Citation Nr: 1621867 Decision Date: 06/01/16 Archive Date: 06/13/16 DOCKET NO. 10-04 103 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a compensable rating for residuals of shell fragment wounds, to include, but not limited to, scars of the left arm, left leg, left knee, and right eye. 2. Entitlement to a disability rating in excess of 20 percent for residuals of shell fragment wounds to the left shoulder. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Howell, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1967 to August 1969. He is the recipient of the Combat Infantryman Badge and a Purple Heart among his awards and decorations. This matter initially came to the Board of Veterans' Appeals (Board) on appeal of issue one from a rating decision of the Department of Veteran's Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The RO in St. Petersburg, Florida, certified the appeal to the Board. The matter was remanded to the Appeals Management Center (AMC) in Washington, D.C. While in remand status, the AMC granted a disability evaluation of 20 percent for residuals of shell fragment wounds to the left shoulder, characterized as a deltoid strain. The Veteran initially indicated satisfaction with his appeal, but a short time later raised the issues of increased ratings for some of the shell fragment wounds. Thus, the appeal is considered to be active and has been returned to the Board. In preparing to decide the issues on appeal, the Board has reviewed the contents of the Veteran's Virtual VA and Veterans Benefit Management System (VBMS) claims files. All records are now in these electronic files. The Veteran testified at a May 2012 Travel Board hearing before the undersigned. A transcript of those proceedings is associated with the Veteran's VBMS record. In November 2013, the Board remanded this matter for further development. The appeal has been returned to the Board for further appellate consideration. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran seeks entitlement to a rating in excess of 20 percent for residuals of shell fragment wounds to the left shoulder, and a compensable rating for other residuals of shell fragment wounds, to include scars, the left elbow and wrist, the left knee and calf, and the right eye. In May 2012, the Veteran testified that he was wounded twice. First, in May 1968, an explosion in combat left shrapnel wounds in his left wrist and upper arm, and broke his left shoulder. He was treated at an Army Evac Hospital at DaNang, and eventually transferred to Cam Ranh Bay for rehabilitation. (While the Veteran's December 1970 claim indicates he was treated by the 85th Evac Hospital at DaNang, the Board notes that the 95th Evac Hospital operated at DaNang during the Vietnam War. See www.95thevac.com.) Second, in August 1968, another explosion in combat left shrapnel wounds under his right eye, and in his left calf and knee. He was initially treated for these wounds at the 27th Surgical Hospital, and then transferred to the 2nd Surgical Hospital at Chu Lai. See August 1968 Clinical Record Cover Sheet. Other than the August 1968 clinical record cover sheet and a brief mention in service treatment records and military records, the claims file contains no records of his treatment for these combat wounds. A remand is needed to attempt obtain hospitalization records of the Veteran's treatment in May 1968 at the 85th or 95th Evac Hospital at DaNang and at Cam Ranh Bay; and in August 1968 at the 27th Surgical Hospital and 2nd Surgical Hospital at Chu Lai. Further, a remand is needed to obtain additional VA examinations. In January 2014, the Veteran underwent a VA examination for the scars from his shell fragment wounds. The examiner noted eight scars from the upper left arm through the forearm, and indicated that they were neither painful nor unstable. The examiner further indicated that no other extremity, including the left leg, was affected by scarring. The examiner did not address the Veteran's testimony that the scars are sometimes painful. On remand, the Veteran should be afforded another VA examination. In addition to addressing the scars on the left arm, the examiner must specifically address whether there is scarring under the right eye, on the left calf, and on the left knee; and must also address the Veteran's testimony that the scars are sometimes painful. In April 2014, the Veteran underwent a VA examination for the residuals of shell fragment wounds to his left arm. The examiner diagnosed "right deltoid strain" affecting the left side, and later referred to "left deltoid strain." The examiner also indicated the Veteran had never had an injury to a muscle group of the forearm or hand, or the foot or leg, but noted x-ray evidence of shrapnel in the left forearm. The examiner conducted muscle strength testing and did determine the left deltoid strain was the natural progression of shell fragment wounds in the left arm. However, the examiner did not conduct any range of motion testing. On remand, the Veteran should be afforded an additional VA examination that includes range of motion testing on his left shoulder and arm and wrist. Further, the examiner should address the Veteran's report of elbow pain and x-ray findings of shrapnel in the left elbow; his report of numbness in the left fingers; and the etiology of his diagnosis of early deputryn contracture of the left hand. See, e.g., March 2009 and July 2009 treatment records. Finally, the record reflects that he has a diagnosis of degenerative joint disease in the cervical spine. See April 2009 VA Treatment Records. The examiner should opine as to whether the cervical spine arthritis is a residual of his shell fragment wounds. In his May 2012 hearing testimony, the Veteran stated that he had a superficial shrapnel wound in his left calf, and a shrapnel wound in his left knee. He further testified to having left knee problems such as buckling and swelling. He also reported popping in his left ankle. As the record does not reflect that he has had a VA examination for these residuals of his shell fragment wounds, one should be provided on remand. Finally, an April 2014 VA examiner diagnosed the Veteran with mild cataracts and opined that they were not related to his right eye shell fragment wounds or otherwise etiologically related to service. If service treatment records for the treatment of shrapnel fragment wounds to his right eye at the 27th Surgical Hospital or the 2nd Surgical Hospital at Chu Lai are obtained, an addendum opinion regarding the etiology of his right eye disorder should also be obtained. The addendum opinion must address the above named service treatment records. Accordingly, the case is REMANDED for the following action: 1. Contact the National Personnel Records Center, the National Archives Center in St. Louis, or any other appropriate government custodian, and obtain records of the Veteran's hospitalization and treatment in May 1968 at the 85th or 95th Evac Hospital at DaNang and at Cam Ranh Bay; and in August 1968 at the 27th Surgical Hospital and 2nd Surgical Hospital at Chu Lai. All attempts to obtain records should be documented in the claims folder. 2. If the records from the 27th Surgical Hospital and 2nd Surgical Hospital at Chu Lai are obtained, forward the claims file to an appropriate VA examiner to provide an opinion as to the relationship between any diagnosed eye disorder and the Veteran's service. The examiner must be provided access to the appellant's claims folder, to include access to his VBMS and Virtual VA files. The examiner should indicate in the opinion that all pertinent records were reviewed. The examiner must specifically address the service records regarding treatment of the Veteran's shell fragment wounds to his right eye. A comprehensive rationale must be furnished for all opinions expressed. If an examination is needed to provide a complete opinion, one should be scheduled. 3. After any additional documents are obtained and associated with the claims file, but whether or not records are obtained, schedule the Veteran for a VA examination to determine the nature and severity of any residuals from his shell fragment wounds. The electronic claims folders must be provided to and reviewed by the examiner as part of the examination. The examiner must specify in the report that the claims files have been reviewed. The examiner is asked to address the following: a) The examiner should clearly identify all residuals of the shell fragment wounds of the Veteran's left shoulder girdle, arm, forearm, and hand to include any muscle or nerve impairment, in accordance with the pertinent rating criteria for evaluating the condition(s). The examiner should also provide a functional assessment as to whether the overall residuals for any muscle group involved. The examiner should address the Veteran's report of elbow pain and x-ray findings of shrapnel in the left elbow; his report of numbness in the left fingers; and the etiology of his diagnosis of early deputryn contracture of the left hand. The examiner should also offer an opinion as to whether the Veteran's diagnosed cervical degenerative joint disease is etiologically related to his shell fragment wounds. The examiner should note that the Veteran has testified that the explosion that resulted in shell fragment wounds to his left arm also broke his left shoulder. b) The examiner should clearly identify all residuals of the shell fragment wounds of the Veteran's left foot and leg in accordance with the pertinent rating criteria for evaluating the condition(s). The examiner should also provide an assessment as to whether there are any residuals to any muscle group. The examiner should address the Veteran's report of buckling and swelling of the left knee, and popping of the left ankle. c) The examiner should conduct range of motion testing, expressed in degrees, of the left wrist, left elbow, left shoulder, left knee, and left ankle. The examiner should render specific findings as to whether, during the examination, there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination. If pain on motion is observed, the examiner should indicate the point at which pain begins. In addition, the examiner should indicate whether, and to what extent, the Veteran experiences likely functional loss due to pain and/or any of the other symptoms noted above during flare-ups and/or with repeated use; to the extent possible, the examiner should express any such additional functional loss in terms of additional degrees of limited motion. d) The examiner should also render findings pertinent the residual scars of the left arm, left calf and knee, and right eye, consistent with the revised criteria for evaluating scars, to include describing all scars associated with the residuals of the shell fragment wounds; and, for each scar, stating the size of the area affected (in inches or centimeters), whether the scar is deep or superficial, is linear or nonlinear, causes limitation motion, is unstable, or is painful on examination. The examiner should address the Veteran's testimony that the scars are sometimes painful. A complete rationale must be provided for these opinions. If the examiner opines that any question cannot be answered without resorting to speculation, then a detailed medical explanation as to why causation is unknowable must be provided. 4. After completing the actions detailed above, readjudicate the claim. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate 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 2014). _________________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2015).