee, right buttock, and right thigh, and remanded the case to the Board for readjudication consistent with its Order. The case is now returned to the Board. The Board notes that the April 2012 Board decision also remanded the issues of entitlement to an initial disability rating in excess of 10 percent for right knee lateral compartment arthritis, and service connection for a low back disability. These issues have been remanded for additional development and have not yet been returned to the Board. As such, they will not be addressed further in this decision. In the April 2012 Board decision, the issue of service connection for multiple scars (scars other than the ones that are already service connected) was said to have been raised by the record and was referred to the Agency of Original Jurisdiction (AOJ) for appropriate action. Additionally, in correspondence dated in April 2012, the Veteran raised the issues of service connection for acid reflux, to include as secondary to the service-connected anxiety disorder, with depressive disorder; service connection for erectile dysfunction, to include as secondary to the service-connected anxiety disorder, with depressive disorder; service connection for neuropathy of the right and left feet; and an increased disability rating for the service-connected anxiety disorder, with depressive disorder. These issues have been raised by the record, but have not been adjudicated by the AOJ. Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND After carefully considering this matter, and for reasons expressed immediately below, this case must be remanded for further development of the record. The Board regrets the delay associated with this remand, however, it is necessary to ensure that the Veteran is accorded full compliance with the statutory duty to assist. According to the September June 2012 Joint Motion for Partial Remand, the Board did not provide an adequate statement of reasons or bases for its finding that the Veteran's scars were not painful. The Joint Motion for Partial Remand further indicated that a May 2009 VA examination report upon which the Board had relied in its April 2012 decision was not clear as to whether the Veteran's service-connected scars were painful on examination. As such, this opinion is deemed inadequate, and a remand for an additional VA examination by an examiner that has not previously examined the Veteran is necessary prior to deciding these claims. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (an opinion is considered adequate when it is based on consideration of an appellant's medical history and examinations and describes the disability in sufficient detail so the Board's evaluation of the claimed disability is a fully informed one). See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes the effort to provide an examination for a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided); see also Hicks v. Brown, 8 Vet. App. 417, 422 (1995) (inadequate medical evaluation frustrates judicial review). Moreover, updated VA scar examinations are needed as it has been more than four years since the most recent evaluation. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995); Allday v. Brown, 7 Vet. App. 517, 526 (1995) (where the record does not adequately reveal current state of claimant's disability, fulfillment of statutory duty to assist requires a contemporaneous medical examination - particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since the previous examination); Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (the Board should have ordered a contemporaneous examination of the Veteran because a 23-month old examination was too remote in time to adequately support the decision in an appeal for an increased rating). Additionally, in May 2013, the Board received additional medical evidence from the Veteran that was not accompanied by a waiver of consideration by the AOJ. In accompanying correspondence, the Veteran's representative specifically requested that the claims be remanded so that the RO may evaluate the newly received medical evidence. As such, on remand, the additional evidence must be reviewed by the AOJ and a Supplemental Statement of the Case must be provided to the Veteran addressing the newly received evidence. See Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003) (absent a waiver, the Board may not adjudicate a claim based on evidence which has not been previously considered by the AOJ); 38 C.F.R. §§ 19.37 , 20.1304 (2012). Finally, as this matter is being remanded for the reasons set forth above, the claims file should be updated to include ongoing VA treatment records related to the Veteran's asserted disabilities. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. The RO shall attempt to obtain any ongoing VA medical treatment records pertaining to the Veteran's residual shrapnel wound scars of the right knee, right buttock, and right thigh that have not yet been associated with the claims file. Any additional pertinent records identified by the Veteran during the course of this remand should also be obtained, following the receipt of any necessary authorizations from the Veteran, and associated with the claims file. 2. The RO shall afford the Veteran a new VA scars examination to assess the precise nature and severity of his service-connected residual shrapnel wound scars of the right knee, right buttock, and right thigh. The examination must be conducted by an examiner that has not previously examined the Veteran. The entire claims file shall be made available to and reviewed by the examiner. All tests deemed necessary by the examiner must be performed and all findings reported. With respect to the each residual shrapnel wound scar, the examiner must provide a detailed description of the scar of each wound, to include, but not limited to, the following: (a) the size of the scars and scar areas in square inches or square centimeters; (b) whether any scar is painful; (c) whether any scar is superficial (not associated with underlying soft tissue damage); (d) whether any scar is deep (associated with underlying soft tissue damage); (e) whether any scar is unstable (with frequent loss of covering of skin over the scar); (f) whether any scar is well-healed, tender, adherent, and/or ulcerated; and (g) whether any scar residuals cause limited motion or other limitation of function of an affected bodily part, and if so, the examiner must describe in detail the limitation(s), and extent and severity thereof. Unretouched color photographs of the involved areas shall be included in the report. With respect to the each residual shrapnel wound scar, the examiner must specifically indicate whether the Veteran has an injury to any respective muscle groups, and if so, the examiner must include a discussion as to whether the muscle group(s) affected is manifested by slight, moderate, moderately severe, or severe disability. With respect to the each residual shrapnel wound scar, the examiner must specifically identify any residual neurological symptoms or impairment, specifying the nerve(s) involved and the severity of any such symptoms or impairment. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports of symptomatology, he or she must provide a reason for doing so. The examiner is also asked to comment on the impact of the claimed increase in severity of the Veteran's disabilities, if any, on the his employment and activities of daily life. A complete rationale for any opinion expressed shall be provided. 3. The RO will then review the Veteran's claims file and ensure that the foregoing development actions have been conducted and completed in full, and that no other notification or development action, in addition to those directed above, is required. If further action is required, it should be undertaken prior to further claims adjudication. 4. The RO will then readjudicate the Veteran's claims, to include consideration of the medical evidence received by the Board in April 2013. If the benefits sought on appeal remain denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case. An appropriate period of time should be allowed for response. Thereafter, if appropriate, the case is to be returned to the Board, following applicable appellate procedure. The Veteran need take no action until he is so informed. He has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). The purposes of this remand are to obtain additional information and comply with all due process considerations. No inference should be drawn regarding the final disposition of this claim as a result of this action. 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). _________________________________________________ JOAQUIN AGUAYO-PERELES 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).