Citation Nr: 1753061 Decision Date: 11/17/17 Archive Date: 11/22/17 DOCKET NO. 10-03 258 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to an evaluation in excess of 10 percent for injury to Muscle Group XIX, associated with residuals of shell fragment wounds to the abdomen and right groin area. REPRESENTATION Veteran represented by: Robert V. Chisholm, Attorney at Law ATTORNEY FOR THE BOARD B. J. Komins, Associate Counsel INTRODUCTION The Veteran had active military service in the Army from August 1966 to July 1968. His awards and decorations include the Combat Infantryman Badge and the Purple Heart Medal. This matter comes before the Board of Veterans' Appeals (Board) following rating decisions in November 2008 and January 2009 by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan, which denied, in part, an evaluation in excess of 10 percent for residuals of shell fragment wounds and service connection for a right hip disorder secondary to the residuals of shell fragment wounds. In November 2013 and March 2016, the Board remanded the case for additional evidentiary development. In October 2016, the Board in part denied a rating in excess of 10 percent for injury to muscle group XIX. The Veteran appealed the decision to the U.S. Court of Appeals for Veterans Claims (Court) A September 2017 order, the Court implemented a September 2017 Joint Motion for Partial Remand (JMPR), vacating that portion of the October 5, 2016 Board decision that denied the Veteran's claim of entitlement to an evaluation in excess of 10 percent for injury to Muscle Group XIX. As such, this issue is again before the Board. In correspondence dated October 17, 2017, the Veteran's newly designated representative requested a copy of the Board's October 11, 2017 correspondence that notified the Veteran of the return of this portion of his appeal to the Board and advised that any new evidence or argument must be submitted within 90 days or until the Board issued a decision in the appeal, whichever comes first. The representative requested that a decision not be issued before the end of the period to permit the submission of new evidence and argument. As this remand is not a decision of the Board and is incompliance with the JPMR to which the representative was a party, the representative will have ample time to submit new evidence and argument. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Veteran contends that he is entitled to an evaluation in excess of 10 percent for injury to Muscle Group XIX, associated with residuals of shell fragment wounds to the abdomen and right groin area. In the JMPR, the parties asserted that the Board erred by not ensuring that the April 2016 VA examination complied with the Board's March 2016 remand directives. The JMR noted that the Board relied upon findings of the April 2016 VA examiner, which neither addressed the specific March 2016 remand directives nor acknowledged the findings of the Veteran's private examiner regarding residual muscle injuries. The April 2016 VA examiner took note of the Veteran's persistent pain, but found that there was no other residual effect from the shell fragment wounds. Even though the Veteran reported flare-ups lasting from one day to four days, the April 2016 VA examiner failed to address any functional impairment due to weakened movement, excess fatigability, or incoordination or any functional impact during flare-ups. Moreover, the April 2016 VA examiner did not opine as to the specific degree of impairment of the residuals of the right lower abdomen/groin shrapnel injury in terms of slight, moderately severe, and severe. The examiner also did not opine as to any orthopedic residuals related to the abdomen and right groin area; specifically, the examination did not include details as to relevant range of motion findings or otherwise address that aspect of the Board's March 2016 remand. Furthermore, as noted in the JMR, the April 2016 VA examiner did not address the relevant private examiner's findings in the June 2011 and December 2013 statements as to whether there was evidence of muscle residuals during the appeal period. In light of the JMPR's findings, the Board finds that a new VA examiner is warranted to ensure compliance with the March 2016 Board remand directives. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination by a qualified physician, other than the physician who conducted the April 2016 examination, to determine the current severity of all residuals of the fragment wound of the abdomen and right groin area. The Veteran's claims folders, to include a copy of this Remand, must be made available to and reviewed by the examiner in conjunction with the examination report. Any indicated studies should be conducted. Specifically, the examiner should identify all residuals attributable to the Veteran's service-connected fragment wound of the abdomen and right groin area, to include any muscle, orthopedic, and neurological residuals. The examination report must include pertinent ranges of motion, with notations as to the degree of motion at which the Veteran experiences pain. The extent of any weakened movement, excess fatigability, and incoordination on use should also be described by the examiner. The examiner should assess the additional functional impairment due to weakened movement, excess fatigability, or incoordination in terms of the degree of additional range of motion loss. If not feasible to do so to any degree of medical certainty, then the examiner should so indicate. The examiner should also express an opinion concerning whether there would be additional functional impairment on repeated use or during flare-ups. The examiner should assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss. If not feasible to do so to any degree of medical certainty, then the examiner should so indicate. The examiner should specifically discuss the severity of any muscle impairment of the fragment wound of the abdomen and right groin area in terms of slight, moderate, moderately severe, and severe, including any muscle impairment of the affected Muscle Groups. The examiner should also state whether there are any neurological residuals associated with the Veteran's service-connected fragment wound of the abdomen and right groin area, and identify any nerves involved. If so, the examiner should also specifically discuss the extent, if any, of paralysis of the nerves involved. A complete rationale should be provided for any opinion expressed. The examiner should reconcile any opinion with all other clinical evidence of record and the Veteran's and other lay contentions. The examiner is advised that the Veteran is not only credible but also competent to report his symptoms and history. Such reports, including those of continuity of symptomatology, must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, she/he must provide an explanation for such rejection. If the examiner is unable to reach an opinion as to any of the information requested above without resorting to speculation, she or he should explain the reasons for such inability, and comment on whether any further evidence or information would be useful in rendering the opinion being sought. 2. After completing the development requested above, and any other development deemed necessary, re-adjudicate the issue on appeal. If the benefit sought is not granted in full, the AOJ should furnish the Veteran and her attorney with a Supplemental Statement of the Case and afford an opportunity to respond. The claims file should then be returned to the Board for further appellate review. 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). _________________________________________________ J. W. FRANCIS 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) (2017).