Citation Nr: 1625391 Decision Date: 06/23/16 Archive Date: 07/11/16 DOCKET NO. 11-17 677 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a disability rating in excess of 20 percent for residuals of a gunshot wound to the left buttock, with degenerative joint disease of the hip joint and atrophy of muscle group XVII (with retained foreign body). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Y. Hawkins, Counsel INTRODUCTION The Veteran served on active duty with the U.S. Army from May 1966 to May 1968. Among other honors, he was awarded the Purple Heart and Combat Infantryman Badge. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In March 2014, the Veteran testified before the undersigned Veterans Law Judge (VLJ) during a Board video conference hearing. A transcript of the hearing has been associated with the claims file. In March 2014, the Board remanded the claim to the Agency of Original Jurisdiction (AOJ) for additional evidentiary development, to include affording the Veteran a VA examination. Although there has been substantial compliance with the Board's remand directives (see Stegall v. West, 11 Vet. App. 268, 271 (1998)), another remand is necessary to insure that the Veteran is afforded every possible opportunity to substantiate his claim. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND As noted above, in March 2014, the remanded the Veteran's claim to afford him a VA examination. At the time, his claim of entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities was also before the Board. The purpose of the examination was to determine the severity of the Veteran's residuals of a gunshot wound to the left buttock, with degenerative joint disease of the hip joint and atrophy of muscle group XVII (with retained foreign body) and to obtain an opinion as to whether, by reason of all of his service-connected disabilities (including a left knee disability), he was precluded from substantially gainful employment. The Veteran's left buttock/left hip disability has been rated under 38 C.F.R. § 4.73, Diagnostic Code 5317, which pertains to injuries to Muscle Group XVII, composed of pelvic girdle group 2, including (1) gluteus maximus, (2) gluteus medius and (3) gluteus minimus. Among other things, this muscle group controls extension of the hip and abduction of the thigh. Although the Board requested an orthopedic examination, because his disability chiefly involves a muscle injury (the 2014 orthopedic examination revealed essentially normal range of motion for the left hip), a VA muscle examination must be performed. In addition, as the last VA treatment reports of record are dated in July 2011, updated treatment records involving the Veteran's treatment for his left buttock/left hip disability must be obtained and associated with the record. Accordingly, the case is REMANDED for the following action: 1. Obtain all available VA treatment records pertaining to the Veteran's residuals of a gunshot wound to the left buttock, with degenerative joint disease of the hip for the period beginning August 2011 and associate with the record. Any negative reply must be noted in the record. 2. Thereafter, schedule the Veteran for a VA examination of MUSCLE GROUP XVII to determine the current severity of his service-connected left buttock/hip disability. (a) All tests deemed necessary should be conducted and all clinical findings should be reported in detail to allow for rating the disability of Muscle Group XVII. To this end, the examination report must include a description of the type of injury, history and complaints of injury, to include whether the Veteran has any of the cardinal signs and symptoms of muscle disability, and objective findings, to include whether there is indication on palpation of loss of deep fasciae, muscle substance, atrophy, loss of power or lowered threshold of fatigue, or impaired tonus, or normal firm resistance of muscles compared to the right side. (b) The examiner should indicate whether the gunshot wound injury involved any nerve or vascular damage. Despite the fact that the Veteran has been awarded TDIU, the examiner should indicate the impact of the Veteran's injury to Muscle Group XVII and whether this service-connected disability ALONE would affect his ability to perform the physical requirements of work and keep up with work requirements. The examiner should also comment on whether/how the disability affects his activities of daily living. It is noted that "cardinal signs and symptoms" of muscle disability are loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination and uncertainty of movement. The examiner must provide a complete rationale for all opinions expressed. 3. Review the examination report to insure that it is responsive to the remand directives. Thereafter, readjudicate the Veteran's claim. If the claim on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished with a supplemental statement of the case and given an opportunity to respond thereto. 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). _________________________________________________ M. TENNER 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).