Citation Nr: 1800272 Decision Date: 01/04/18 Archive Date: 01/19/18 DOCKET NO. 17-15 939 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to an initial compensable rating for foreign bodies of the neck due to a shell fragment wound. 2. Entitlement to an initial compensable rating for residual scarring associated with foreign bodies of the neck due to a shell fragment wound. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Martha R. Luboch, Associate Counsel INTRODUCTION The Veteran had active duty service in the U.S. Navy from March 1966 to January 1970 with service in the Republic of Vietnam aboard river patrol craft. The Veteran was awarded the Combat Action Ribbon and Purple Heart Medal. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which granted service connection for foreign bodies of the neck due to shell fragment wounds as well as residual scarring. The Veteran testified before the undersigned Veterans Law Judge at a videoconference hearing in August 2017. A transcript of the hearing has been associated with the claims file. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Although the additional delay is regrettable, the Board finds that a remand is necessary in this case. At his Board hearing, the Veteran provided testimony that less than five years prior, he was told by Dr. G. C. that it was not advisable to remove the shrapnel from the Veteran's neck, even with today's technology. Records from Dr. G. C. formerly with the University of Cincinnati Hospital have not been obtained. Because the Veteran has identified outstanding private treatment records related to the issues on appeal, a remand is necessary. Additionally, at his hearing the Veteran reported that he has pain as well as "a very hard problem about looking upward. It's much more restrictive, and I can't hold [my neck] up or look in a position for more than a couple of minutes, if that." The Veteran is currently rated under Diagnostic Code 5323, which relates to the muscles of the side and back of the neck. However, because the Veteran has stated that he also has limited motion as a result of residual foreign bodies of the neck, the Board finds that a VA examination is necessary to determine the extent of the limitation of motion caused by the Veteran's service-connected disability. The Veteran presented testimony, written statements, and copies of medical articles obtained from the Internet relevant to the risk to general health including an inability to undergone magnetic resonance imaging because of retained metallic fragments near vital organs and in soft tissues. The Veteran contended that this risk should be a factor in his disability compensation. This factor is not contemplated in the rating criteria for spinal and soft tissue injuries. Further, the Veteran advanced testimony that his neck is stiff and sore "half the time" and over the years he has experienced tight intense headaches toward the back of his head and around the side, which he believes is related to his shrapnel wounds. Therefore, a VA examination is necessary to determine whether the Veteran has a migraine disability related to his service-connected shell fragment wound disability. Additionally, at his hearing, the Veteran testified that he would be seeing his physician from the Dayton VA Medical Center related to his service-connected disabilities. Therefore, on remand, any outstanding VA treatment records should be obtained. Accordingly, the case is REMANDED for the following action: 1. The AOJ should request that the Veteran provide the names and addresses of any healthcare providers who have provided treatment for his shrapnel wounds, to specifically include Dr. G.C. formerly with the University of Cincinnati Hospital. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. All attempts to obtain outstanding treatment records must be documented in the Veteran's claims file. 2. The AOJ should additionally obtain any outstanding VA medical records. 3. After obtaining any outstanding VA and private treatment records, the AOJ should afford the Veteran a VA examination for his residual foreign bodies of the neck due to a shell fragment wound disability. The examiner should evaluate the Veteran's neck range of motion in degrees of flexion and extension and any functional loss due to pain or painful motion as well as weakness, excess fatigability, incoordination, or pain on movement, swelling or atrophy. The examiner must address at which point pain sets. Any additional functional loss should be expressed in terms of the degree of additional limitation of motion. In addition, with respect to range of motion testing, this must be conducted on active and passive motion and in weight-bearing and nonweight-bearing conditions (pursuant to 38 C.F.R. § 4.59 (2017) and Correia v. McDonald, 28 Vet. App. 158 (2016)). If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should record the Veteran's reports of the extent of limitation of motion during flare-ups. The examiner must specifically consider the Veteran's reports and opine whether the reports are consistent with the extent of disability found on examination. Finally, the examiner should review the Veteran's contentions and medical articles in the file regarding the risk to general health from retained metal fragments and inability to undergo magnetic resonance imaging and provide an opinion addressing the applicability of this material to the Veteran's specific case and the degree of additional disability, functional loss, and threat to health imposed by the foreign metallic bodies in this case. 4. Schedule the Veteran for an appropriate VA examination to determine whether he has a current headache/migraine disability and if so: (a) Whether it is at least as likely as not that the Veteran's disability was caused by his service-connected shrapnel wound disability; and (b) Whether it is at least as likely as not that the Veteran's disability was aggravated by his service-connected shrapnel wound disability. 5. After the above actions have been completed, the RO must review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action must be implemented. If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. 6. Thereafter, readjudicate the issues on appeal to include consideration of whether a referral for consideration of an extra-schedular rating by the Compensation and Pension Service is warranted to address the Veteran's contention that compensation is warranted for overall risk to health from retained foreign metallic bodies. If the benefits sought on appeal remain denied, in whole or in part, the Veteran and his representative should be provided with a Supplemental Statement of the Case and be afforded reasonable opportunity to respond. The appellant 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).