Citation Nr: 1623774 Decision Date: 06/14/16 Archive Date: 06/29/16 DOCKET NO. 08-15 740 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to an evaluation in excess of 30 percent for service-connected gunshot wound (GSW) of the left leg with healed compound, comminuted fracture of the left tibia with scars, excluding a period of temporary total disability. 2. Entitlement to an initial evaluation in excess of 10 percent for left knee degenerative joint disease prior to September 8, 2003, and in excess of 20 percent thereafter, excluding a period of temporary total disability. 3. Entitlement to an initial compensable rating for a left ankle degenerative joint disease prior to September 1, 2004, and in excess of 10 percent thereafter. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Matthew Schlickenmaier, Associate Counsel INTRODUCTION The Veteran served on active duty in the Army from February 1968 to February 1971. He has been awarded a Purple Heart Medal, Combat Infantry Badge, Air Medal, and a Bronze Star Medal with a "V" Device, among his awards and decorations. This matter initially came before the Board of Veterans' Appeal (Board) on appeal from a December 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. Jurisdiction over this case was subsequently transferred to the RO in Newark, New Jersey, and that office forwarded the appeal to the Board. The Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge in September 2008. A transcript of that hearing was prepared and has been included in the claims file for review. In December 2008, the Board remanded the issue of entitlement to an increased rating for the left leg GSW for further development, to include obtaining outstanding treatment records and a VA examination. A June 2009 rating decision granted a separate 10 percent rating for degenerative joint disease of the left knee, as secondary to left leg GSW, effective September 8, 2003. In addition, a temporary total evaluation for treatment requiring convalescence was assigned from March 8, 2004 through April 30, 2004, for surgery involving the tibia and fibula resulting from the left leg GSW residuals. In January 2010, the Board remanded the issues of entitlement to increased ratings for left leg GSW and left knee degenerative joint disease for additional development. In February 2012, the Board again remanded the appeal for further development, to include issuance of a statement of the case regarding the issue of entitlement to an earlier effective date for the grant of service connection for degenerative joint disease of the left knee. A March 3, 2014 rating decision granted a separate 10 percent rating for degenerative joint disease of the left ankle, as secondary to left leg GSW, effective September 1, 2004. In addition, the temporary total evaluation was extended from March 8, 2004 through August 31, 2004. The evaluation of the left knee was increased to 20 percent beginning September 8, 2003, exclusive of the temporary total evaluation. A March 24, 2014 rating decision granted an earlier effective date of May 29, 1998 for the 10 percent rating for left knee degenerative joint disease. A March 2014 letter informed the Veteran that the award would be treated as a full grant of benefits and therefore no longer on appeal. The Veteran has not contested this determination and because in a September 2009 correspondence he specifically requested an effective date of May 29, 1998, the Board finds that that issue is no longer before the Board. The remaining issues are once again before the Board for consideration. This appeal was processed using the Virtual VA and Veterans Benefits Management System paperless claims processing systems. Accordingly, any future consideration of this appellant's case should take into account the existence of these electronic records. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Board sincerely regrets the additional delay but finds that a remand is once again necessary. Regarding the GSW, the Veteran in this case was initially assigned a 30 percent rating under Diagnostic Code 5311, effective February 1971. In assigning this 30 percent rating, the New York RO evaluated the Veteran's left leg muscle injury as involving a Muscle Group XI injury under 38 C.F.R. § 4.73, Diagnostic Code 5311. In the March 3, 2014 rating decision, however, the RO revised the rating to evaluate the disability as a Muscle Group XII injury, for which a 30 percent rating was continued under 38 C.F.R. § 4.73, Diagnostic Code 5312. The RO observed that while the New York RO had assigned a rating as involving Muscle Group XI, a February 1972 VA examiner had assessed the injury as involving Muscle Group XII. Muscle Group XI is comprised of the posterior and lateral crural muscles and the muscles of the calf: triceps surae (gastrocnemius and soleus); tibialis posterior; peroneus longus; peroneus brevis; flexor hallucis longus; flexor digitorum longus; popliteus; and plantarus. It relates to propulsion, plantar flexion of foot, stabilization of arch, flexion of toes, and flexion of knee. 38 C.F.R. § 4.73, Diagnostic Code 5311. Muscle Group XII is comprised of the anterior muscles of the leg: tibialis anterior, extensor digitorum longus, extensor hallucis longus, and peroneus tertius. It relates to dorsiflexion, involving the anatomic region of the foot and leg, and specifically includes the muscles involved in extension of the toes, and stabilization of the arch. 38 C.F.R. § 4.73, Diagnostic Code 5312. The Board's review of the service treatment records suggests that the Veteran's GSW entered through the anterior portion of the left leg and exited through the posterior portion of the leg, thereby potentially affecting both Muscle Group XI and Muscle Group XII. Service treatment records further reflect that the Veteran was admitted to Saint Albans Naval Hospital on December 29, 1969 where he stayed until he was eventually discharged to duty on February 12, 1970. While a handful of these records are associated with the claims file, however, many appear to be outstanding. Since these records could clarify the exact nature of the GSW, to include which muscle group or groups it affects, the Board finds that these records should be obtained. 38 C.F.R. § 3.159(c)(2). In addition, as to the left knee, in the June 2009 rating decision, the RO granted service connection for left knee degenerative joint disease, assigning a 10 percent rating from September 8, 2003, under Diagnostic Codes 5003-5260, applicable to degenerative arthritis and limited flexion. 38 C.F.R. § 4.71a. The Veteran then appealed both the effective date and the initial rating. In the March 3, 2014 rating decision, a 20 percent evaluation was assigned effective September 8, 2003, and the diagnostic codes applicable to his left knee degenerative joint disease were changed to Diagnostic Codes 5010-5262, applicable to traumatic arthritis and impairment of the tibia and fibula. In the March 24, 2014 rating decision, an earlier effective date was awarded and a 10 percent rating was assigned beginning May 29, 1998. As to the ankle, in the March 3, 2014 rating decision, the RO granted a separate 10 percent rating for left ankle degenerative joint disease as secondary to the service-connected left leg muscle injury, assigning an effective date of September 1, 2004. In the narrative portion of the rating decision, as well as a March 2014 supplemental statement of the case, the basis for denying an initial compensable rating prior to September 1, 2004 was that although there was a February 2004 private treatment record showing limited dorsiflexion, impairment of the ankle/foot dorsiflexion was already contemplated in the newly assigned Diagnostic Code 5312. Hence, since the present appeal involving the knee arises from a May 1998 claim for service connection, the appeal period for the left knee disability spans more than 18 years. While much of the evidence in the claims file pertains to the period after 2004, there is little evidence prior to that period and even after 2004, there are gaps in time where there is little evidence relating to these disabilities. Thus, in this case, and in light of the numerous potentially applicable diagnostic codes, the Board finds that a retrospective examination should be obtained which fully describes the severity of all impairment related to the service-connected left leg GSW, and left and ankle degenerative joint disease. See Chotta v. Peake, 22 Vet. App. 80, 85 (2008). Accordingly, the case is REMANDED for the following action: 1. VA should obtain the clinical records of hospitalization at Saint Albans Naval Hospital dating from December 1969 to February 1970. If the AOJ cannot locate such records, it must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain the records would be futile. The AOJ must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claim. The claimant must then be given an opportunity to respond. 2. Thereafter, provide a VA examiner with access to the Veteran's electronic claims file and request that the VA examiner examine the Veteran and provide a retrospective medical opinion addressing the severity of the Veteran's left leg GSW from June 2006, left knee degenerative joint disease since May 1998 and left ankle degenerative joint disease since September 2004. (a) As to the left leg GSW, after fully describing the nature of the initial GSW injury, the examiner must fully describe the severity of all impairment arising from the GSW from June 2006 to the present. The examiner should specifically address whether the GSW in service affected Muscle Group XI, Muscle Group XII, and/or any other muscle group and should identify all symptomatology, and the severity thereof, arising from the GSW. (b) As to the left knee, the examiner must fully describe the severity of all impairment arising from left knee degenerative joint disease from May 1998 to the present, to include, but not limited to, a discussion of any limited range of motion, instability, or symptomatology arising from any associated meniscal tears. (c) As to the left ankle, the examiner should fully describe the severity of any impairment, to include whether there was any "marked" or "moderate" limited motion of the ankle joint. See 38 C.F.R. § 4.71a, Diagnostic Code 5271 (2015). To the extent feasible, the examiner's assessment of the severity of the above disabilities should include time periods where there is little evidence in the claims file. A complete rationale for any opinions expressed must be included in the examination report. If an opinion cannot be provided without resort to speculation, it must be noted in the opinion report, and a rationale should be provided for that conclusion. 3. After the development requested has been completed, the AOJ should review any report to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the AOJ must implement corrective procedures at once. 4. After completing any additional development deemed necessary, readjudicate the claims. If any benefit requested on appeal is not granted to the Veteran's satisfaction, the appellant and his representative should be furnished a supplemental statement of the case, which addresses all of the evidence obtained after the issuance of the last supplemental statement of the case, and provided an opportunity to respond. The case should then be returned to the Board for further appellate consideration, if in order. 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). _________________________________________________ S. S. TOTH 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).