Citation Nr: 1323661	
Decision Date: 07/24/13    Archive Date: 08/01/13

DOCKET NO.  07-40 000	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) 
in Boston, Massachusetts


THE ISSUES

1.  Entitlement to an increased disability rating greater than 10 percent for the service-connected residuals of a shell fragment wound to the left upper extremity with retained foreign body.    

2.  Entitlement to a total disability rating based on individual unemployability (TDIU) by reason of service-connected disability.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Paul S. Rubin, Counsel


INTRODUCTION

The Veteran had active service in the U.S. Marine Corps from September 1967 to July 1970.  His awards and decorations include the Purple Heart Medal for sustaining combat wounds during his service and the Combat Action Ribbon.  

The increased rating issue initially came to the Board of Veterans' Appeals (Board) on appeal from a January 2007 rating decision issued by the RO.

In addition, during the course of the appeal, a request for a TDIU rating was reasonably raised.  See 38 C.F.R. § 3.156(b); Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009) (a request for a TDIU, whether expressly raised by Veteran or reasonably raised by the record, is not a separate "claim" for benefits, but rather, can be part and parcel of a claim for an initial or increased rating for a disability).  See also Mayhue v. Shinseki, 24 Vet. App. 273, 280-282 (2011); Norris v. West, 12 Vet. App. 413, 421 (1999); Roberson v. West, 251 F.3d 1378, 1384 (Fed. Cir. 2001).

In August 2010, the Veteran presented testimony at a hearing held at the RO before a Veteran's Law Judge who has since retired from the Board.  A transcript of that hearing is associated with the claims folder.  

In a July 2012 letter, the Veteran was offered another hearing before a different Veterans Law Judge who would ultimately decide this appeal.  In the same month, the Veteran responded that he did not want a new hearing with a different Veterans Law Judge.  See generally 38 U.S.C.A. § 7107(c) (West 2002); 38 C.F.R. § 20.707 (2012) (the Board member who conducts the hearing will participate in making the final determination of the claim).  Therefore, the Board will proceed to evaluate the appeal.    

In November 2010, March 2011, August 2012 and March 2013, the Board had remanded the case to the RO for additional development.  After completion of this development by the RO, the case has been returned to the Board for the purpose of appellate disposition.  

In November 2010, August 2012, and March 2013, the Board adjudicated other service connection and increased rating issues that were previously on appeal.  The Veteran has not appealed the Board's denial for any of these issues.  Therefore, these issues are no longer on appeal.  

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).

A review of the Virtual VA paperless claims processing system reveals additional VA treatment records dated from 2011 to 2012, which are pertinent to the present appeal.  However, these records were reviewed by the RO.  

The claim for a TDIU rating is being remanded to the RO via the Appeals Management Center (AMC), in Washington, DC.  VA will notify the Veteran if further action is required on his part.



FINDING OF FACT

The Veteran failed, without good cause, to report for an April 2013 VA muscle examination that was necessary to establish whether he was entitled to an increased rating for the service-connected left upper extremity shell fragment wound disability.  



CONCLUSION OF LAW

Because of the Veteran's failure, without good cause, to report for his scheduled April 2013 VA muscle examination needed to decide his increased rating claim, the Veteran's increased rating claim for his left upper extremity shell fragment wound disability must be denied by operation of law.   38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.655, 4.1-4.7, 4.21, 4.55, 4.56, 4.69, 4.73, Diagnostic Code 5305 (2012).  


REASONS AND BASES FOR FINDING AND CONCLUSION

VA's Duty to Notify and Assist

A review of the claims folder reveals compliance with the Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. § 5100 et seq.  See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  The duty to notify was accomplished by way of VCAA letters from the RO to the Veteran dated in July 2006, October 2006, November 2010, March 2011, July 2011, August 2012, March 2013, and May 2013.  

Those letters effectively satisfied the notification requirements of the VCAA consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) by: (1) informing him about the information and evidence not of record that was necessary to substantiate his increased rating claim; (2) informing him about the information and evidence the VA would seek to provide; (3) informing him about the information and evidence he was expected to provide.  See also Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). 

In addition, the July 2006, October 2006, and November 2010 letters from the RO further advised the Veteran of the elements of a disability rating and an effective date, which are assigned when service connection is awarded.  Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006); aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007).

Moreover, the November 2010 VCAA notice letter also advised the Veteran of the additional notice requirements for increased rating claims.  See Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008) (minimum notice requirements pursuant to VCAA for an increased rating claim), rev'd in part by Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (Fed. Cir. 2009) (interpreting 38 U.S.C.A. § 5103(a) as requiring generic claim-specific notice and rejecting Veteran-specific notice as to the effect on daily life and as to the assigned or cross-referenced diagnostic code under which the disability is rated).  

The outcome of these holdings is that VCAA notice for an increased rating claim does not have to be individually tailored to each Veteran's particular facts, but rather only a generic notice is required.  In this regard, the November 2010 VCAA letter was legally sufficient for the increased rating claim.  

With regard to timing, the Court and Federal Circuit Court have held that VCAA notice should be provided to a claimant before the initial unfavorable RO decision on a claim.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (Mayfield II); Pelegrini II, 18 Vet. App. at 120.  In the present case, the RO issued all required VCAA notice prior to the January 2007 rating decision on appeal.  Thus, there is no timing error.   

Accordingly, prejudicial error in the timing or content of VCAA notice has not been established as any defect was not outcome determinative.  See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency). 

With respect to the duty to assist, the RO has secured the Veteran's service treatment records (STRs), VA examinations, and VA inpatient and outpatient treatment records.  For his part, the Veteran has submitted personal statements, TDIU applications, hearing testimony, and representative argument.  The Veteran has not adequately identified any private medical evidence despite being informed to do so by way of the VCAA notice letters.  

The Veteran was also afforded an April 2011 VA joint examination and an earlier September 2006 VA joint and muscle examination to rate the current severity of his left upper extremity shell fragment wound disability.  

These VA examinations were not fully adequate.  Therefore, the Board in a March 2013 remand instructed the RO to schedule the Veteran for a new VA muscle examination to rate the current severity of his left upper extremity shell fragment wound disability.  The Veteran was scheduled for a VA muscle examination in April 2013, but he failed to report without good cause.  

As will discussed, when a VA examination is scheduled for a claim for an increased rating, and the Veteran fails to appear to this examination without good cause, and the examination was necessary to establish entitlement to the benefit sought, the provisions of 38 C.F.R. § 3.655 require that the claim for an increased rating be denied.  

With regard to the August 2010 hearing, in Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010), the Court held that the Veterans Law Judge who chairs a hearing should fulfill two duties to comply with 38 C.F.R. § 3.103(c)(2).  These duties consist of (1) fully explaining the issues pertinent to the claim(s) on appeal and (2) suggesting the submission of evidence that may have been overlooked.  See also 38 C.F.R. § 3.103(c)(2).  

At the August 2010 hearing, the Veterans Law Judge and representative for the Veteran outlined the increased rating issue on appeal and engaged in a colloquy as to substantiation of the increased rating claim.  There was a discussion with respect to the particular signs and symptoms the Veteran exhibited, for purposes of securing a higher rating for his left upper extremity.  

Moreover, during the course of the appeal, to the extent it can be argued that the hearing was not legally sufficient, the Veteran's representative has addressed the rating criteria necessary to establish an increased rating for a muscle injury to the left upper extremity.  See e.g., June 2012 Informal Hearing Presentation (IHP).  Moreover, the Veteran in July 2012 correspondence declined the opportunity for another hearing. 

Finally, the RO substantially complied with the Board's November 2010, March 2011, August 2012, and March 2013 remand directives.  Stegall v. West, 11 Vet. App. 268, 271 (1998).  See also D'Aries v. Peake, 22 Vet. App. 97 (2008) (finding that only substantial compliance, rather than strict compliance, with the terms of a Board engagement letter requesting a medical opinion is required).  

Specifically, pursuant to the remands, VA medical records were secured, additional VCAA notice was provided, an SSOC was issued by the RO in order to review additional evidence, the Veteran was provided instructions and authorization to identify any private medical evidence, and the Veteran was scheduled for VA examinations to rate the current severity of his left upper extremity disability.  The RO has substantially complied with the Board's instructions.  

In summary, the duty to assist has been met for the increased rating issue on appeal.  38 U.S.C.A. § 5103A (West 2002 & Supp. 2012). 


Governing Laws and Regulations for Increased Ratings

Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity.  Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  

The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment.  38 C.F.R. § 4.10.

If there is a question as to which evaluation to apply to the Veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating.  Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.  When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor.  38 C.F.R. § 4.3. 

Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases.  38 C.F.R. § 4.21.  

Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of his disability in reaching its decision.  Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991).

The left upper extremity issue on appeal arises from a claim for an increased rating received in June 2006.  The Veteran's entire history is reviewed when assigning a disability evaluation per 38 C.F.R. § 4.1.  However, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  

The Court has held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings.  See Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007).  That is to say, the Board must consider whether there have been times when his left upper extremity disability has been more severe than at others, and rate it accordingly. 

Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  

Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises.  It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses.  38 C.F.R. § 3.159(a)(1).  

Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience.  Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person.  38 C.F.R.§ 3.159(a)(2).  

In essence, lay testimony is competent when it regards the readily observable features or symptoms of injury or illness.  Layno v. Brown, 6 Vet. App. 465, 469 (1994).  


Analysis - Increased Rating for a Left Upper Extremity Disability

The service-connected left upper extremity disability (residuals of a shell fragment wound to the left upper arm) is rated as 10 percent disabling under 38 C.F.R. § 4.73, Diagnostic Code 5305, for impairment of Muscle Group V that is "moderate" in severity in the non-dominant arm.  

According to Diagnostic Code 5305, Muscle Group V involves the flexor muscles of the elbow: the biceps, brachialis, and brachioradialis.  Functions of Muscle Group V include elbow supination and flexion of the elbow.  

Under Diagnostic Code 5305, the current 10 percent rating requires impairment that is "moderate" in the non-dominant arm.  A 20 percent rating requires impairment that is "moderately severe" in the non-dominant arm, and the maximum 30 percent rating requires "severe" impairment in the non-dominant arm.  38 C.F.R. § 4.73. 

The April 2011 VA examiner confirmed that the Veteran is right handed, thus confirming that his left upper arm is on the minor, i.e., non-dominant arm.  See 38 C.F.R. § 4.69.

Evaluation of muscle injuries as slight, moderate, moderately severe, or severe, is based on the type of injury, the history and complaints of the injury, and objective findings.  38 C.F.R. § 4.56(d).  

For VA rating purposes, the cardinal signs and symptoms of muscle disability are loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination and uncertainty of movement. 38 C.F.R. § 4.56(c).  

A "moderate" muscle disability would result from a through and through or deep penetrating wound of short track from a single bullet, small shell or shrapnel fragment, without explosive effect of high velocity missile, residuals of debridement, or prolonged infection.  There should be service department records or other evidence of in-service treatment for the wound, reflecting consistent complaints of one or more of the cardinal signs and symptoms of muscle disability, particularly lowered threshold of fatigue after average use, affecting the particular functions controlled by the injured muscles.  Objectively, a moderate muscle disability would reveal small or linear entrance and (if present) exit scars, indicating short track of missile through muscle tissue, some loss of deep fascia or muscle substance or impairment of muscle tonus and loss of power or lowered threshold of fatigue when compared to the sound side.  38 C.F.R. § 4.56(d)(2).

A "moderately severe" muscle disability results from a through and through or deep penetrating wound by small high velocity missile or large low-velocity missile, with debridement, prolonged infection, or sloughing of soft parts, and intermuscular scarring.  Service or other records should show hospitalization for a prolonged period for treatment of wound, reflect consistent complaints of cardinal signs and symptoms of muscle disability, and, if present, reveal evidence of inability to keep up with work requirements.  Objective examination should reveal entrance and (if present) exit scars indicating track of missile through one or more muscle groups.  In addition, there are indications on palpation of loss of deep fascia, muscle substance, or normal firm resistance of muscles compared with sound side.  Tests of strength and endurance compared with sound side demonstrate positive evidence of impairment.  38 C.F.R. § 4.56(d)(3).    

A "severe" muscle disability occurs when there was a 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, or sloughing of soft parts, intermuscular binding and scarring.  Records should show hospitalization for a prolonged period for treatment of wound, consistent complaints of cardinal signs and symptoms of muscle disability worse than those shown for moderately severe muscle injuries, and, if present, evidence of inability to keep up with work requirements.  Objective evidence of severe muscle disability includes ragged, depressed, and adherent scars indicating wide damage to muscle groups in missile track.  Palpation shows loss of deep fascia or muscle substance, or soft flabby muscles in wound area.  Muscles swell and harden abnormally in contraction. Tests of strength, endurance, or coordinated movements compared with the corresponding muscles of the uninjured side indicate severe impairment of function. Additional signs of severe muscle disability, when present, include: X-ray evidence of minute multiple scattered foreign bodies indicating intermuscular trauma and explosive effect of the missile; adhesion of scar to one of the long bones, scapula, pelvic bones, sacrum or vertebrae, with epithelial sealing over the bone rather than true skin covering in an area where bone is normally protected by muscle; diminished muscle excitability to pulsed electrical current in 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; and induration or atrophy of an entire muscle following simple piercing by a projectile.  38 C.F.R. § 4.56(d)(4).

