Citation Nr: 1332815 Decision Date: 10/21/13 Archive Date: 10/24/13 DOCKET NO. 05-35 817 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to a separate compensable evaluation for a scar, postoperative residual of Putti-Platt repair, right (major) shoulder injury. 2. Entitlement to a total rating for individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney WITNESSES AT HEARING ON APPEAL The Veteran, Ms. W.R., and Ms. R.G. ATTORNEY FOR THE BOARD Bernard T. DoMinh, Counsel INTRODUCTION The Veteran served on active duty from September 1968 to June 1970. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2005 rating decision by the Columbia, South Carolina, Regional Office (RO) of the Department of Veterans Affairs (VA) which, inter alia, denied the Veteran's claim for an increased evaluation above 30 percent for postoperative residuals of Putti-Platt repair, right (major) shoulder injury with traumatic arthritis and ulnar nerve entrapment syndrome. In October 2007, the Veteran, accompanied by an agent from his then-representative, Disabled American Veterans, and his witnesses, Ms. W.R. and Ms. R.G., presented oral testimony in support of this appeal before the undersigned traveling Veterans Law Judge sitting at the RO. A transcript of this hearing has been duly obtained and associated with the Veteran's claims file. This case has a lengthy development history, having been previously remanded by the Board to the agency of original jurisdiction for evidentiary and procedural development in February 2008, April 2009, and June 2010. Thereafter, in an August 2012 appellate decision, the Board confirmed the 30 percent evaluation assigned for postoperative residuals of Putti-Platt repair, right (major) shoulder injury with traumatic arthritis and ulnar nerve entrapment syndrome. The Board's decision in this regard also included a denial of a separate compensable evaluation for a scar that was a residual of the surgery to repair the right shoulder injury. In the same decision, the Board also awarded a separate 10 percent evaluation for ulnar nerve entrapment syndrome of the right (major) upper extremity and remanded the issue of entitlement to a TDIU for appropriate development and adjudication, having determined that the record raised the TDIU claim and that it was part and parcel to the increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The remanded TDIU claim has since been adjudicated and denied in a June 2013 rating decision. The Veteran appealed the August 2012 Board decision to the United States Court of Appeals for Veterans Claims (Court). In July 2013, the Court granted a joint motion of the appellant and the Secretary of VA to vacate only that part of the August 2012 Board decision that denied an award of a separate compensable evaluation for a residual scar of surgery to repair the service-connected right shoulder injury. This specific issue was remanded to the Board for development and adjudication consistent with the July 2013 joint motion. Correspondence submitted by the Veteran's attorney in September 2013 includes a statement indicating that the Veteran is also, in essence, claiming that there was clear and unmistakable error (CUE) with regard to a prior final rating decision dated in February 2012, which had severed an award of service connection for depressive disorder (not otherwise specified). As this issue has not been adjudicated in the first instance by the agency of original jurisdiction, it is not in appellate status before the Board and the CUE claim is therefore referred to the RO for appropriate action. For the reasons discussed below, this appeal is REMANDED to the RO. VA will notify the appellant and his representative if further action is required on their part. REMAND As relevant, the July 2013 joint motion of the appellant and the VA Secretary requested a vacatur of that part of the August 2012 Board decision that denied a separate compensable evaluation for an incision scar along the anterior deltopectoral region of the right shoulder, which was a service-connected residual of Putti-Platt surgery to repair a right shoulder injury. The basis for the parties' motion to vacate was that the Board provided inadequate reasons and bases to support its determination that an October 2009 VA examination report showing tenderness of this scar on palpation was an "outlier" when considered in the context of clinical evidence dated prior to the October 2009 examination, which did not indicate the presence of any symptoms associated with this scar. The Board has considered the clinical evidence dated subsequent to the October 2009 VA examination that is associated with the Veteran's claims file and which appears on the VBMS and Virtual VA electronic databases. These records are current up to June 2013. No examination of the scar at issue is included in these records, nor do the records include mention of the incision scar along the anterior deltopectoral region of the right shoulder, much less present an objective assessment of the severity of any symptoms associated with it. Therefore, given the state of the record, it is impossible for the Board as fact-finder to determine if the symptomatic scar noted during the October 2009 VA examination indicates the presence of a chronic disabling condition associated with the service-connected right shoulder injury or is merely a clinical outlier and not a true indication that this scar results in any residual disability. The case should thus be remanded to the RO for a new medical examination that objectively assesses the scar and provides current pertinent clinical findings. [See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007): a medical examination is considered adequate for rating purposes when it is based on consideration of an appellant's prior medical history and describes the disability in sufficient detail so that the Board's evaluation of the claimed disability is a fully informed one.] As the outcome of the claim for a separate compensable evaluation for a scar, postoperative residual of Putti-Platt repair, right (major) shoulder injury, may materially impact the outcome of the TDIU claim currently in appellate status, the two issues are inextricably intertwined with each other. As the scar claim is being remanded for additional evidentiary development, the TDIU claim will therefore be held in abeyance pending this development, after which the two claims will be readjudicated on the merits by the agency of original jurisdiction. Accordingly, the case is REMANDED to the RO for the following action: 1. Obtain the names and addresses of all medical care providers, both VA and non-VA, who treated the Veteran's incision scar along the anterior deltopectoral region of the right shoulder that was a service-connected residual of the surgery to repair the right shoulder injury, since October 2009 (the date of the most current examination of record that specifically addressed this scar). After obtaining the appropriate releases, those records not already associated with the evidence should be obtained for inclusion in the evidence. All attempts to procure records should be documented in the file. If records identified as relevant by the Veteran cannot be obtained, a notation to that effect should be made in the file. The Veteran is to be notified of unsuccessful efforts in this regard, to include providing him with the opportunity to obtain and submit those records for VA review. 2. Then, arrange for the Veteran to undergo an appropriate VA examination to ascertain the current symptoms and impairment associated with the incision scar along the anterior deltopectoral region of the right (major) shoulder, residual of the surgery to repair the right shoulder injury. Any indicated diagnostic tests and studies must be accomplished. The examiner must review the Veteran's claims folder in conjunction with the examination. A notation to the effect that this review has taken place should be made in the evaluation report. Any indicated diagnostic tests and studies must be accomplished. In addition, the examination should present objective clinical findings that answer the following questions: (a) What is the surface area of the incision scar of the anterior deltopectoral region of the right shoulder? (b) Is the incision scar of the anterior deltopectoral region of the right shoulder unstable or painful? (c) Is there functional impairment associated with the incision scar of the anterior deltopectoral region of the right shoulder due to instability, pain, and/or adhesion to the underlying tissues? If so, such impairment should be characterized in terms of limitation of range of motion of the affected right shoulder and/or upper extremity. The examiner should provide a complete rationale for any opinion provided. If he/she is unable to provide an opinion without resorting to speculation or conjecture, he/she should so state in his/her discussion and explain why. The report prepared must be typed. 3. Notify the Veteran that it is his responsibility to report for the above examination and to cooperate in the development of the claims being remanded. 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 (2013). In the event that the Veteran does not report for the aforementioned examination, documentation must be obtained which shows that notice scheduling the examination was sent to his last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 4. Thereafter, the claims file must be reviewed to ensure that all of the foregoing requested development has been completed. After all appropriate evidentiary development has been completed, readjudicate the Veteran's claims of entitlement to separate compensable evaluation for a scar, postoperative residual of Putti-Platt repair, right (major) shoulder injury and a TDIU. If the maximum benefit sought on appeal remains denied with regard to any of the above claims, a supplemental statement of the case must be provided to the Veteran. After the Veteran has had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review, if appropriate. The Board intimates no opinion as to the outcome in this case by the action taken herein. The appellant has the right to submit additional evidence and argument on the 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). _________________________________________________ MICHAEL A. HERMAN 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).