Citation Nr: 1801469 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 12-19 362 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to a disability rating in excess of 30 percent for a right femur disability. 2. Entitlement to a disability rating in excess of 10 percent for a bilateral hip disability. 3. Entitlement to a total disability rating due to individual unemployability (TDIU). REPRESENTATION Veteran represented by: Robert V. Chisholm, Attorney WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD David R. Seaton, Associate Counsel INTRODUCTION The Veteran served in the military from January 1961 to January 1965, from March 1965 to September 1980, and from February 1981 to October 1983. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. These matters were previously before the Board, and, in June 2015, the Board remanded the issue of entitlement to TDIU for further development. In April 2016, the Court of Appeals for Veterans Claims (Court) remanded the remaining issues for further development. In July 2017, the Board remanded these matters for further development. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Right Femur At issue is whether the Veteran is entitled to a disability rating in excess of 30 percent for a right femur disability. In June 2015, the Board found that the Veteran was not entitled to a disability rating in excess of 30 percent concluding that his right femur disability was moderately severe in nature. 38 C.F.R. § 4.73, Diagnostic Code 5313. Nevertheless, the Court vacated that decision and remanded the matter, finding that the Board had not adequately taken into consideration 38 C.F.R. §§ 4.55, 4.56. Namely, the Board did not consider whether the Veteran was entitled to a combined evaluation of muscle groups acting upon a single ankylosed joint, nor did the Board explain why the Veteran's disability should not be considered severe despite the fact that medical evidence of record indicated that he had a history of a compound fracture, and the fact that the Board had conceded muscle atrophy, weakness and damage to the right thigh. In July 2017, the Board was unable to evaluate the previously mentioned claims based on the record, and the matter was remanded for a VA examination in order to evaluate the severity of the Veteran's right femur disability. The Veteran was provided a VA examination in August 2017, but the examination was not completely responsive to the questions posed in the remand instructions in that the examiner failed to answer the specific questions that were asked by the Board and instead only completed the standard DBQ form. Therefore, this matter must be remanded for a medical opinion in order to ensure compliance with the Board's remand instructions. Stegal v. West, 11 Vet. App. 268 (1998). Hips At issue is whether the Veteran is entitled to an increased disability rating for a bilateral hip disability. The Board finds that this issue is inextricably intertwined with the above issue in light of the physiology of the hips and the surrounding muscle groups for which the Veteran has been assigned the above disability rating. Additionally in assigning the above disability rating, the Court specifically instructed the Board to consider the interaction of the Veteran's hips and surrounding muscle groups in evaluating whether a combined evaluation of muscle groups acting upon a single ankylosed joint is necessary. Therefore, this matter must be remanded as well. Harris v. Derwinski, 1 Vet. App. 180 (1991). In a September 2017 appellate brief, the Veteran's representative alleged that the August 2017 VA examination did not adequately consider the Veteran's reports of lay symptoms in evaluating the level of additional functional impairment of the Veteran's bilateral hip disability. Additionally, the examiner should address the contentions raised by the Veteran's representative in the September 2017 appellate brief. TDIU At issue is whether the Veteran is entitled to TDIU. The Board finds that the issue is inextricably intertwined with the above issue, and it must be remanded as well. See Harris. Accordingly, the case is REMANDED for the following action: 1. Return the Veteran's claims file to the examiner who conducted the August 2017 VA examination, or if he is not available, to another examiner. If an opinion cannot be provided without an examination, one should be provided. The examiner should: A) consider the definitions of moderately severe and severe muscle injuries contained in the VA regulations and explain which the Veteran's femur condition more closely approximates, providing an explanation as to which physical findings lead to the conclusion and why. A moderately-severe disability of muscles contemplates: i) Type of injury: Through and through or deep penetrating wound by small high velocity missile or large prolonged infection, or sloughing of soft parts, and intermuscular scarring. (ii) History and complaint: Service department record or other evidence showing hospitalization for a prolonged period for treatment of wound. Record of consistent complaint of cardinal signs and symptoms of muscle disability (loss of power, weakness, lowered threshold of fatigue, fatigue pain, impairment of coordination and uncertainty of movement) and, if present, evidence of inability to keep up with work requirements. (iii) Objective findings: Entrance and (if present) exit scars indicating track of missile through one or more muscle groups. Indications on palpation of loss of deep fascia, muscle substance, or normal firm resistance of muscles compared with sound side. Tests of strength and endurance compared with sound side demonstrate positive evidence of impairment. A severe disability of muscles contemplates: Type of injury: Through and through or deep penetrating wound due to high-velocity missile, or large or multiple low velocity missiles, or with shattering bone fracture or open comminuted fracture with extensive debridement, prolonged infection, or sloughing of soft parts, intermuscular binding and scarring. History and complaint: Service department record or other evidence showing hospitalization for a prolonged period for treatment of wound. Record of consistent complaint of cardinal signs and symptoms of muscle disability (loss of power, weakness, lowered threshold of fatigue, fatigue pain, impairment of coordination and uncertainty of movement) worse than those shown for moderately severe muscle injuries, and, if present, evidence of inability to keep up with work requirements. Objective findings: Ragged, depressed and adherent scars indicating wide damage to muscle groups in missile track. Palpation shows loss of deep fascia or muscle substance, or soft flabby muscles in wound area. Muscles swell and harden abnormally in contraction. Tests of strength, endurance, or coordinated movements compared with the corresponding muscles of the uninjured side indicate severe impairment of function. If present, the following are also signs of severe muscle disability: (A) X-ray evidence of minute multiple scattered foreign bodies indicating intermuscular trauma and explosive effect of the missile. (B) Adhesion of scar to one of the long bones, scapula, pelvic bones, sacrum or vertebrae, with epithelial sealing over the bone rather than true skin covering in an area where bone is normally protected by muscle. (C) Diminished muscle excitability to pulsed electrical current in electrodiagnostic tests. (D) Visible or measurable atrophy. (E) Adaptive contraction of an opposing group of muscles. (F) Atrophy of muscle groups not in the track of the missile, particularly of the trapezius and serratus in wounds of the shoulder girdle. (G) Induration or atrophy of an entire muscle following simple piercing by a projectile. B ) Address whether there are multiple muscle groups that are impacted by the Veteran's healed compound fracture of his femur. C) Explain whether a compound fracture of the femur should be considered akin to "shattering bone fracture or open comminuted fractured with extensive debridement" when considering a muscle injury. D) Consider the fact that in a September 2017 appellate brief, the Veteran's representative alleged that the Veteran did not evaluate the Veteran's lay reports of pain, weakness, fatigability, incoordination, intermittent throbbing pain in the hips and legs, significant difficulty walking more than 25 yards, and flare-ups with unbearable pain. The examiner should specifically discuss what effect if any of the Veteran's reported or observed additional functional impairment has on his range of motion. E) Consider the definition of sedentary employment included in the September 18, 2017 Third Party correspondence, and explain whether the Veteran would be able to complete sedentary employment with his service connected hip, thigh, and hearing disabilities. 2. Then, readjudicate the claim on appeal. If the benefit sought is not granted, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate opportunity to respond thereto before returning the case to the Board, if in order. The Veteran has the right to submit additional evidence and argument on the 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. §§ 5109B, 7112. _________________________________________________ MATTHEW W. BLACKWELDER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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).