Citation Nr: 1755062 Decision Date: 11/30/17 Archive Date: 12/07/17 DOCKET NO. 10-20 360 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to a rating in excess of 10 percent for residuals of a mine fragment wound (MFW) of the right arm muscle group VIII. (The issue of entitlement to service connection for a neurological disorder of the right upper extremity, to include as secondary to service-connected MFW residuals, is the subject of a separate Board decision.) REPRESENTATION Appellant represented by: Marine Corps League WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD J. D. Deane, Counsel INTRODUCTION The Veteran served on active duty from December 1966 to January 1970. His awards and decorations include the Combat Action Ribbon and the Purple Heart Medal with one star. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision rendered in December 2008 by the Department of Veterans Affairs Regional Office in Huntington, West Virginia. The Veteran was afforded a hearing before a Decision Review Officer (DRO) in July 2009 and August 2010. Transcripts of the hearings are associated with the electronic claims file. In July 2012, the Veteran testified at a Board hearing at the RO before one of the undersigned Veterans Law Judges. A transcript of the hearing is associated with the electronic claims file. In February 2013 and May 2013, the Board remanded this matter for additional development and readjudication. In a November 2014 rating decision, the RO denied entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU). The Veteran did not appeal that adjudication and has not reasserted he was unemployable due to his service-connected disabilities since that time. Thus, the issue of entitlement to a TDIU is not inferred. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009); see also VAOGCPREC 06-96, 61 Fed. Reg. 66749. In February 2017, the Veteran testified at a Board hearing at the RO before another one of the undersigned Veterans Law Judges. A transcript of this hearing is also associated with the electronic claims file. Testimony on the issue of entitlement to a rating in excess of 10 percent for MFW residuals of the right arm muscle group VIII was again taken at this hearing. As noted above, the Veteran testified about the same issue at two separate hearings before two different Veterans Law Judges, both of which are deciding this case. Accordingly, this appeal must now be addressed by a panel, which includes the Veterans Law Judges who presided at the hearings. 38 C.F.R. § 20.707. In that regard, the Board acknowledges that claimants are entitled to an opportunity for a hearing before every panel member who will ultimately adjudicate the appeal. See Arneson v. Shinseki, 24 Vet. App. 379, 386 (2011). During the February 2017 Board hearing, the Veteran was presented the opportunity to have a hearing before a third Veterans Law Judge. He waived his right on the record (later transcribed in the hearing transcript) to have a hearing before the third member of the panel addressing the appeal. During the February 2017 Board hearing, the Veteran reported increased symptomatology related to his service-connected right forearm scar. His testimony appears to signify an intent to file an increased rating claim for that disability. The AOJ has not notified the Veteran and his representative of the information necessary to complete the appropriate application form. Therefore, the Board does not have jurisdiction over that issue, and it must be referred to the AOJ for appropriate action, as claims must be filed on the proper VA standardized form. See 38 C.F.R. § 3.155(b)(3) (as in effect since March 24, 2015). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Due to Veteran's assertions of increased symptomatology during his February 2017 Board hearing, such as increased right arm/hand fatigue, increased weakness, tremors, cramping, and circulatory disturbance, associated with his MFW residuals of the right arm muscle group VIII since he was last provided a VA examination in November 2014, the Board finds that a remand is required in order to afford the Veteran an adequate VA examination. See Weggenmann v. Brown, 5 Vet. App. 281 (1993) (VA has a duty to provide an examination when there is evidence that the disability has worsened since the previous examination). Finally, the record contains VA treatment records from the Huntington VA Medical Center (VAMC) most recently dated in November 2014. On remand, updated VA treatment records from the Huntington VAMC, to include all associated outpatient clinics, dated since November 2014, should be obtained and associated with the electronic claims file. See 38 U.S.C.A. § 5103A(c); 38 C.F.R. § 3.159(c)(2); see also Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Accordingly, the case is REMANDED for the following actions: 1. The AOJ must obtain updated treatment records pertaining to the Veteran's service-connected MFW residuals of the right arm muscle group VIII from Huntington VAMC, to include all associated outpatient clinics, for the time period from November 2014 to the present and associate them with the record. 2. Thereafter, schedule the Veteran for a VA examination to determine the current nature and severity of his service-connected MFW residuals of the right arm muscle group VIII. The electronic claims file must be made available to the examiner for review and the examiner must note that the claims file was reviewed. Any indicated tests and studies must be completed. All symptoms and manifestations of the MFW residuals of the right arm muscle group VIII must be noted in the report, including the level of functioning of muscle group VIII in the right upper extremity, such as extension of wrist, fingers, and thumb and abduction of thumb as well as the level of functioning in the muscles arising mainly from external condyle of humerus, to include extensors of carpus, fingers, and thumb; supinator. The severity of all symptoms and impairment must be described in detail. Rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). The Veteran is hereby advised that failure to report for any scheduled VA examination without good cause shown may have adverse effects on his claim. 38 C.F.R. § 3.655 (2016). 3. The AOJ must review the record to ensure that the foregoing requested development has been completed. In particular, review any VA examination report or medical opinion to ensure that it is responsive to and in compliance with the directives of this REMAND and if not, implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 4. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken above, the claim on appeal must be readjudicated, taking into consideration all relevant evidence associated with the evidence of record since the July 2014 supplemental statement of the case (SSOC). If the benefit on appeal remains denied, a SSOC must be provided to the Veteran and his representative. After the Veteran has had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The appellant 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 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. ZISSIMOS M. C. GRAHAM Veterans Law Judge Veterans Law Judge Board of Veterans' Appeals Board of Veterans' Appeals __________________________________________ MICHAEL MARTIN 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).