Citation Nr: 1337456 Decision Date: 11/18/13 Archive Date: 11/26/13 DOCKET NO. 10-03 258 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to an increased rating for the residuals of a fragment wound of the abdomen and right groin area (Muscle Group XIX), currently evaluated as 10 percent disabling. 2. Entitlement to service connection for a right hip disorder, to include as secondary to the service-connected residuals of a fragment wound of the abdomen and right groin area (Muscle Group XIX), to a residual scar of the right groin, and a right inguinal hernia. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Shauna M. Watkins, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1966 to July 1968. During his active military service, he was awarded, in pertinent part, the Combat Infantryman Badge and the Purple Heart award. The Veteran's claims come before the Board of Veterans' Appeals (Board) on appeal from November 2008 and January 2009 rating decisions of the U.S. Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan, which denied the benefits sought on appeal. The Veteran then perfected a timely appeal of these issues. The Veteran's Virtual VA paperless claims file has been reviewed in preparing this remand, along with his paper claims file. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND Inasmuch as the Board regrets the additional delay of this appeal, a remand is required before the claims can be properly adjudicated. Initially, the Veteran's last VA examination to assess the current severity of his service-connected fragment wound of the abdomen and right groin area (Muscle Group XIX) was in September 2010. The Veteran and his representative in statements dated in October 2010 have argued that this examination was inadequate. The Board agrees. Specifically, the September 2010 VA examination was a digestive examination, which is inadequate to address all residuals from his service-connected shell fragment wound residuals. Additionally, this examination is now over three years old. Where the evidence of record does not reflect the current state of a Veteran's disability, a VA examination must be conducted. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board finds that the September 2010 VA examination is inadequate to assess the Veteran's current levels of severity. A new VA examination is therefore required. Regarding the right hip claim, the Board finds that a VA addendum medical opinion is needed before the claim can be decided on the merits. The Veteran was afforded a VA examination and medical opinion in September 2010. Following a physical examination of the Veteran and a review of the claims file, the VA examiner provided a negative medical nexus opinion regarding whether the Veteran's current right hip disorder was caused or aggravated by the service-connected fragment wound of the abdomen and right groin area. However, the examiner did not also provide a medical opinion regarding whether the Veteran's right hip disorder was caused or aggravated by the residual scar of a shell fragment wound to the right groin and/or service-connected right inguinal hernia. The Veteran has submitted private medical opinions, suggesting a relationship between his right hip disorder and his service-connected scar and hernia. However, to date, a VA medical opinion regarding whether the Veteran's right hip disorder was caused or aggravated by his service-connected residual scar of a shell fragment wound to the right groin and/or service-connected right inguinal hernia has not been obtained. 38 C.F.R. § 3.310 (2013). Further, a VA medical opinion on the issue of direct service connection (i.e., whether the Veteran's current right hip disorder was incurred in or related to his active military service, to include the documented in-service shell fragment wound) has not been obtained. 38 C.F.R. § 3.303 (2013). The Board finds that these medical opinions are necessary. Therefore, a VA addendum medical opinion must be obtained upon remand. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes to provide a medical opinion, it must provide one that is adequate). The Veteran is hereby notified that it is his responsibility to report for any examination scheduled in connection with this REMAND at whatever location it is scheduled, and to cooperate in the development of his case. The consequences of failure to report for a VA examination may include denial of his claims. 38 C.F.R. §§ 3.158, 3.655 (2013). Finally, upon remand, all recent and pertinent private treatment records must be obtained and associated with the claims file. See 38 U.S.C.A. § 5103A(a)(1), (b)(1), (c)(1) (West 2002). Accordingly, the case is REMANDED for the following actions: 1. Obtain and update all of the Veteran's pertinent and recent private treatment records. If no new records are associated with the claims file, a written determination should be included in the claims file. 2. Schedule the Veteran for a VA examination by a qualified physician to determine the current severity of all residuals of the fragment wound of the abdomen and right groin area. The Veteran's paper and paperless claims folders, to include a copy of this Remand, must be made available to and reviewed by the examiner(s) in conjunction with the examination report. Any indicated studies should be conducted. Specifically, the examiner(s) should identify all residuals attributable to the Veteran's service-connected fragment wound of the abdomen and right groin area, to include any muscle, orthopedic, and neurological residuals. The examination report must include pertinent ranges of motion, with notations as to the degree of motion at which the Veteran experiences pain. The extent of any weakened movement, excess fatigability, and incoordination on use should also be described by the examiner(s). The examiner(s) should assess the additional functional impairment due to weakened movement, excess fatigability, or incoordination in terms of the degree of additional range of motion loss. If not feasible to do so to any degree of medical certainty, then the examiner(s) should so indicate. The examiner(s) should also express an opinion concerning whether there would be additional functional impairment on repeated use or during flare-ups. The examiner(s) should assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss. If not feasible to do so to any degree of medical certainty, then the examiner(s) should so indicate. The examiner(s) should specifically discuss the severity of any muscle impairment of the fragment wound of the abdomen and right groin area in terms of slight, moderate, moderately severe, and severe, including any muscle impairment of the affected Muscle Groups. The examiner(s) should also state whether there are any neurological residuals associated with the Veteran's service-connected fragment wound of the abdomen and right groin area, and identify any nerves involved. If so, the examiner(s) should also specifically discuss the extent, if any, of paralysis of the nerves involved. Finally, the examination report must provide complete rationale for all findings and conclusions. 3. Ask the September 2010 VA examiner to provide an addendum opinion, or if the VA examiner determines that it is necessary, schedule the Veteran for a VA examination with an appropriate expert to determine the etiology of the Veteran's current right hip disorder. The VA examiner should thoroughly review the Veteran's VA paper and paperless claims file, as well as a complete copy of this Remand in conjunction with the examination. The VA examiner should note that this action has been accomplished in the VA examination report. The VA examiner is requested to specifically address the following: a) Is it at least as likely as not that the Veteran's currently diagnosed right hip disorder had its onset in or is otherwise related to his active military service, to include the in-service shell fragment wound injury? b) Is it at least as likely as not that the Veteran's currently diagnosed right hip disorder is caused by or due to his already service-connected right inguinal hernia? c) Is it at least as likely as not that the Veteran's currently diagnosed right hip disorder was aggravated beyond the normal progression of the disorder by his already service-connected right inguinal hernia? d) Is it at least as likely as not that the Veteran's currently diagnosed right hip disorder is caused by or due to his already service-connected residual scar of a shell fragment wound to the right groin? e) Is it at least as likely as not that the Veteran's currently diagnosed right hip disorder was aggravated beyond the normal progression of the disorder by his already service-connected residual scar of a shell fragment wound to the right groin? The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion (e.g., diagnosis, etiology) as it is to find against the conclusion. In forming his or her opinion, the VA examiner is asked to consider the Veteran's lay statements regarding the progression of the disorder, and comment on whether the Veteran's statements make sense from a medical point of view. Any opinion expressed by the VA examiner should be accompanied by a complete rationale. If medical literature is relied upon in rendering this determination, the VA examiner should specifically cite each reference material utilized. If the VA examiner is unable to offer an opinion without resorting to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. 4. After the above actions have been completed, readjudicate the Veteran's claims. If the claims remain denied, issue to the Veteran and his representative a Supplemental Statement of the Case (SSOC). Afford them the appropriate period of time within which to respond thereto. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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. 2013). _________________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board 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) (2013).