Citation Nr: 1751818 Decision Date: 11/13/17 Archive Date: 11/22/17 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 an initial rating in excess of 20 percent for deep nonlinear scars, shrapnel wound to the right lower extremity (hereinafter referred to as "deep nonlinear RLE scars"). 2. Entitlement to disability ratings in excess of 10 percent prior to May 6, 2014, and in excess of 30 percent as of May 6, 2014, for painful scars, status post shrapnel wound, right lower extremity (hereinafter referred to as "painful RLE scars"). REPRESENTATION Veteran represented by: Military Order of the Purple Heart of the U.S.A. ATTORNEY FOR THE BOARD Jane R. Lee, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1967 to November 1970. He is in receipt of the Purple Heart Medal, among other service awards and decorations. This appeal is before the Board of Veterans' Appeals (Board) from December 2010 and September 2014 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In December 2010, the RO continued a 10 disability rating for painful RLE scars, specifically scars, shrapnel wound to right lower extremity (thigh, knee, calf). In September 2014, the RO increased the disability rating for painful RLE scars to 30 percent, effective May 6, 2014; and granted service connect for deep nonlinear RLE scars, assigning an initial 20 percent rating, effective May 6, 2014. In August 2015, the Board remanded the issue of painful RLE scars. In a January 2016 rating decision, the Appeals Management Center (AMC) granted the Veteran's claim for service connection for a right knee disability that was also on appeal and such award represents a complete grant of the benefits sought. In December 2016, the Board remanded both issues remaining on appeal for further evidentiary development. The appeal is again REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). While substantial compliance is required, strict compliance is not. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (citing Dyment v. West, 13 Vet. App. 141, 146-47 (1999)). The December 2016 Board remand instructed the AOJ to 1) obtain any pertinent outstanding records, 2) provide a VA examination to assess the Veteran's service-connected right lower extremity shell fragment wound scars, 3) undertake any other development deemed warranted, and 4) readjudicate the claims. The AOJ obtained updated VA treatment records and readjudicated the claims in a May 2017 Supplemental Statement of the Case (SSOC). However, the AOJ failed to provide a complete VA examination in accordance with the December 2016 remand instructions. Specifically, the Board stated that the "RO or AMC must ensure the examiner provides all information required for rating purposes, to include photographs of the scars," which should include the measurement instrument in the photographs, if possible. Unfortunately, although a March 2017 Scars/Disfigurement Disability Benefits Questionnaire was completed, photographs of the scars were not included for review by the Board. Accordingly, the case is REMANDED for the following actions: 1. Provide the Veteran with a VA examination to accurately assess his service-connected deep nonlinear RLE scars and painful RLE scars along with unretouched color photographs. The entire claims file, including a copy of the remand, should be made available to, and be reviewed by, the VA examiner. All appropriate tests, studies, and consultation should be accomplished and all clinical findings should be reported in detail. **The RO or AMC must ensure the examiner provides all information required for rating purposes, TO INCLUDE UNRETOUCHED COLOR 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.** After reviewing the claims file and examining the Veteran, the examiner is asked to address the following: a) How many scars are in the right lower extremity? b) How many of the right lower extremity scars are unstable or painful, and how many are both unstable and painful? c) If there are any deep and nonlinear scars, indicate the total area of such scars. If unretouched color photographs of the service-connected scars cannot be taken for any reason, please explain why. A complete rationale should be provided. 2. After determining whether any additional development is necessary, and ensure that unretouched color photographs of the scars are included with the examination report and uploaded to VBMS, readjudicate the Veteran's increased rating claims for deep nonlinear RLE scars and for painful RLE scars. If the benefits sought on appeal are not granted, the Veteran and his representative should be furnished an SSOC and provided an appropriate opportunity to respond before the claims file is returned to the Board for further appellate action. The Veteran 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. B. MAYS Veterans Law Judge, Board of Veterans' Appeals