As held by the Court, the criteria for evaluating muscle injuries under 38 C.F.R. § 4.56 involves a "totality-of-the-circumstances test" with no single fact controlling the outcome of determination.  Tropf v. Nicholson, 20 Vet. App. 317, 324-25 (2006) (Tropf II).  In Robertson v. Brown, 5 Vet. App. 70 (1993), the Court held that a history of debridement did not mandate a specific rating under 38 C.F.R. § 4.56 absent evidence of symptomatic disability.  Similarly, in Tropf II, the Court held that the presence of retained metal fragments in muscle that was essentially asymptomatic did not entitle a claimant to a "moderate" compensable rating under 38 C.F.R. § 4.56 as a matter of law.  Tropf II, 20 Vet. App. at 324-25.

In the instant case, a VA muscle examination was scheduled for the Veteran in April 2013 to address the current severity of the service-connected left upper extremity shell fragment wound disability, currently rated as 10 percent disabling.  Unfortunately, the Veteran failed to appear to the April 2013 VA muscle examination.  

VA regulation provides that when a claimant fails to report, without good cause, for an examination scheduled in conjunction with a claim for an increase, the claim shall be denied.  38 C.F.R. § 3.655(b) (italics added for emphasis).  Good cause includes, but is not limited to, illness or hospitalization of the claimant, death of an immediate family member, etc.  Id.  

Also, as a threshold matter, the Court has emphasized that when a Veteran misses a scheduled VA examination, the Board must consider (1) whether the examination was necessary to establish entitlement to the benefit sought, and (2) whether the Veteran lacked good cause to miss the scheduled examination.  See 38 C.F.R. § 3.655(a) (2012); Turk v. Peake, 21 Vet. App. 565, 570 (2008).

In addition, as the Court stated in Saylock v. Derwinski, 3 Vet. App. 294, 395 (1992) (citing United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15 (1926)), "[p]rinciples of administrative regularity dictate a presumption that Government officials 'have properly fulfilled their official duties.'"  The Court has applied the presumption of regularity to various processes and procedures throughout the VA administrative process, including the RO's mailing of notice of a VA medical examination.  Jones v. West, 12 Vet. App. 98, 100-02 (1998).  

The presumption of regularity is not absolute; however, it may be overcome only by the submission of "clear evidence to the contrary."  Ashley v. Derwinski, 2 Vet. App. 307, 309 (1992).  A claimant's mere statement of nonreceipt is insufficient for that purpose.  See Butler v. Principi, 244 F.3d. 1337, 1340 (Fed. Cir. 2001). 

In Mindenhall v. Brown, 7 Vet. App. 271, 274 (1994), the Court noted that VA is required only to mail notice to the latest address of record in order for the presumption of regularity to attach.  In addition, according to VA regulation, notification for VA purposes is written notice sent to the claimant's last address of record.  38 C.F.R. § 3.1(q).  

However, when the claimant submits "clear evidence to the contrary" to the effect that VA's "regular" mailing practices were not followed or were not regular, the Secretary is no longer entitled to the benefit of the presumption of regularity.  Warfield v. Gober, 10 Vet. App. 483, 486 (1997).  

The burden then shifts to the Secretary to show that the document in question was mailed to the claimant.  Id.  But in the normal course of events, it is generally the Veteran's burden to keep VA apprised of his whereabouts.  If he does not do so, VA is not obligated to "turn up heaven and earth to find him."  Hyson v. Brown, 5 Vet. App. 262, 265 (1993).  

The Court has held because the regular practices of VA do not include maintaining a hard copy of the Veteran's notice of his/her scheduled VA examination, the absence of any such copy from the claims file cannot be used as evidence to demonstrate that that notice was not mailed or that the presumption of regularity does not apply.  Kyhn v. Shinseki, 24 Vet. App. 228 (2011) (per curiam).  

However, the Federal Circuit in Kyhn recently reversed this finding, holding that the presumption of regularity must be premised upon independent legal authority (e.g., a statute or regulation), rather than on evidentiary findings (e.g., an affidavit or testimony).   Kyhn v. Shinseki, --- F.3d ----, 2013 WL 1846562 (Fed. Cir. May 03, 2013) (NO. 2012-7003).  

In other words, in order for the presumption of regularity to apply, it must be based upon a statute, regulation, M21-MR provision, or other published guidance from VA.  

As pertinent to this matter, the M21-1MR provides that for notification of the time and place of a VA examination, the Veterans Health Administration (VHA) scheduling clinic or contract examiner normally advises the claimant of the time and place of the VA examination.  See VA Adjudication Procedure Manual, M21-1MR, Part III, Subpart iv, Chapter 3, Section B, Topic 14, Block d.  

As to good cause, the Board concludes that the Veteran failed to report without any good cause to the April 2013 VA muscle examination.  There is no indication or allegation that a notice letter was returned as undeliverable by the U.S. Postal Service or that the Veteran did not receive notice of the April 2013 VA examination.  

In fact, the home address where notice of the VA examinations was sent to matches the most recent home address provided by the Veteran.  See VA computer printouts dated March 2013 and April 2013.  In fact, in July 2012 the Veteran had previously responded to VA correspondence sent to the same home address, indicating that he did not want another hearing.  Thus, it is established that the Veteran has received and responded to past VA correspondence to this address.  

Although the actual notice letter for the date and time of the examination is not present in the claims folder, the presumption of regularity still applies per the M21-1MR provision discussed above regarding the VHA's normal practice of advising the claimant of the time and place of a VA examination.  There is no reason VHA would not have sent notice of the date, time, and place for the April 2013 VA muscle examination.  

The claims folder also does not contain a response or explanation from the Veteran himself with any good cause for his failure to appear to the April 2013 VA muscle examination.  The Veteran also failed to respond to the June 2013 SSOC advising him of his failure to appear to the April 2013 VA examination and the provisions of 38 C.F.R. § 3.655.  

The Veteran did not respond to a May 2013 VCAA notice letter advising him that he failed to appear to a recent VA examination.  In fact, this letter even offered him an opportunity to respond so that the VA examination could be rescheduled.  

The Veteran's representative in a July 2013 IHP speculates that the Veteran's service-connected PTSD disability may have caused symptoms such as losing time, spatial disorientation, unreliability, and social isolation, thus causing the Veteran to fail to appear to the scheduled VA examination.  The representative requests that VA reschedule the VA examination through a VA mental health coordinator.   

However, this is pure speculation on the part of the Veteran's representative.  Notably, for reasons the Board cannot explain, there is no indication from the Veteran's representative of any attempt to contact the Veteran to ascertain why he failed to appear to the April 2013 VA examination.  The Veteran's representative is simply guessing.  In addition, the Veteran's representative has not asserted that notice of the VA examination was sent to an incorrect address.  

The Veteran's representative has also requested a competency evaluation for the Veteran, but has submitted no probative evidence in support of this request.  Under VA regulations, a mentally incompetent person is one who, because of injury or disease, lacks the mental capacity to contract or to manage his or her own affairs, including disbursement of funds without limitation.  38 C.F.R. § 3.353(a) (2012).  

In contrast to the representative's assertion, the April 2011 VA psychological examiner observed that the Veteran was intact to person, time, and place.  There was no inappropriate behavior.  The Veteran was assessed as capable of managing his financial affairs, handling his money and paying his bills, prudently handling payments, and knowing the amounts of his monthly benefits and bills.  

This evidence is not indicative of someone who would not be able to comprehend notice of the time and place for a scheduled VA examination.  VA treatment records also support this conclusion.  

As to the necessity of the VA examination, the Board finds that, based on the present evidence of record, the April 2013 VA muscle examination was necessary because clarification was needed regarding which muscle groups are actually implicated by the service-connected disability.  

Otherwise, the Veteran's left upper extremity disability cannot be properly rated.  The Veteran's disability is currently rated under Muscle Group V.  Therefore, in order to clarify the muscles affected, and fairly assess the severity of the Veteran's disability, the Board in a March 2013 remand instructed the RO to schedule the Veteran for a VA muscle examination.   

The previous April 2011 VA examiner failed to assess the muscle injury.  The muscle group(s) affected were not identified, and the VA examiner did not offer findings relevant to the pertinent rating criteria for assessing muscle injuries.  The April 2011 VA examiner also failed to address the scar associated with the disability.  

Moreover, prior to this, a September 2006 VA examination was afforded to the Veteran.  The September 2006 VA examiner indicated that the muscle groups affected include Muscle Group I, Muscle Group III, and Muscle Group VI, and offered findings as to each group.  

The VA examiner did not find that Muscle Group V, the group under which the Veteran is currently rated, was involved.   No findings were rendered on Muscle Group V, which was odd because this was the originally service-connected muscle group.   

Simply stated, the entitlement to an increased rating above 10 percent that the Veteran's seeks cannot be established without a current, adequate VA examination.  So the Veteran's failure to report to a VA examination is fatal to his claim because the evidence currently of record simply is not adequate to establish an increased rating.  

Therefore, in accordance with VA regulation, the increased rating claim must be summarily denied.  See 38 C.F.R. § 3.655(b) (using "shall" to denote automatic, nondiscretionary, summary denial of the claim)




ORDER

The claim for an increased disability rating greater than 10 percent for the service-connected for residuals of a shell fragment wound to the left upper extremity with retained foreign body is denied.  


REMAND

Before addressing the merits of the issue of a TDIU rating, the Board finds that additional development of the evidence is required.

A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders.  Stegall v. West, 11 Vet. App. 268, 271 (1998).  Failure of the Board to ensure compliance with remand instructions constitutes error and warrants the vacating of a subsequent Board decision.  Id.  

The Court also recently clarified that only substantial compliance, and not strict compliance, with the terms of an opinion request are required.  D'Aries v. Peake, 22 Vet. App. 97 (2008).  

In any event, the Court routinely vacates Board decisions based on this situation.  Although, regrettably, it will result in additional delay in adjudicating this appeal, a remand is required to ensure compliance with the Board's previous November 2010 remand directives.  

Specifically, one of the instructions in the Board's previous November 2010 Board remand was for the RO to afford the Veteran a VA social and industrial survey referable to the claim for a TDIU claim, in order to ascertain the impact of his service-connected disabilities on his employability.  

There is no indication in the claims folder that the RO complied with this instruction.  Thus, a remand is required to ensure substantial compliance with the Board's previous November 2010 remand instructions.    

Accordingly, the TDIU issue is REMANDED for the following action:

1.  The RO should have the Veteran scheduled for a VA social and industrial survey (field examination) by a VA social worker or other appropriate personnel.  The social worker should elicit and set forth pertinent facts regarding the Veteran's medical history, education and employment history, day-to-day functioning, and social and industrial capacity.  A written copy of the report should be associated with the claims folder.

The survey should include a detailed employment history as well as the Veteran's current employment status, if any.  If the Veteran is not currently employed, he should be asked whether he has sought employment and, if so, with whom.  The social worker should elicit and set forth pertinent facts regarding the Veteran's medical history, education and employment history, and social and industrial capacity.  

With regard to his employability, the Veteran should be asked to provide the names and addresses of businesses where he has worked and or sought employment.  Any potential employment opportunities should be identified.  The claims folder must be made available to the social worker in conjunction with the survey as it contains important historical data. 

(B) The social worker should also address the Veteran's social interactions - to include those with family, friends, neighbors, etc.  Any participation in clubs, churches or other social activities should also be listed and discussed. 

(C) The VA social and industrial survey should offer the following opinion: Is it at least as likely as not (i.e., at least a 50 percent degree of probability) that the Veteran's service-connected PTSD (with substance abuse) and left upper arm disabilities, either individually or in concert, preclude the Veteran from obtaining and retaining substantially gainful employment?  (In rendering this determination, the Veteran's age and his nonservice-connected disabilities should not be considered, but consideration should be given to the Veteran's education, special training, and previous work experience).  A rationale for any opinion expressed must be provided. 

(D) The social worker is not limited to the foregoing instructions, but may seek initial or additional development in any survey area that would shed more light on the nature and severity of the Veteran's service-connected PTSD and left upper arm disability.

2.  The RO must review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full.  If any development is incomplete, appropriate corrective action is to be implemented.  If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing physician for corrective action.  See Stegall v. West, 11 Vet. App. 268, 271 (1998).

3.  After completing all indicated development to the extent possible, the RO should readjudicate the TDIU issue in light of all the evidence of record.  If any benefit sought on appeal remains denied, the RO should furnish a fully responsive Supplemental Statement of the Case (SSOC) to the Veteran and his representative and they should afforded a reasonable opportunity for response. 

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  Expedited handling is requested.)

Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition.  

No action is required of the Veteran until he is otherwise notified by the RO.  The Veteran has the right to submit additional evidence and argument on the matter or matters 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 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).



______________________________________________
STEPHEN L. WILKINS
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs