Citation Nr: 18159204 Decision Date: 12/19/18 Archive Date: 12/18/18 DOCKET NO. 14-15 221 DATE: December 19, 2018 REMANDED Entitlement to a rating in excess of 20 percent for residuals of a gunshot wound (GSW) of the right side with retained foreign bodies, adhesions and limitation of motion of the right arm is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1965 to September 1967. In October 2015, the Board denied the Veteran’s claim for an increased rating for residuals of a GSW of the right side with retained foreign bodies, adhesions, and limitation of motion of the right arm. The Veteran appealed that determination to the United States Court of Appeals for Veterans Claims (Court). In a July 2016 Order, the Court vacated that portion of the Board decision and remanded the matter to the Board for development consistent with the parties’ Joint Motion for Partial Remand (Joint Motion). In February 2017 and October 2017, the Board remanded the claim again. The case has since been returned to the Board for further appellate review Entitlement to a rating in excess of 20 percent for residuals of a GSW of the right side with retained foreign bodies, adhesions and limitation of motion of the right arm is remanded. In the Joint Motion, the parties agreed that the Board erred in not ensuring that VA obtained an adequate VA examination in connection with the Veteran’s increased rating claim for residuals of a GSW of the right side with retained foreign bodies, adhesions, and limitation of motion of the right arm. In this regard, the Veteran was provided with VA examinations related to his claim in August 2011 and September 2014. The parties to the Joint Motion noted that the evidence of record contradicted the August 2011 VA examiner’s findings that the Veteran had never been diagnosed with a muscle injury, did not have a penetrating muscle injury, had no scars associated with muscle injuries, and that there was no x-ray evidence of retained metallic fragments. In addition, the September 2014 VA examiner only completed a Disability Benefits Questionnaire (DBQ) for the Veteran’s right shoulder, and did not perform an examination of the Veteran’s muscles. As such, the claim was remanded in February 2017 to obtain and adequate VA examination for rating the Veteran’s residuals of a GSW of the right side with retained foreign bodies, adhesions, and limitation of motion of the right arm. An April 2017 note stated that the Veteran’s requested examination had been cancelled due to his failure to report to the examination. According to a comment section in the record, the Veteran cancelled appointments that were initially scheduled for April 11, 2017, as well as the appointments that had been rescheduled for April 18, 2017. However, as the claims file did not include any letter notifying the Veteran of the date and time of the scheduled examinations, the Board found that it was unclear whether the Veteran was properly notified of the April 2017 examinations, and remanded the claim again in October 2017 to give the Veteran another opportunity to appear for a VA examination in connection with his claim. The Veteran was scheduled for another VA muscle injuries examination in January 2018. Notifications in the claims file show that the Veteran had refused the examination. Specifically, the note stated that the Veteran’s wife had reported that the Veteran was unable to travel, and that he had dementia and his anxiety increased when out of his element. Furthermore, in the November 2018 Appellant’s Post-Remand Brief, the Veteran’s representative noted that, due to the Veteran’s mental health issue, he was not capable of addressing any questioning that would have been a part of his VA examination. Based on the evidence noted above, the Board finds that an in-person examination of the Veteran is not possible. Therefore, to ensure that there is a complete record upon which to decide the appellant's claim, so that he is afforded every possible consideration, an appropriate VA physician should be asked to provide a medical opinion on the current severity of the Veteran’s residuals of a GSW of the right side with retained foreign bodies, adhesions and limitation of motion of the right arm, based on a review of the record. The matter is REMANDED for the following action: 1. Updated treatment records should be obtained and added to the claims file/e-folder. 2. Following completion of the above, obtain a medical opinion from an appropriate VA examiner to determine the current severity and manifestations of the Veteran’s service-connected residuals of a GSW of the right side with retained foreign bodies, adhesions, and limitation of motion of the right arm. The claims file must be made available to the examiner. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran’s service treatment records, post-service medical records, and assertions. A clear explanation for all opinions based on specific facts for the case as well as relevant medical principles is needed. The examiner should report all signs and symptoms noted in the record, necessary for rating the Veteran’s disability under the rating criteria as indicated by the DBQ pertaining to muscle injuries and the DBQ pertaining to shoulder and arm conditions. Regarding the DBQ for muscle injuries, the examiner should address the degree of injury to all muscle groups involved, to include whether there is more than one muscle group involved in the same anatomical region, and what functional abilities are affected. To do this, the examiner must review the records related to the original injury in service and identify the muscles or muscle groups impacted at that time. The examiner should also comment as to whether the disability associated with each affected muscle group would be considered moderate, moderately severe, or severe, to include commenting on the presence or absence of the cardinal signs and symptoms of muscle disability, including loss of power, weakness, lowered threshold of fatigue, fatigue pain, impairment of coordination, and uncertainty of movement. The examiner should also discuss the etiology of any neurological manifestations, as well as any resulting functional impairment. Regarding the DBQ for shoulder and arm conditions, the examiner should note, if available, previous findings for range of motion in degrees and range of motion in (1) active motion, (2) passive motion, (3) weight-bearing, and (4) nonweight-bearing, for both the joint in question and any paired joint. The examiner should also indicate whether there is any evidence of ankylosis in the record. He or she should additionally state whether there is any evidence of impairment of the humerus and impairment of the clavicle or scapula, and if so, provide the findings necessary under the rating criteria for such manifestations. Objective evidence of pain, excess fatigability, incoordination, and weakness should also be noted, as should any additional disability due to these factors The examiner must also report any neurological findings due to the Veteran’s disability. In addition, the examiner should state whether there is any evidence in the record of any scars related to the Veteran’s disability. If so, he or she should provide the findings necessary under the rating criteria for scars. 3. After completion of the above and any other development deemed necessary, review the expanded record and readjudicate the issue on appeal. If the benefit on appeal remains denied, the Veteran and his representative should be furnished an appropriate SSOC and be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD F. Yankey, Counsel