Citation Nr: 1324731 Decision Date: 08/02/13 Archive Date: 08/13/13 DOCKET NO. 01-07 628 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to an increased rating for residuals of multiple shell fragment wounds, with muscle group involvement to the right buttock, currently evaluated as 40 percent disabling. 2. Entitlement to an increased rating for residuals of multiple fragment wounds to the right leg, manifested by muscle involvement and multiple foreign bodies, currently evaluated as 20 percent disabling. REPRESENTATION Appellant represented by: Daniel Krasnegor, Attorney-at-law ATTORNEY FOR THE BOARD Siobhan Brogdon, Counsel INTRODUCTION The Veteran served on active duty from May 1943 to December 1945. This appeal comes before the Department of Veterans Affairs (VA) Board of Veterans Appeals (Board) from a February 2001 decision of the New York, New York, Regional Office (RO). In November 2004, the Board denied the Veteran's claims. He appealed that decision to the United States Court of Appeals for Veterans Claims (Court). Thereafter, pursuant to a Joint Motion for Remand, the Court vacated the Board's decision and remanded the claim in December 2005 for further action. The case was subsequently remanded in September 2006, and returned to the Board in June 2012. The Board denied the Veteran's claims in a September 2012 decision. In January 2013, the Appellant filed a motion to vacate the September 2012 Board decision on the basis that the Veteran had been denied due process. In May 2013, the Board vacated the September 2012 decision. Following review of the record, 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. 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). REMAND In seeking to vacate the Board's September 2012 decision, the Veteran and his representative asserted that the Board was remiss in the development of the evidence. They argued that that failure was prejudicial to the case and ultimately deprived the appellant of due process. Among other things, they contended that VA examinations conducted since 2008 have been inconsistent and inadequate. Among other things, it was averred that the Veteran's wound was described as through and through on examination in June and July 2008, but that the VA same examiner later stated that it was not through and through. They note that on some examinations tissue loss is observed but that on others no tissue loss was found. The appellant and his representative also asserted that in November 2010, the VA examiner failed to comply with a prior Board remand, and that the examination was inadequate. In this regard, it was noted that the examiner failed to provide complete range of motion studies, that the examiner did not indicate the extent of functional loss occasioned by pain, and did not adequately discuss any limitation of motion due to weakened movement, excess fatigability, incoordination, or painful motion or pain with use. It was related that the examiner failed to record when pain began during the arc of motion. The Veteran and his representative argue that two ensuing supplementary opinions did not satisfactorily resolve these deficiencies. In July 2013, the appellant and his representative essentially assert that in view of the above, the evidence is deficient to assess the severity of the service-connected shell fragment wounds of the right leg and buttock. It is found that as a result of the inadequacies of all of the examinations and addendums since September 2006, the evidence may not be relied upon to render a decision. It is requested that the Board remand the claim to the RO to obtain a new examination that complies with all of the rating criteria in assessing the degree of disability. The Board will accede to the request for a new examination. The Board would point out that the appellant also takes issue with the fact that none of the VA examinations in the past were conducted during a period of flare-up and that no attempt has been made to assess the functional limitations by providing an examination during a period of flare-up. Unfortunately, VA staff would not be able to predict when the Veteran has a flare-up to schedule him for an examination. However, since the appellant is able to obtain VA medical attention for his service-connected disabilities, he is advised to seek treatment during flare-ups so that the full extent of his symptoms may be ascertained. In the alternative, the appellant is free to submit medical reports, or request that VA obtain evidence of flare-ups from other clinical providers after proper authorization is received. Finally, review of the record discloses that the Veteran has received regular VA outpatient treatment for various complaints and disorders in the past. The most recent records date through January 2012. Such records may document the presence of flare-ups and other symptoms associated with the service-connected disabilities on appeal. Therefore, given that VA has notice of the potential existence of additional records, they must be retrieved and associated with the other evidence on file. Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, VA outpatient records dating from February 2012 through the present must be requested and associated with the claims folder. Accordingly, the case is REMANDED for the following actions: 1. The RO must attempt to retrieve all pertinent VA records that have not previously been added to the record since February 2012. All attempts to secure this evidence must be documented in the claims file. If the RO cannot locate these records, it must document the attempts that were made to locate them, and explain in writing why further attempts to locate or secure them would be futile. The RO must then: (a) notify the claimant of the specific records that it is unable to retrieve; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claim. The Veteran must then be given an opportunity to respond. 2. Contact the Veteran and request that he furnish authorization identifying any and all healthcare providers who have treated him right thigh and buttock shell fragment would residuals since 2001. VA should then request any clinical records which have not been previously requested, and associate them with the claims folder. Duplicate records should not be added to either the claims folder or the appellant's Virtual VA file. If the RO cannot locate these records, it must document the attempts that were made to locate them, and explain in writing why further attempts to locate or secure them would be futile. The RO must then: (a) notify the claimant of the specific records that it is unable to retrieve; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claim. The Veteran must then be given an opportunity to respond. 3. Thereafter, schedule the Veteran for a VA compensation examination of his right buttock and right leg shell fragment wounds by an appropriate physician, preferably by one who has not seen him previously. Access to the Veteran's claims folder, Virtual VA file, and a copy of this remand must be made available to the physician. All appropriate tests and studies should be conducted and clinical findings should be reported in detail. Following completion of an orthopedic examination, and in accordance with the most recent worksheet for rating shell fragment wounds the physician examiner is to provide a detailed account of the Veteran's pertinent medical history and current complaints, as well as the extent of any residuals associated with shell fragment wounds of the right buttock and any associated impairment to Muscle Group XVII, and shell fragment wounds to the right leg with any associated impairment to Muscle Group XII. The physician examiner must definitively state whether any wound is through and through and the extent to which there is any scar tissue and tissue loss. The extent of any muscle impairment in both the right buttock and right leg must be described in terms of whether it is moderate, moderately severe, or severe. The physician examiner must address the full extent of any limitation of any right hip, knee and/or ankle motion due to the shell fragment wound residuals. The examiner must note whether motion is painful and at what point any pain begins during the arc of motion. The nature of any functional loss associated with pain, weakened movement, excess fatigability, swelling, deformity, or atrophy of disuse must be discussed. The physician examiner should also address factors associated with disability, such as objective indications of pain on pressure or manipulation. The examiner must address whether the Veteran experiences flare-ups associated with shell fragment wounds of the right buttock and any associated impairment to Muscle Group XVII and shell fragment wounds to the right leg. To the extent possible, any additional functional loss or limitation of motion attributable to such flare-ups should be described in detail. The examiner must carefully distinguish and differentiate any pathology caused by factors other than the shell fragment wounds. 4. The Veteran is notified that it is his responsibility to report for VA examination, to cooperate in the development of the claim, and that 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). 5. After the development requested has been completed, the RO should review the examination report to ensure that it complies with the directives of this REMAND. If the report is insufficient or deficient in any manner, corrective procedures must be implemented before return to the Board. 6. After taking any further development deemed appropriate, re-adjudicate the issues on appeal. If any benefit sought is not granted, provide the appellant and his representative a supplemental statement of the case and afford them an opportunity to respond before the case is returned to the Board. The appellant 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). _________________________________________________ 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).