Citation Nr: 1322376 Decision Date: 07/12/13 Archive Date: 07/18/13 DOCKET NO. 08-38 959 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to an increased rating for residuals of a left calf fragment wound with retained foreign bodies and Muscle Group XI involvement. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD D. Cherry, Counsel INTRODUCTION The Veteran served on active duty from February 1966 to February 1968. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In August 2012, the Board remanded the claim for further development. 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 In August 2012, the Board remanded the claim for an examination of the left calf fragment wound to include Muscle XI. The Veteran underwent an examination in January 2013 but the examiner did not examine the left calf. Instead, the doctor examined the left thigh in general and Muscle Group XIII in particular. Additionally, as the Board noted in its August 2012 remand, the record is unclear regarding the current disability rating assigned to the Veteran's left calf fragment wound disability. The September 2009 rating decision on appeal continued a noncompensable evaluation for this disability, but the code sheet accompanying a January 2011 rating decision indicates that the left calf disability evaluation was increased to 10 percent effective July 13, 2009. The January 2011 rating decision contains no analysis discussing the left calf disability, and the issue is not listed on the first page of the decision. Furthermore, in a March 2012 supplemental statement of the case, the RO found that a compensable rating was not warranted for the left calf disability. In August 2012, the Board directed that the Agency of Original Jurisdiction clarify the current evaluation assigned the service-connected left calf fragment wound. The AMC did not clarify the current evaluation assigned the service-connected left calf fragment wound. In light of the above, the AMC did not comply with the directives of the Board's August 2012 remand. Stegall v. West, 11 Vet. App. 268 (1998). In addition, the January 2013 VA examination showed an injury to Muscle Group XIII with X-rays revealing tiny metallic foreign bodies in the tissues surrounding the knee, including Muscle Group XIII. Hence, a VA examination must address any muscle groups injured due to a service incurred gunshot wound, the nature of any current impairment therefrom, and any other associated left lower extremity musculoskeletal and/or neurological disorders due to the gunshot wound. The Veteran was last asked to identify treatment for his left calf muscle injury in July 2009. The AMC should ask the appellant to identify all treatment for left lower extremity disabilities. Accordingly, the case is REMANDED for the following action: 1. The AMC should ask the appellant to identify all treatment for any left lower extremity gunshot wound residual. Thereafter, the AMC should associate any identified records with the appellant's claims file. If the RO cannot locate such records, the RO must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The RO must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims. The claimant must then be given an opportunity to respond. 2. Thereafter, schedule the Veteran for a VA muscle examination to determine the nature and severity of his left calf disability. The examiner must be provided access to and must review the claims file, Virtual VA and a copy of this remand in conjunction with the examination. Based on a physical examination of the Veteran's left lower extremity, to include Muscle Group XI, the examiner is to determine: a) The complete history of the nature of the gunshot wound sustained in-service, the extent of all injuries to include the location of any/all entrance and exit wounds, the presence or absence of retained foreign bodies, and whether the missile injury was a deep penetrating wound involving muscle tissue; b) The degree of any left lower extremity gunshot wound in all affected muscle groups, to include whether there is more than one muscle group involved in the same anatomical region, and the functions affected; c) Whether the disability associated with each affected muscle group would be considered slight, moderate, moderately severe, or severe. The examiner must comment on the presence or absence of the cardinal signs and symptoms of muscle disability, including loss of power, weakness, lowered threshold of fatigue, fatigue pain, impairment of coordination, and uncertainty of movement; d) The examiner must measure any gunshot wound scars and findings pertaining to the presence or absence of soft tissue damage, frequent loss of covering of skin over any scar, pain on examination, and whether any such scar (of themselves) result in limitation of motion of an affected part; e) Identify any musculoskeletal and neurological disabilities resulting from the left lower extremity gunshot wound; f) If the examiner does not find an injury to Muscle Group XIII, the examiner should reconcile all findings with the January 2013 VA examination findings. 3. The Veteran is to be notified that it is his responsibility to report for the scheduled 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). 4. After the development requested, the AMC should review the examination report to ensure that it is in complete compliance with the directives of this REMAND. If the report is deficient in any manner, the AMC must implement corrective procedures at once. 5. Thereafter, the AMC must readjudicate the issue on appeal, to include clarification of the current rating assigned the Veteran's left calf gunshot wound residuals. The AMC must consider the claim under 38 C.F.R. § 3.321 (2012). If the benefit is not granted, the Veteran should be furnished with a supplemental statement of the case, with a copy to his representative, and afforded an opportunity to respond. 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). _________________________________________________ DEREK R. BROWN 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).