Citation Nr: 1334232 Decision Date: 10/29/13 Archive Date: 11/06/13 DOCKET NO. 10-09 505 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to an initial compensable evaluation for retained foreign material in the left leg, status post shell fragment wound. 2. Entitlement to an initial compensable evaluation for right forearm residual scar, shell fragment wound. 3. Entitlement to an initial compensable evaluation for left ring finger residual scars, shell fragment wound. 4. Entitlement to an initial compensable evaluation for right leg residual scars, shell fragment wound. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Amanda Christensen, Associate Counsel INTRODUCTION The Veteran had active military service from November 1983 to October 1987. This appeal comes to the Board of Veterans' Appeals (Board) from a January 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. The issue of entitlement to an initial compensable evaluation for right forearm residual scar, shell fragment wound, is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran's retained foreign material in the left leg and right leg residual scars, status post shell fragment wound are manifest by no more than minor muscle disability without limited motion or other functional loss. 2. A 1/4 inch by 1/16 inch scar below the left knee, 1/4 inch by 1/16 inch scar on the right anterior thigh, 1/4 inch by 1/16 inch scar on the right shin, and 1/2 inch by 1/16 inch scars on the dorsum of the proximal phalanx of the left ring finger are stable, flesh-colored, and nontender, with no adherence to or defects in the underlying structures. 3. The Veteran's noncompensable service-connected disabilities interfered with normal employability. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial compensable evaluation for retained foreign material in the left leg, status post shell fragment wound have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.126, 4.118; 38 C.F.R. § 4.1, 4.40, 4.45, 4.71a, 4.73, 4.118, Diagnostic Codes 5256-5263, 5310-5318, 7800-7805 (2013). 2. The criteria for an initial compensable evaluation for left ring finger residual scars, shell fragment wound, have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.126, 4.118; 38 C.F.R. § 4.1, 4.40, 4.45, 4.71a, 4.73, 4.118, Diagnostic Codes 5230, 5307-5309, 7800-7805 (2013). 3. The criteria for entitlement to an initial compensable evaluation for right leg residual scars, shell fragment wound, have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.126, 4.118; 38 C.F.R. § 4.1, 4.40, 4.45, 4.71a, 4.73, 4.118, Diagnostic Codes 5256-5263, 5310-5318, 7800-7805 (2013). 4. The criteria for a 10 percent evaluation based on multiple nonservice-connected disabilities have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 3.324 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2013). Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2013). However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14 (2013). If there is disagreement with the initial rating assigned following a grant of service connection, separate ratings can be assigned for separate periods of time, based on the facts found. Fenderson v. West, 12 Vet. App. 119, 126 (1999). See AB v. Brown, 6 Vet. App. 35 (1993) (a claim for an original or an increased rating remains in controversy when less than the maximum available benefit is awarded). The Veteran has claimed he is entitled to compensable ratings for scars on his right forearm, left ring finger, and right leg and retained foreign material in his left leg due to shell fragment wounds. The Veteran was afforded a VA examination in December 2007. The examiner found two scars on the dorsum of the proximal phalanx of the left ring finger. Both scars were 1/2 inch by 1/16 inch. The scars were stable, non-tender, and flesh-colored. There was no ulceration, keloid formation, adherence to underlying structures, or defects in underlying structures. Strength, sensation, and range of motion were normal. On his February 2010 substantive appeal, the Veteran stated that the scars on his left ring finger cause a numbness and minor to moderate pain from time to time. With respect to his right and left leg claims, the Veteran's private treatment records contain only one mention of right knee pain in November 2005. At his December 2007 VA examination, the Veteran reported experiencing pain in both knees since the shrapnel injury, worse in the right than the left. He also reported stiffness, weakness, swelling, head, buckling twice a year, and locking of the left knee. He noted a right knee injury five years ago. The examiner found no objective evidence of painful motion, edema, effusion, instability, weakness, tenderness, redness, heat, or abnormal movement in either knee and no unusual calluses on his feet or unusual shoe wear pattern. Knee range of motion was normal even after repetition. The examiner further found no evidence of atrophy or fasciculation of the lower extremities, with both calves and thighs having the same circumference. The Veteran's leg length was the same bilaterally. The Veteran reported being unable to play sports with his sons due to knee and arm pain. He also reported pain in his knees after walking or standing in one position for more than 45 minutes. The examiner found a 1/4 inch by 1/16 inch scar below the left knee. He also noted a 1/4 inch by 1/16 inch scar on the right anterior thigh and a 1/4 inch by 1/16 inch scar on the right shin. All of the scars were stable, flesh-colored, and nontender. The texture was normal with no elevation or depression, no inflammation, edema, or keloid formation; no defects in the underlying structures; and no adherence to the underlying structures. On x-ray, retained radiopaque foreign material was seen in the bilateral thighs, proximal anterior left tibial soft tissues, and in the proximal left tibia. The material was noted to likely represent shrapnel. In his December 2008 notice of disagreement the Veteran stated that he has constant pain in both of his legs due to the shrapnel. In his February 2010 substantive appeal he stated that the pain in his left leg is moderate to high and is intermittent depending on the weather, with the cold being the worst. A. Scars Scars are rated under Diagnostic Codes 7800-7805. 38 C.F.R. § 4.118. On October 23, 2008, during the course of this appeal, the rating criteria pertaining to scars were revised. The revisions to these diagnostic codes are applicable only to claims filed on or after October 23, 2008. See 73 Fed. Reg. 54,708 (Sept. 23, 2008). As the Veteran's claim was received in February 2007 and he has not requested reevaluation under the revised criteria, the revisions do not apply in this case. 73 Fed. Reg. 54708 (Sept. 23. 2008); 73 Fed. Reg. 54,708 (Jan. 20, 2012). Diagnostic Code 7800 contemplates scars of the head, face or neck and therefore does not apply in this case. 38 C.F.R. § 4.118. Diagnostic Code 7801 contemplates scars that are deep or cause limited motion. A compensable rating is assigned for a deep scar that is an area of at least 6 square inches. A deep scar is one associated with underlying soft tissue damage. Id. In this case, no underlying tissue damage has been shown to be associated with any of the Veteran's scars, nor do any of the scars cover an area of at least 6 square inches, so a compensable rating is not available under this code. Diagnostic Code 7802 contemplates superficial scars or those that do not cause limited motion. A compensable rating is assigned for a superficial scar that is in an area or areas of 144 square inches or greater. A superficial scar is one not associated with underlying soft tissue damage. Id. In this case, none of the Veteran's scars are 144 square inches or greater, therefore a compensable rating is not available under this code. Diagnostic Code 7803 contemplates scars that are superficial and unstable. An unstable scar is one where for any reason there is frequent loss of covering of skin over the scar. Id. In this case, none of the Veteran's scars have been found to be unstable, therefore a rating is not available under this code. Diagnostic Code 7804 contemplates superficial scars that are painful upon examination. Id. At the Veteran's December 2007 VA examination all of the Veteran's scars were found to be nontender. Further, the Veteran has not contended any of the scars themselves are painful. Therefore, a rating is not available under this code. Diagnostic Code 7805 provides that any other scars (including linear scars) and other disabling effects of scars should be evaluated even if not considered in a rating provided under diagnostic codes 7800-04 under an appropriate diagnostic code. Id. B. Muscle Disability Ratings are also available for muscle disability. Disabilities resulting from muscle injuries are classified as slight, moderate, moderately severe, or severe. 38 C.F.R. § 4.56(d) (2013). A slight disability is characterized by a single wound of muscle without debridement or infection; a service department record of superficial wound with brief treatment and return to duty; healing with good functional results; no cardinal signs or symptoms of muscle disability; minimal scar; no evidence of fascial defect, atrophy, or impaired tonus; and no impairment of function or metallic fragments retained in muscle tissue. A noncompensable rating is awarded for a slight disability. Moderate muscle disability contemplates a through and through or deep penetrating wound of short track from a single bullet, small shell, or shrapnel fragment, without the explosive effect of a high velocity missile, residuals of debridement, or prolonged infection; a service department record or other evidence of in-service treatment for the wound; and a record of consistent complaint 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, there are entrance and (if present) exit scars that are small or linear, indicating a short track of missile through muscle tissue; and 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 disability contemplates 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 department record or other evidence showing hospitalization for a prolonged period for treatment of wound; and record of consistent complaint of cardinal signs and symptoms of muscle disability, and, if present, evidence of inability to keep up with work requirements. Objectively, there are entrance and (if present) exit scars indicating track of missile through one or more muscle groups; indications on palpation of loss of deep fascia, muscle substance, or normal firm resistance of muscles compared with sound side; and tests of strength and endurance compared with sound side demonstrating positive evidence of impairment. Severe muscle disability contemplates a through and through or deep penetrating wound due to a 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; a service department record or other evidence showing hospitalization for a prolonged period for treatment of the wound; a record of consistent complaint 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. Objectively, there are ragged, depressed, and adherent scars indicating wide damage to muscle groups in the missile track; palpation shows loss of deep fascia or muscle substance, or soft flabby muscles in the wound area; muscles swell and harden abnormally in contraction; and tests of strength, endurance, or coordinated movements indicate severe impairment of function when compared with the uninjured side. 38 C.F.R. § 4.56(d)(4). If present, the following are also signs of severe muscle disability: (a) x-ray evidence of minute, multiple scattered foreign bodies indicating intermuscular trauma and explosive effect of the missile; (b) 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; (c) diminished muscle excitability to pulsed electrical current in electrodiagnostic tests; (d) visible or measurable atrophy; (e) adaptive contraction of an opposing group of muscles; (f) atrophy of muscle groups not in the track of the missile, particularly of the trapezius and serratus in wounds of the shoulder girdle; and (g) induration or atrophy of an entire muscle following simple piercing by a projectile. Id. For VA rating purposes, the cardinal signs and symptoms of muscle disability are loss of power, weakness, lower threshold of fatigue, fatigue-pain, impairment of coordination; and uncertainty of movement. 38 C.F.R. § 4.56(c). In Tropf v. Nicholson, 20 Vet. App. 317 (2006), the Court addressed the question of whether an appellant who has retained metallic fragments in the muscle, but is essentially asymptomatic, is entitled to a compensable disability rating under 38 C.F.R. § 4.56 and DC 5303 for a "moderate" disability of the muscle, given that section 4.56(d)(1)(iii) indicates that a "slight" disability rating will not be assigned where there are metallic fragments retained in muscle tissue. In answering this question in the negative, the Court determined that section 4.56(d) contains a totality-of-the-circumstances test in which no single factor is per se controlling for rating purposes, but rather are merely "factors to be considered" in assigning the appropriate rating. The Board finds that the Veteran's documented symptomatology in his right and left leg is not more than slight and does not warrant a compensable evaluation under the schedule of ratings for muscle injuries. See 38 C.F.R. § 4.73. The Veteran has retained fragments in the bilateral thighs, proximal anterior left tibial soft tissues, and in the proximal left tibia, as shown on x-ray. He has further reported pain, but experiences no debility in terms of muscle strength or action. The December 2007 VA examiner specifically found no evidence of muscle atrophy or fasciculation of the lower extremities, with both calves and thighs having the same circumference. Even with the Veteran's complaints of pain, there has been no demonstration of loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination, or uncertainty of movement. The criteria for a moderate muscle disability include "a record of consistent complaint of one or more of those signs of a muscle disability." The Veteran's complaints to the VA examiner and in statements submitted in connection with his claim have been primarily of pain. Further, private treatment records show numerous doctor visits for a variety of ailments but only one visit where he sought treatment for his leg and that was in regard to right knee pain. The Board finds that the Veteran's muscle impairment in his right and left leg is therefore best characterized as no more than "slight" and he is not entitled to a compensable rating. The Board recognizes the Veteran's complaints of pain, but finds that it does not manifest with muscle impairment. With respect to the Veteran's left ring finger scars, Board finds that the Veteran has not complained of any muscle disability as a result of his left ring finger scars and on VA examination in December 2007 strength, sensation, and range of motion were normal. Therefore, he is not entitled to a compensable rating for muscle disability based on his left ring finger scars. As a preponderance of the evidence is against a higher initial rating for muscle disability for either the Veteran's left leg or left ring finger, post shell fragment wound, the benefit of the doubt doctrine does not apply and the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49. C. Limitation of Motion The Board has also considered whether the Veteran is entitled to a rating under the schedule of ratings for the musculoskeletal system, including due to loss of range of motion. VA must also analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40, which requires the VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). However, it is important for the Veteran to understand that pain alone is not sufficient to warrant a higher rating, as pain may cause a functional loss, but pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 36-38 (2011). Rather, pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Id. at 43; see 38 C.F.R. § 4.40. Diagnostic Codes 5256-5263 apply to the knee and leg. At his December 2007 VA examination, the examiner found the Veteran's range of motion in his knees was normal even after repetition. The examiner also found no objective evidence of painful motion, effusion, instability, weakness, tenderness, or abnormal movement. The Board recognizes the Veteran's complaints of knee pain, but finds that the evidence does not demonstrate that the pain causes functional loss such that the Veteran is entitled to a compensable rating under the schedule of ratings for the musculoskeletal system. Under Diagnostic code 5230, a noncompensable evaluation is warranted for any limitation of motion of the ringer finger. The Veteran has not been shown to have any limitation of motion in his ring finger. As a preponderance of the evidence is against a higher initial rating under the schedule of ratings for the musculoskeletal system for the Veteran's left leg or left ring finger, status post shell fragment wound, the benefit of the doubt doctrine does not apply and the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49. C. Extraschedular The Board has also considered whether referral for consideration of an extraschedular rating is warranted, noting that if an exceptional case arises where ratings based on the statutory schedules are found to be inadequate, consideration of an "extra-schedular" evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities will be made. 38 C.F.R. § 3.321(b)(1). The Court has held that the determination of whether a claimant is entitled to an extraschedular rating under § 3.321(b) is a three-step inquiry, the responsibility for which may be shared among the RO, the Board, and the Under Secretary for Benefits or the Director, Compensation and Pension Service. Thun v. Peake, 22 Vet. App. 111 (2008). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. This means that initially there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is adequate, and no referral is required. If the criteria do not reasonably describe the claimant's disability level and symptomatology, a determination must be made whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. § 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). See id. However, in this case, the medical evidence fails to show anything unique or unusual about the Veteran's service connected left ring finger and right leg scars and retained foreign material in the left leg, status post shell fragment wound, that would render the schedular criteria inadequate. The Veteran's symptoms, including disfigurement and pain, are contemplated in the rating assigned. As such, it would not be found that his disability met the "governing norms" of an extraschedular rating. Accordingly, referral for consideration of an extraschedular rating is not warranted. Moreover, even if it were argued that the schedular rating criteria were inadequate, the Board finds no reason to refer the case to the Compensation and Pension Service to consider whether an extra-schedular rating is warranted. In this case, there is no evidence of any hospitalization associated with the Veteran's left ring finger and right leg scars and retained foreign material in the left leg, status post shell fragment wound. In addition, the Board finds the record does not reflect that the Veteran's left ring finger and right leg scars and retained foreign material in the left leg, status post shell fragment wound, markedly interferes with his ability to work, although the Board notes that he reported he loses about 60 hours of work per year due to leg and arm pain. See 38 C.F.R. § 4.1 (indicating that generally, the degrees of disability specified in the Rating Schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability). The manifestations of the Veteran's disability are considered by the schedular rating. Based on the foregoing, the Board finds the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321; Thun v. Peake, 22 Vet. App. 111 (2008). D. 38 C.F.R. § 3.324 Consideration Whenever a veteran is suffering from two or more separate permanent service-connected disabilities of such character as clearly to interfere with normal employability, even though none of the disabilities may be of compensable degree under the rating schedule, the rating agency is authorized to apply a 10 percent rating, but not in combination with any other rating. 38 C.F.R. § 3.324 (2013). The Board has considered whether the Veteran is entitled to a compensable rating under this provision. Here, the weight of the evidence shows that the service-connected disabilities interfere with normal employability. In this respect, on VA examination in July 2012, he stated that he lost around 60 hours or work due to the service-connected disabilities. Given such impact on employment, the Board finds that the criteria for a 10 percent rating under 38 C.F.R. § 3.324 have been met. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). Such notice should also address VA's practices in assigning disability evaluations and effective dates for those evaluations. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). While the required notice should be furnished prior to the issuance of the appealed rating decision, any initial errors of notice will not be prejudicial if: 1) corrective actions (e.g., issuance of a post-adjudication notice letter containing the required information) are taken, and 2) the appeal is readjudicated (e.g., in a Supplemental Statement of the Case). See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). In this case, the claims for higher initial ratings arise from the Veteran's disagreement with the initial ratings assigned after the grant of service connection. The courts have held, and VA's General Counsel has agreed, that where an underlying claim for service connection has been granted and there is disagreement as to "downstream" questions, the claim has been substantiated and there is no need to provide additional VCAA notice or address prejudice from absent VCAA notice. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); VAOPGCPREC 8-2003 (2003). Rather, if the disagreement is not resolved, the provisions of 38 U.S.C.A. § 7105(d) require VA to issue a Statement of the Case (SOC) concerning the downstream issue. Here, the RO provided this necessary SOC in December 2009, wherein the applicable statutes and regulations concerning the issue on appeal were cited and the reasons and bases for not assigning a higher initial rating were discussed. VA also has a duty to assist the Veteran with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of "relevant" records in the custody of a federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 C.F.R. § 3.159(c)(4). The Board finds that all necessary development has been accomplished. The RO has obtained the Veteran's service treatment records and private treatment records identified by the Veteran. The Veteran also submitted lay statements. Neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. The Veteran was afforded a VA medical examination in December 2007. The examiner, a medical professional, obtained an accurate history and listened to the Veteran's assertions with regard to the shrapnel wounds to the Veteran's legs and left ring finger. The examiner provided the Board with sufficient information to rate the Veteran's disabilities. Therefore, the Board finds that the examination is adequate and contains sufficient information to decide the issues on appeal. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio, 16 Vet. App. 183. ORDER An initial compensable evaluation for retained foreign material in the left leg, status post shell fragment wound, is denied. An initial compensable evaluation for left ring finger residual scars, shell fragment wound, is denied. An initial compensable evaluation for right leg residual scars, shell fragment wound, is denied. A 10 percent disability evaluation for multiple noncompensable service-connected disabilities under the provisions of 38 C.F.R. § 3.324 is granted. REMAND Unfortunately, remand of the Veteran's claim for an initial compensable rating for right forearm residual scar, shell fragment wound, is warranted. Although the Board regrets the additional delay, further development of the record is required to afford the Veteran every possible consideration. In his January 2007 claim, the Veteran stated that he has tingling in his right forearm and intermittent problems writing because of numbness. At his December 2007 VA examination, the Veteran reported a constant, dull, aching discomfort in the right forearm made worse by typing or writing and playing ball. The Veteran stated that he takes Tylenol on average once a day to reduce the pain from 9/10 to 5/10. He said he occasionally wakes up with some right arm pain and numbness. Examination of the right hand was normal with good grip strength for pushing, pulling, twisting and turning. The Veteran was able to opposed the tip of the thumb to the tip of the fingers of the right hand, make a fist, and opposed the tips of the fingers to the proximal palmar crease. The examiner found no muscle atrophy, fasciculation, or weakness. Decreased sensation to light touch and pin prick was noted directly over the forearm scar, but sensation in surrounding areas was normal. In his December 2008 notice of disagreement the Veteran stated that the shrapnel causes him extreme pain and occasional loss of function in his hand. He reported the pain causes him trouble sleeping. In his February 2010 substantive appeal the Veteran reported he has moderate to high pain in his forearm and intermittent loss of movement in his right arm. Given the Veteran's complaints of loss of function in his right hand and intermittent loss of movement in his right arm since his December 2007 VA examination that indicates a worsening of the Veteran's condition and suggests a possible neurological component, the Board finds that a new examination is needed. Therefore, to ensure that the record reflects the current severity of the Veteran's conditions, a more contemporaneous examination, with findings responsive to the applicable rating criteria, is needed to properly evaluate the Veteran's service-connected disabilities. Allday v. Brown, 7 Vet. App. 517, 526 (1995) (where record does not adequately reveal current state of claimant's disability, fulfillment of duty to assist requires contemporaneous medical examination, particularly if there is no additional medical evidence which adequately addresses level of impairment since previous examination); Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); Littke v. Derwinski, 1 Vet. App. 90, 92 (1990). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination to evaluate the nature and severity of the Veteran's right forearm shell fragment wound residuals. The claims file must be provided to the examiner for review. All necessary tests and studies should be conducted and the examiner should identify all residual disabilities resulting from the shrapnel wound to the right forearm to include any muscle or neurological disability. The examiner should specifically address the following: a) With regard to any muscle disability, the examiner should identify the muscle group(s) affected and comment on whether there is exhibited loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination, and/or uncertainty of movement due to muscle injury. The examiner is also requested to characterize the severity of the injury to each muscle group affected as slight, moderate, moderately severe, or severe. b) The examiner should further discuss whether the Veteran has functional loss from his shrapnel wound to the right forearm, and describe any pain that impacts functional loss, weakened movement, excess movement, excess fatigability, or incoordination resulting from the injuries, to include with repeated use or flare-ups. c) The examiner should also opine as to whether there is any neurological disability due to the Veteran's shrapnel wound to the right forearm, to include any sensory, reflex, or motor deficits. If so, the examiner should state which nerves are involved and rate the extent of the impairment as mild incomplete paralysis, moderate incomplete paralysis, severe incomplete paralysis, or complete paralysis. The examiner should conduct all necessary sensory, reflex, and motor testing, to specifically include EMG or nerve conduction velocity studies. 2. When the development requested has been completed, and the RO has ensured compliance with the requested action, this case should again be reviewed by the RO on the basis of the additional evidence. If the benefit sought is not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case, and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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). ______________________________________________ M. TENNER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs