Citation Nr: 1625746 Decision Date: 06/27/16 Archive Date: 07/11/16 DOCKET NO. 09-02 452 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to increased disability ratings for residuals of a gunshot wound (GSW) to the left buttock, status-post laparotomy and colostomy, currently rated as 20 percent disabling prior to April 6, 2006, and 40 percent disabling since. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Shauna M. Watkins, Counsel INTRODUCTION The Veteran had active military service in the United States Army from September 1988 to September 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2005 rating decision by the St. Louis, Missouri, Department of Veterans Affairs (VA) Regional Office (RO). By that rating action, the RO assigned an increased 20 percent disability rating to the service-connected residuals of a GSW to the left buttock, status-post laparotomy and colostomy, effective November 3, 2004 - the date VA received the Veteran's claim for increased compensation for this disability. The Veteran appealed the RO's June 2005 rating action to the Board. Jurisdiction of the appeal currently resides with the Chicago, Illinois RO. In March 2012, the Board remanded this appeal for further development In a September 2014 decision, the Board granted an increased disability rating of 40 percent, for the service-connected residuals of a GSW to the left buttock, status-post laparotomy and colostomy. In a November 2014 rating decision, the Agency of Original Jurisdiction (AOJ) made the increase effective April 6, 2006. This decision created staged ratings. The Veteran appealed the September 2014 Board denial of a disability rating in excess of 40 percent to the United States Court of Appeals for Veterans Claims (Court). In a December 2015 Memorandum Decision, the Court vacated the Board decision and remanded the appeal to the Board for further adjudication. The Court did not disturb the 40 percent grant. This appeal was processed using the VBMS paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record, in addition to the Veteran's Virtual VA paperless claims file. The issue of entitlement to education benefits for the Veteran's children has been raised in an April 2016 VA 21-526Z Form, but has not been adjudicated by the AOJ. Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2015); see 79 Fed. Reg. 57,660 (Sept. 24, 2014) (codified in 38 C.F.R. Parts 3, 19, and 20 (2015)). The appeal is REMANDED to the AOJ. VA will notify the Veteran if further action is required. REMAND In March 2012, the Board remanded for, in pertinent part, a VA muscle examination to determine the current severity of the service-connected residuals of a GSW to the left buttock, status-post laparotomy and colostomy. While other VA examinations were provided upon remand, a VA muscle examination was never provided. Accordingly, upon remand, a VA muscle examination must be afforded for the Veteran. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (the Veteran is entitled, as a matter of law, to compliance with remand directives); see, too, Dyment v. West, 13 Vet. App. 141, 146-47 (1999). One of the bases for the Court's decision vacating the previous Board adjudication of this appeal was essentially that the VA examinations did not comply with the Board's remand instructions. The Veteran is hereby notified that it is his responsibility to report for the examinations 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 claim. 38 C.F.R. §§ 3.158, 3.655 (2015). Accordingly, the case is REMANDED for the following actions: 1. Schedule the Veteran for VA muscle, orthopedic, genitourinary, gastrointestinal, and neurological examinations by an appropriate specialist to evaluate the current severity of the service-connected residuals of a GSW to the left buttock, status-post laparotomy and colostomy. The examiners should conduct all necessary tests and evaluate the current severity of all manifestations of these conditions, to include any orthopedic, muscular or neurological manifestations. All indicated tests, studies and any additional necessary VA examinations should be conducted. The claims folder, including this remand, must be sent to the examiners for review; consideration of such should be reflected in the completed examination reports or in an addendum. The examiner(s) should note the presence and severity of any signs and symptoms of muscle disability, such as: loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination, uncertainty of movement, entrance and exit scars, intermuscular scarring, loss of deep fascia, loss of muscle substance, impairment of muscle tonus, impaired endurance, abnormal muscle swelling and hardness in contraction, X-ray evidence of minute multiple scattered foreign bodies, scar adhesion, diminished muscle excitability, muscle atrophy, adaptive contraction of an opposing muscle group, or muscle induration. The examiner(s) should conduct tests of strength, endurance, or coordinated movements as compared with the corresponding muscle of the uninjured side. The ranges of left thigh motion should be reported in degrees. The examiner(s) should note the point (in degrees), if any, at which pain occurs. The examiner(s) should also provide an opinion as to whether there is additional limitation of motion of the left thigh due to weakened movement, excess fatigability, incoordination, pain, or flare-ups. The examiner(s) should express this opinion in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. The examiner(s) should specify the presence of any left hip ankylosis and, if present, characterize it as favorable or unfavorable. The examiner(s) should specify any nerves affected by the residuals of a shell fragment wound of the left buttock and provide an opinion as to the severity of any associated paralysis, neuritis or neuralgia. Genitourinary and gastrointestinal manifestations of the gunshot wound residuals should be examined and findings reported in detail. If the examiner(s) rejects the Veteran's reports of symptomatology and impact on his daily life, the examiner should provide a reason for doing so. Any opinion expressed by the VA examiner(s) should be accompanied by reasons. If medical literature is relied upon, the examiner should cite the material utilized. If a VA examiner is unable to offer an opinion without resorting to speculation, the examiner should state whether the inability is due to the limits of the examiner's medical knowledge, the limits of medical knowledge in general; or there is additional evidence, which if obtained, would permit the opinion to be provided. 3. The AOJ should consider whether separate ratings are warranted for parts of the disability on appeal. 4. If any benefits sought on appeal remain denied, issue an SSOC. Then return the case to the Board, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matter 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 or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board is appealable to the Court. 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).