Citation Nr: 1645355	
Decision Date: 12/02/16    Archive Date: 12/19/16

DOCKET NO.  12-27 857	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri


THE ISSUES


1.  Entitlement to a rating in excess of 30 percent for painful scars, status post shell fragment wound, right lower extremity. 

2.  Entitlement to a rating in excess of 20 percent for deep nonlinear scars, status post shell fragment wound, right lower extremity.


REPRESENTATION

Appellant represented by:	Military Order of the Purple Heart of the U.S.A.


ATTORNEY FOR THE BOARD

N. Snyder, Counsel


INTRODUCTION

The Veteran served on active duty from November 1967 to November 1970.  He served in the Republic of Vietnam, during the Vietnam Era, and is a recipient of the Purple Heart Medal. 

This appeal comes before the Board of Veterans' Appeals (Board) from rating decisions by the Department of Veterans Affairs (VA), Regional Office (RO) in St. Louis, Missouri.  In August 2015, the Board remanded these issues and the issue of service connection for a right knee disability.  In a January 2016 rating decision, the Appeals Management Center (AMC) granted the Veteran's claim for service connection for a right knee disability.  

The record before the Board consists of electronic records within Virtual VA and the Veterans Benefits Management System (VBMS).


REMAND

In August 2015, the Board remanded the appeal for additional development, notably determining the measurements of the scarring.  The Board specifically requested photographs of the scarring and, if possible, the instrument used to determine the measurement of the scarring.  Although a VA examination was conducted, photographs of the scarring were not taken.  Therefore, remand is required.  In this regard, the Board notes that compliance with a remand is not discretionary and failure to comply with the terms of a remand necessitates another remand for corrective action.  Stegall v. West, 11 Vet. App. 268 (1998).

Accordingly, the case is REMANDED to the RO or the AMC in Washington, D.C. for the following actions:

1. The RO or the AMC should undertake appropriate development to obtain any outstanding records pertinent to the issues on appeal.  If any requested records are not available, the record should be annotated to reflect such and the Veteran notified in accordance with 38 C.F.R. § 3.159(e).

2.  Then, the Veteran should be afforded a VA examination by an examiner with sufficient expertise to accurately assess his service-connected right lower extremity shell fragment wound scars.  All pertinent evidence of record must be made available to and reviewed by the examiner.  Any indicated studies should be performed.

The RO or AMC must ensure the examiner provides all information required for rating purposes, to include photographs of the scars.  The examiner should include the measurement instrument in the photographs to enable Board corroboration of the actual scar measurements, if possible.

3.  The RO or AMC should also undertake any other development it determines to be warranted.

4.  Finally, the RO or AMC should readjudicate the issues on appeal.  If the benefits sought are not granted to the Veteran's satisfaction, the RO or AMC should furnish to the Veteran and his representative a supplemental statement of the case and the requisite opportunity to respond.

By this remand, the Board intimates no opinion as to any final outcome warranted.

The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame.  See Kutscherousky v. West, 12 Vet. App. 369 (1999).

This REMAND must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board or 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).




_________________________________________________
Shane A. Durkin
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) (2016).