Citation Nr: 1426489 Decision Date: 06/11/14 Archive Date: 06/16/14 DOCKET NO. 08-22 997 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in White River Junction, Vermont THE ISSUES 1. Entitlement to a rating in excess of 30 percent for the service-connected shell fragment wound residuals of the right arm with retained foreign body on the basis of muscle damage. 2. Entitlement to a separate rating for the service-connected shell fragment wound of the right arm with retained foreign body on the basis of nerve damage. 3. Entitlement to a rating in excess of 10 percent for the service-connected shell fragment wound residuals of the right leg with retained foreign body. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Turner, Counsel INTRODUCTION The Veteran served on active duty from April 1968 to March 1971. This matter initially came before the Board of Veterans' Appeals (Board) on an appeal from an August 2006 rating decision issued by the RO in St. Louis, Missouri. The case is now under the jurisdiction of the RO in White River Junction, Vermont. The Board remanded the case for additional development of the record in December 2011. The issue of an increased rating in excess of 10 percent for the service-connected shell fragment wound residuals of the right leg with retained foreign body is being remanded to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The symptoms of the service-connected shell fragment wound residuals of the right arm with retained foreign body are shown to more nearly resemble a separately ratable disability picture manifested by moderate incomplete paralysis of the median nerve of the lower part of the Veteran's major upper extremity. 2. The symptoms of the service-connected shell fragment wound residuals of the right arm with retained foreign body are shown to more closely approximate a disability picture manifested by severe damage to the muscles of the upper part of the Veteran's major extremity. CONCLUSIONS OF LAW 1. The criteria for the assignment of a separate 30 percent rating, but no higher for the service-connected shell fragment wound residuals of the right arm with retained foreign body on the basis of nerve damage are met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. § 3.159, 3.321, 4.1-4.14, 4.124a including Diagnostic Codes 8510-8517 (2013). 2. The criteria for the assignment of an increased rating of 40 percent, but no higher for the service-connected shell fragment would residuals of the right arm with retained foreign body of the basis of muscle damage are met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. § 3.159, 3.321, 4.1-4.14, 4.73a including Diagnostic Code 5305 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION VCAA As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants with substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). 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). The notice requirements of VCAA apply to all elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Here, the duty to notify was satisfied by letters that were sent to the Veteran by the RO. A letter dated in March 2006, prior to the rating decision at issue, explained how VA could help the Veteran develop evidence in support of his claims. The March 2006 letter also informed the Veteran that in order to receive higher ratings for his service connected disabilities, he needed to show that they had become worse. An October 2006 letter explained how VA assigned ratings and effective dates for service connected disabilities. The Veteran's claim was thereafter readjudicated on multiple occasions, most recently in August 2012. The Board finds that all necessary development has been accomplished and that appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The evidence of record includes the Veteran's service treatment records, VA treatment records, Social Security Administration (SSA) disability records, and the lay assertions of the Veteran. The Veteran was also afforded VA examinations that adequately documented the symptoms and functional effects of his disability, most recently in January 2012. The most recent evidentiary development and examination were in compliance with the instructions set forth in the December 2011 remand. The Board thus finds that no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim decided herein. 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 v. Principi, 16 Vet. App. 183 (2002). Increased Rating The Veteran asserts that the service-connected residuals of the shell fragment wound to the right arm rated as 30 percent disabling is worse than contemplated by that rating. The Board notes that the Veteran also has been assigned a separate 10 percent rating for the service-connected shell fragment wound residuals on the basis of having a scar on his right arm. This rating is not at issue. Disability ratings are determined by applying criteria that are set forth in the VA's Schedule for Rating Disabilities (38 C.F.R. Part 4). Ratings are based on average impairments of earning capacity resulting from particular diseases and injuries and the residuals thereof in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Disabilities are described utilizing diagnostic codes set forth in 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Where entitlement to compensation for a service-connected disease or injury already has been established and entitlement to an increase in the disability rating is at issue, the present level of disability is of primary importance. See, e.g., Franciso v. Brown, 7 Vet. App. 55, 58 (1994). Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. See generally Hart v. Mansfield, 21 Vet. App. 505 (2007). The service-connected right arm disability is presently rated pursuant to 38 C.F.R. § 4.73a, Diagnostic Code 5305, based on injury to muscle group V. Muscle group V controls elbow supination and elbow flexion and includes the biceps, brachialis, and brachioradalis. Pursuant to Diagnostic Code 5305, a 30 percent rating is applied for moderately severe impairment of the dominant extremity or severe impairment of the non-dominant extremity. A 40 percent rating applies for severe impairment of the muscles of the dominant extremity. 40 percent is the highest scheduler rating under this Diagnostic Code. Muscle disabilities are evaluated pursuant to 38 C.F.R. § 4.56 according to the type of injury, history and complaint, and objective findings. A slight muscle disability is characterized by a simple wound of muscle without debridement or infection. The history is over a superficial wound in service with brief treatment and return to duty. Healing was with good functional results. There are no cardinal signs and symptoms of muscle disability. Cardinal signs of muscle disability consist of loss of power, weakness, lower threshold of fatigue, fatigue-pain, impairment of coordination, and uncertainty of movement. A moderate muscle disability is characterized by a through and through or deep penetrating would of short track from a single bullet, small shell or shrapnel fragment, without explosive effect of high velocity missile, residuals of debridement, or prolonged infection. The history shows 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. Objective findings consist of entrance and exit scars, small or liner, indicating a short track of the missile through muscle tissue. There is some loss of deep fascia or muscle substance or impairment of muscle tonus and loss of power or lowered threshold of fatigue as compared to the sound side. A moderately severe disability of the muscles in characterized by a through and through or deep penetrating wound by a small high velocity missile or large low-velocity missile with debridement, prolonged infection, or sloughing of soft parts and intramuscular scarring. The history shows hospitalization for a prolonged period for treatment of the wound. There is a record of consistent complaints of cardinal signs and symptoms of muscle disability and, if present, inability to keep up with work requirements. Objective findings include entrance and exit scars indicating the track of the missile through one or more muscle groups. There are indications on palpation of loss of deep fascia, muscle substance, or normal firm resistance of muscles as compared with the sound side. Tests of strength and endurance compared with the sound side demonstrate positive evidence of impairment. A severe disability of the muscles consists of 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, intramuscular binding and scarring. There is a history showing hospitalization for a prolonged period for treatment of the wound. There is 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. Objective findings include ragged, depressed and adherent scars indicating wide damage to muscle groups in the missile track. Palpation shows loss of deep fascia of muscle substance, or soft flabby muscles in the wound area. Muscles swell and harden abnormally in contraction. Tests of strength, endurance, or coordinated movements compared with the corresponding muscles of the uninjured side indicate severe impairment of function. If present the following are also signs of severe muscle disability: (a) x-ray evidence of minute multiple scattered foreign bodies indicating intramuscular 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. 38 C.F.R. § 4.56(d). In applying these ratings, a through and through injury with muscle damage shall be evaluated as no less than a moderate muscle injury to the group of muscles damaged. 38 C.F.R. § 4.56(b). An open comminuted fracture with muscle or tendon damage will be rated as a severe injury of the muscle group involved unless, for locations such as the wrist or over the tibia, evidence establishes that the muscle damage is minimal. 38 C.F.R. § 4.56(a). If motion of the elbow and forearm is affected then alternatively criteria at 38 C.F.R. § 4.71a, Diagnostic Codes 5205-5207 or 5213 could apply. A 30 percent rating applies when extension of the forearm is limited to 90 degrees on the dominant side or 100 degrees on the non-dominant side, flexion is limited to 70 degrees on the dominant side or 55 degrees on the non-dominant side, or there is favorable ankylosis of the elbow on the non-dominant side, or there is limitation or pronation with motion lost beyond the middle of the arc. A 40 percent rating applies when there is limitation of extension of the forearm to 100 degrees on the dominant side or 110 degrees on the non-dominant side, flexion is limited to 55 degrees on the dominant side or 45 degrees on the dominant side, or there is favorable ankylosis of the elbow on the dominant side, or there is intermediate ankylosis of the elbow on the non-dominant side. A 50 percent rating applies if there is extension limited to 110 degrees on the dominant side, flexion limited to 45 degrees on the dominant side, intermediate ankylosis of the elbow on the dominant side, or unfavorable ankylosis of the elbow on the non-dominant side. A 60 percent rating applies for unfavorable ankylosis of the elbow on the dominant side. 60 percent is the highest rating available for restricted motion of the elbow and forearm. Alternatively, the Veteran's injury could be rated on the basis of a peripheral nerve injury to the extent there is neurological involvement. The most recent examination in January 2012 noted involvement of the right radial nerve, median nerve, ulnar nerve, and musculocutaneous nerve. Peripheral nerve injuries are rated according to criteria set forth in 38 C.F.R. § 4.124a. Paralysis of the radial nerve is rated pursuant to Diagnostic Code 8514. Complete paralysis, meaning there is drop of the hand and fingers, wrist and fingers are perpetually flexed,, the thumb is adducted falling within the line of the outer border of the index finger, cannot extend hand at wrist, extend thumb or proximal phalanges of the fingers, extend the thumb, or make lateral movements of the wrist; supination of the hand, extension and flexion of the elbow weakened, the loss of synergistic motion of extensors impairs the hand grip seriously; total paralysis or the triceps occurs only as the greatest rarity, is 70 percent disabling on the dominant side and 60 percent disabling on the non-dominant side. Severe incomplete paralysis is 50 percent disabling on the dominant side and 40 percent disabling on the non-dominant side. Moderate incomplete paralysis is 30 percent disabling on the dominant side and 20 percent disabling on the non-dominant side. Mild incomplete paralysis is 20 percent disabling, regardless of whether it is on the dominant or the non-dominant side. Paralysis of the median nerve is rated pursuant to Diagnostic Code 8515. When there is complete paralysis, meaning the hand is inclined to the ulnar side, the index and middle fingers are more extended than normally, there is considerable atrophy of the muscles of the thenar eminence, the thumb is in the plane of the hand, pronation is incomplete and defective, there is feeble flexion of the middle finger, cannot make a fist, index and middle fingers remain extended; cannot flex distal phalanx of thumb, defective opposition and abduction of the thumb at right angles to the palm, flexion of the wrist is weakened; and there is pain with trophic disturbances, it is rated 70 percent disabling on the dominant side and 60 percent disabling on the non-dominant side. Severe incomplete paralysis of the dominant side is 50 percent disabling and 40 percent disabling on the non-dominant side. Moderate paralysis is 30 percent disabling on the dominant side and 20 percent disabling on the non-dominant side. Mild paralysis is 10 percent disabling, regardless of whether it is the dominant or non-dominant side. Paralysis of the ulnar nerve is rated pursuant to Diagnostic Code 8516. Complete paralysis, meaning the griffin claw deformity, due to flexor contraction of ring and little fingers, atrophy very marked in dorsal interspace and thenar and hypothenar eminences; loss of extension of the ring and little fingers, cannot spread the fingers (or reverse), cannot adduct the thumb; flexion of wrist weakened, is 60 percent disabling on the dominant side and 50 percent disabling on the non-dominant side. Severe incomplete paralysis is 40 percent disabling on the dominant side and 30 percent disabling on the non-dominant side. Moderate incomplete paralysis is 30 percent disabling on the dominant side and 20 percent disabling on the non-dominant side. Mild incomplete paralysis is 10 percent disabling regardless of whether it is on the dominant or the non-dominant side. Paralysis of the musculocutaneous nerve is rated pursuant to diagnostic code 8517. Complete paralysis, meaning weakness but not loss of the flexion of the elbow and supination of the forearm, is 30 percent disabling on the dominant side and 20 percent disabling on the non-dominant side. Severe incomplete paralysis is 20 percent disabling regardless of whether it is on the dominant or the non-dominant side. Moderate incomplete paralysis is 10 percent disabling whether it is on the dominant or the non-dominant side. Mild incomplete paralysis is noncompensable. When rating peripheral nerve injuries, the term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most the moderate, degree. 38 C.F.R. § 4.124a, "Diseases of the Peripheral Nerves." When rating muscle and nerve injuries, a muscle injury rating will not be combined with a peripheral nerve paralysis rating of the same body part, unless the injuries affect entirely different functions. 38 C.F.R. § 4.55(a). Moreover, the evaluation of the same disability under various diagnoses is to be avoided. Disability from injuries to the muscles, nerves, and joints of an extremity may overlap to a great extent, so that special rules are included in the appropriate bodily system for their evaluation. 38 C.F.R. § 4.14. In his claim, the Veteran stated that his right arm was numb from the bicep to the wrist and that he had had constant pain of the right arm over the years. If he performed any repetitive activities with his right arm it started to ache and go numb and tingly. The Veteran was first examined by VA in March 2006. He described having a numb feeling from the level of the upper arm wound distally along his medial elbow then out to his forearm and hand. He described that it as getting worse with repetitive motion and becoming red and swollen with overuse although that had not happened in some time. A neurologic evaluation showed intact biceps and triceps reflexes. His motor strength including the extensors of the wrist and fingers, flexors and extensors of the elbow, and abductors and forward flexors of the should were all within normal limits. Sensation was intact to fine touch, but there was no perception of pain from the level of his scar distally and medially across the elbow and then in a broadening path so that at the right wrist there was diminished sensation from the dorsal midline across the radial styloid to approximately the radial one-third of the wrist and then down over the first dorsal compartment. The examiner assessed a nerve injury to the right arm in the distribution noted. The X-ray studies confirmed at least two shrapnel fragments in the right upper arm. The Veteran was examined in June 2007, when most attention was paid to the scar (for which he has a separate rating). However, the examiner noted that the adherent scar caused neurological pain down the Veteran's right arm and hand to his fingers with flexion of the elbow. He noted having a possible nerve injury as a result of the right upper arm wound, although the range of motion of the muscles of the Veteran's right arm and hand were normal. A separate June 2007 examination addressed the joints. The Veteran reported having pain in his right forearm and hand that was proportionate to how much he used his arm. He reported that even minimal activity caused radiating pain into his right forearm and hand. He described having an elliptical area of diminished sensation over the volar aspect of his entire right forearm. With repetitive forceful use of his right upper extremity, the Veteran reported experiencing an increasing loss of sensation distal to his healed shrapnel wound extending all the way from the medial epicondyle down to the volar crease of his right wrist. An adherent scar was noted on examination. The Veteran had full range of motion of his right shoulder and had complete extension of the right elbow to 0 degrees and full flexion to 130 degrees permitting apposition of the fingers of the right hand to the top of his right elbow. He had 90 degrees of pronation and supination. When the wound was touched it sent a shower of electric sensations into the right forearm. Again noted was the elliptical area of decreased epicristic sensation extending from the medial condoyle down to the volar crease of the right wrist consistent with the T1 dermatome and the autonomous zone of the musculotaneous nerve of the right forearm. The Veteran could feel deep pressure in the area but not fine wire sensation and he lacked two point discriminatory sense. Grasp of the right hand was unimpaired, and there were 80 degrees dorsiflexion of the right wrist and 60 degrees of palmar flexion and no problem with radial or ulnar deviation. The range of motion related symptoms did not appear to be aggravated with the sequential testing procedure. The examiner diagnosed traumatic neuropraxia median cutaneous nerve of the right dominant forearm secondary to remote shrapnel wound to the medial aspect of the right arm with adherence to underlying biceps muscle. The Veteran was again examined in May 2008. At that time, the examiner noted normal muscle tone, strength and bulk in all muscle groups of both upper extremities. Deep tendon reflexes were "1" and symmetrical throughout. Sensory examination was normal to pinprick, light tough, and vibration in the upper extremities. The examiner concluded that there was no clinical evidence of posttraumatic neuropathy of the right upper extremity. The Veteran was reexamined in November 2008. The Veteran complained of numbness and pins and needles in the ventral right upper extremity and a constant achiness in the same area. He reported having limited his activities because repetitive motion of his hand aggravated his symptoms. He reported that his symptoms had been stable for many years. Testing showed normal strength and tone. There was no drift or abductor pollicus brevis weakness or atrophy in the right hand. There was a sensory deficit characterized by numbness and dyesthesias in the ventral right forearm and upper arm. Reflexes were 2+ bilaterally and symmetric. The examiner opined that the Veteran's condition was basically unchanged from his prior examination, in that he experienced some numbness and dyesthesias in the right upper extremity distal to his shrapnel wound and ventrally in an area of approximately 3cm by 5 or 6 cm. The examiner believed this to be likely only mildly significant. The VA treatment records show complaints of chronic right upper extremity numbness. An EMG in September 2007 showed a mild right sided carpal tunnel syndrome, mild right ulnar neuropathy localized to the cubital tunnel, and some minor denervation changes likely due to prior trauma in the right triceps and flexor carpi ulnaris. He was given bilateral elbow extension splints for cubital tunnel syndrome. The examinations documented full strength and no evidence of atrophy or fasciculation, but mild decreased sensation in a roughly ulnar distribution for both arms. At a hearing in July 2010, in connection with a different claim, the Veteran testified that he had numbness and tingling sensations in his right arm and he had difficulty performing any activities with his right hand. The Veteran was reexamined in January 2012. The Veteran again reported altered sensation to the right forearm that worsened with activity to include the hand. The Veteran reported having twice weekly flare ups lasting 30 to 45 minutes when he could not use his right hand at all. He reported having difficulty performing any activities, especially repetitive movement, with his right hand and having to rely more often on his left hand. He reported that he could only use his right arm for about five minutes at a time. The Veteran had 120 degrees of right elbow flexion with pain at 60 degrees and 10 degrees of extension with pain at 60 degrees. The range of motion did not change after repetition. Functional losses consisted of reduced range of motion, excess fatigability, pain on movement, swelling, and deformity. The examiner believed that the Veteran would have difficulty lifting and carrying, gripping, and pinching. The right arm condition also affected the Veteran's ability to stand and walk. Muscle strength was normal. The elbow was not ankylosed. The Veteran had right medial distal arm pain that radiated from the scar down the volar forearm to the wrist but not to the palm, decreased endurance, and swelling. The Veteran's injury was a penetrating wound to the muscles of Group V. There were no fascial defects caused by the muscle injury, and the injury did not affect muscle substance or function. The Veteran had a severe consistently lowered threshold of fatigue and pain. The Veteran, who was noted to be right handed, reported having severe constant pain, moderate paraesthesias or dyesthesias, and moderate numbness. Reflexes were normal. Sensation was decreased to the forearm and hand/fingers, but otherwise normal. There were no trophic changes. Gait was normal. The examiner assessed moderate incomplete paralysis of the right radial, median, ulnar, and musculocutaneous nerves. This was based on objectively decreased light touch sensation without demonstrable weakness. The function of the Veteran's right upper extremity was not so impaired as to be equivalent to amputation with prosthesis. The symptoms of the Veteran's right arm shell fragment wound injury (apart from the scar for which he is separately rated) are shown to have productive of a disability picture that more closely approximates that of moderate incomplete paralysis of the median nerve of the right arm. To the extent that there is shown to be involvement of the peripheral nerves of the same arm manifested by impairment of the forearm and hand, the Board finds that a separate rating of 30 percent is for application in this case. The prohibition against pyramiding in this regard would prohibit the assignment of a higher rating that could be combined with the rating already in effect based on muscle injury to musculature of the right upper arm. Additionally, while the shell fragment wound is shown to have been productive of an unusual pattern of peripheral nerve injury, the Board also finds that the disability picture more nearly resembles the criteria for the assignment of a 40 percent rating based on severe overall damage to Muscle Group V under Diagnostic Code 5305. To the extent possible this best represents the status of the muscle injury above-the-elbow in addition to the separate rating under the peripheral nerve codes for manifestations below-the-elbow of the Veteran's major arm. The combined rating, in the Board's opinion, adequately addresses the Veteran's overall arm dysfunction that includes a retained foreign body and an adherent scar of the musculature of the upper arm with significant problems on repetitive use of the extremity and some neurological deficit of the forearm and hand per his reports. The Board finds that the Veteran's symptoms do not present such an exceptional disability picture as to render the schedular rating inadequate. 38 C.F.R. § 3.321(b). See also Thun v. Peake, 22 Vet. App. 111, 115 (2008) (the threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the schedular evaluation is inadequate). Symptoms such as reduced sensation, numbness, pain, and loss of function of the arm are contemplated by the rating schedule. The Veteran is in receipt of a total disability rating based on individual unemployability (TDIU) by reason of the service-connected disabilities that are related to his combat service in the Republic of Vietnam. ORDER A separate rating of 30 percent rating, but no higher for the service-connected shell fragment wound residuals, right arm, with retained foreign body on the basis of nerve damage is granted, subject to the regulations controlling disbursement of monetary benefits . An increased rating of 40 percent, but no higher for the service-connected shell fragment wound residuals, right arm, with retained foreign body on the basis of muscle damage is granted, subject to the regulations controlling disbursement of monetary benefits . REMAND The Veteran alleges that the symptoms of his shell fragment wound of the right leg with retained foreign body are more than 10 percent disabling. The Veteran's disability is currently rated as a painful scar under 38 C.F.R. § 4.118, diagnostic code 7804 (2006). It is noted that there are actually two scars on the right lower leg (in addition to a scar on the right thigh for which the Veteran is separately rated). At the most recent VA scars examination in January 2012, the examiner noted that the Veteran had three scars on his body which were painful, but did not identify which scars were painful. Therefore, it is unclear whether the Veteran has one or two painful scars on his right lower leg associated with the shell fragment wound. Under the version of 38 C.F.R. § 4.118 in effect at the time the Veteran filed his claim he could potentially get separate ratings if both scars associated with the right leg shrapnel wound injury are painful. Additionally, at the January 2012 examination the examiner indicated that there was reduced function of the right leg associated with the right leg and thigh scars and referred the rater to an examination of the right knee and lower leg. That examination documented some right knee symptoms. Therefore, it is unclear whether the examiner was attributing the right knee symptoms to the right leg shrapnel wound, raising the possibility of a separate rating for the knee disability. Additionally, there is the question of entitlement to a separate rating for muscle damage, given that retained shrapnel was apparently removed from the Veteran's calf muscle in 2005 and the Veteran complained of continued right leg pain after the surgery which the January 2012 examiner referred to as "intermuscular" pain on a scars examination. He also documented an injury to muscle group XI on a muscles examination but does not appear to have attributed any muscle symptoms to the injury to muscle group XI. He does refer again refer the rater to the knee examination, so it is again unclear if he was indicating that the muscle wound from the shrapnel injury affected the function of the Veteran's right knee. Thus, further examination is necessary. Accordingly, these remaining matter is REMANDED for the following action: 1. The AOJ should have the Veteran scheduled for a new VA examination of his right leg shell fragment wound injury. All symptoms and functional effects of the injury should be described in the examination report. The examiner should specifically indicate (1) if either, or both, of the scars associated with the right leg shell fragment wound injury are painful; (2) whether there is any muscle injury due to the right leg shell fragment wound and, if so, all of the symptoms of the muscle injury. The examiner should specifically address whether there are any right leg muscle symptoms distinct from the symptoms associated with the right leg scars and also whether the injury was a through and through injury; (3) explain whether any right knee problems, including those identified at the January 2012 examination, are the result of, or aggravated by, the right leg shell fragment wound injury. 2. After completing all indicated development, the AOJ should readjudicate claim remaining on appeal. In so doing, the AOJ should expressly consider whether separate ratings for muscle or knee damage are assignable in this case. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a fully responsive Supplemental Statement of the Case (SSOC) and afforded a reasonable opportunity for response. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The Veteran 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. 2013). ____________________________________________ STEPHEN WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs