Citation Nr: 1327685 Decision Date: 08/29/13 Archive Date: 09/05/13 DOCKET NO. 12-09 335 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to a disability rating in excess of 10 percent for the residuals of a shell fragment wound (SFW) to the right knee with multiple cutaneous scars, retained foreign bodies, and arthritis, to include whether separate disability ratings are warranted for scars, arthritis, and muscle injury. REPRESENTATION Appellant represented by: Missouri Veterans Commission ATTORNEY FOR THE BOARD D. Havelka, Counsel INTRODUCTION The Veteran served on active duty from April 1967 to February 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which granted an increased rating of 10 percent for the Veteran's service-connected residuals of a SFW to the right knee. This appeal was processed in part using the Virtual VA paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. This appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND The Veteran claims that the service-connected residuals of a SFW to the right knee are more severe than presently rated. Specifically, he claims he has right knee symptoms of pain, swelling, popping, and difficulty with prolonged walking and standing. He further asserts that his knee symptoms have impacted his ability to maintain employment. The record reasonably raises the question of whether the Veteran is unemployable due to his service-connected disabilities. The issue of entitlement to a total disability for compensation based on individual unemployability (TDIU) is part and parcel of the increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Accordingly, this issue requires adjudication on remand. The Veteran's service-connected right knee disability was rated at a noncompensable (0%) disability rating for scars effective since 1969. The Veteran filed his claim for an increased rating in 2009, and as the result of a March 2009 Compensation and Pension examination he was diagnosed with arthritis of the right knee and assigned a 10 percent disability rating. The RO merely added arthritis to the narrative description of the disability and added Diagnostic Code 5313 to the rating sheet. However, Diagnostic Code 5313 contemplates muscle injury to muscle group XIII, not arthritis. See 38 C.F.R. § 4.73, Diagnostic Code 5313. The Veteran's documented knee symptoms of arthritis, limitation of motion and pain on motion, are more appropriately rated under Diagnostic Code 5003 for arthritis. See 38 C.F.R. § 3.71a, Diagnostic Codes 5003, 5010, 5257, 5260, 5261. The Veteran asserts that he warrants separate disability ratings for his scars, and joint symptoms. Generally, all disabilities, including those arising from a single disease entity, are rated separately with the resulting ratings being combined. 38 C.F.R. § 4.25. Pyramiding, that is the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran's service-connected disabilities. 38 C.F.R. § 4.14. However, it is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes. The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994) (where a veteran with a service-connected facial injury sought an increased rating, the veteran's disability was to be properly assigned compensable ratings under separate codes for disfigurement, tender and painful scars and muscle injury). In the present case separate disability ratings for the service-connected residuals of the SFW to the right knee appear warranted. Generally, wounds are rated under the Diagnostic Codes for muscle injuries. See 38 C.F.R. § 4.73, Diagnostic Code 5313. In the instant case, the Veteran has not been afforded a VA muscle injury Compensation and Pension examination. This should be done. When the medical evidence is inadequate, VA must supplement the record by seeking an advisory opinion or ordering another medical examination. Colvin v. Derwinski, 1 Vet. App. 171 (1991) and Hatlestad v. Derwinski, 3 Vet. App. 213 (1992). Accordingly, the case is REMANDED for the following action: 1. Ensure complete copies of the Veteran's VA treatment records are made part of the record. 2. The Veteran should be afforded the appropriate VA Compensation and Pension examination for Muscle Injuries to determine the current severity of his service-connected residuals of a SFW to the right knee. Make the claims file and a copy of this remand available to the VA examiner in conjunction with the examination. The examiner must also review all pertinent treatment records contained in the Veteran's Virtual VA e-folder. The VA examiner must report all pertinent symptomatology and findings in detail. Any indicated special diagnostic tests that are deemed necessary for an accurate assessment must be conducted. Any further studies deemed relevant by the examiner must also be conducted. The examining physician should provide complete rationale for all conclusions reached. 3. Notify the Veteran that it is his responsibility to report for any examination scheduled, and to cooperate in the development of his claim. Failure to report for a VA examination without good cause may result in denial of the claim. 38 C.F.R. §§ 3.158, 3.655. A copy of the notification letter sent to the Veteran advising him of the time, date, and location of the scheduled VA examinations must be included in the claims folder and must reflect that it was sent to his last known address of record. If he fails to report to the examinations, the claims folder must indicate whether the notification letter was returned as undeliverable. 4. The RO must 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 RO must implement corrective procedures at once. 5. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken above, the claim for an increased rating for the residuals of a SFW of the right knee on appeal must be readjudicated. Specifically, adjudicate and assign separate disability ratings for the Veteran's right knee scars, arthritis, and muscle injury if warranted. Also, consider whether TDIU is warranted. See Rice v. Shinseki, 22 Vet. App. 447 (2009). If any benefit on appeal remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. 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). 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). _________________________________________________ L. M. BARNARD Acting 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).