Citation Nr: 1328795	
Decision Date: 09/09/13    Archive Date: 09/17/13

DOCKET NO.  10-40 640	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in New York, New York


THE ISSUE

Entitlement to a rating in excess of 30 percent for residuals of gunshot wound (GSW) to the left buttocks and hip.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

S. Grabia, Counsel


INTRODUCTION

The Veteran served on active duty from January 1951 to January 1954. 

This matter comes before the Board of Veterans' Appeal (hereinafter Board) on appeal from an April 2009 rating decision, by the New York, New York, Regional Office (RO), which denied the Veteran's claim of entitlement to a rating in excess of 30 percent for gunshot wound to the left buttocks and hip, Muscle Groups XVI and XVII.  

In August 2012, the Veteran offered testimony at a hearing before the undersigned, sitting at the RO.  A transcript of that hearing is of record. 

In May 2013 the Board remanded this issue to the RO for additional development.  

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).

This case is being remanded to the RO via the Appeals Management Center (AMC), in Washington, DC.  


REMAND

Pursuant to the Board's May 2013 remand instructions, the Veteran attended a VA examination in June 2013.  That examination made minimal findings as to the scars associated with the service connected injury at issue, and apparently did not include a scar protocol examination, despite the examination form specifying that such an examination should be conducted.  The Veteran currently does not receive a separate evaluation for the associated scarring.

Consequently, the Board will remand the case for another VA examination.

Accordingly, this case is remanded to the Agency of Original Jurisdiction (AOJ) for the following actions:

(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.)

1.  The AOJ should arrange for the Veteran to be evaluated by the appropriate specialist(s) to determine the nature, extent, and severity of the service-connected gunshot wound of the left buttocks/hip, to include the associated scars.  The claims folder, and a copy of this remand, must be made available to the examiner for review as part of the examination process.  All necessary tests and studies deemed necessary should be performed.  The examiner(s) should record a complete history, all pertinent medical complaints, symptoms, clinical findings, and comment on the functional limitation, if any, caused by the service-connected disability.  Recognizing that Muscle Groups XVI and XVII have been documented as having been involved, the examiner(s) should specify the degree of injury to those muscle groups and what functional abilities are affected.  In addition, the examiner(s) should indicate if any other Muscle Groups are involved, and if so the extent of injury and any functional impairment.  

Further, the examiner(s) should identify the etiology of any neurological manifestations, as well as the degree of injury involved and any functional impairment that results.  The examiner(s) should comment as to whether the disability associated with any of the affected muscle groups would be considered moderate, moderately severe, or severe.  In this regard, he/she should comment concerning 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.  

The examiner should specifically identify and describe all associated scars, and comment on whether the scars are painful (tender), deep, superficial, linear or nonlinear, and/or unstable.  The examiner should describe any functional impairment caused by the scars.  A complete rationale for any opinion expressed must be provided.  

2.  When the above development has been properly completed, the issue should be readjudicated by the RO.  The RO should specifically determine whether separate ratings are warranted for any scarring in accordance with Esteban v. Brown, 6 Vet. App. 259 (1994).  To the extent that the determinations remain adverse to the Veteran, both he and his representative should be issued a supplemental statement of the case (SSOC), which includes all relevant laws and regulations, including the revised regulations regarding evaluating scars, and afforded a reasonable opportunity to respond.  

After the above actions have been accomplished, the case should be returned to the Board for further appellate consideration, if otherwise in order.  By this remand the Board intimates no opinion, either legal or factual, as to the ultimate determination warranted in this case.  

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).

(CONTINUED ON THE NEXT PAGE)




____________________________________________
Thomas H. O'Shay
Acting Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs