Citation Nr: 1806814 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 09-31 300 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a separate compensable rating for a muscle group injury, as a residual of service-connected pelvic fractures. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD B. P. Keeley, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Air Force from October 2007 to July 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. This matter was remanded to the RO for further development in July 2016. Finding that its remand directives were not complied with, the Board again remanded this matter in May 2017. As will be discussed below, the Board finds that another remand is required. The Board notes that in a December 2017 memorandum opinion, the United States Court of Appeals for Veterans Claims (Court) vacated and remanded the portion of the Board's July 2016 decision that pertains to the matters of an increased disability rating for the Veteran's left and right hip disabilities. Those matters are currently being developed by the RO and are not presently before the Board. This is a paperless appeal located on the Veterans Benefits Management System (VBMS), Virtual VA paperless claims processing system, and Caseflow Reader. The Board has reviewed the electronic records maintained these systems to ensure consideration of the totality of the evidence. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran maintains that she is entitled to a separate compensable rating for a muscle group injury, as a residual of service-connected pelvic fractures. The Board notes that the provisions of 38 C.F.R. § 4.67 (2017) provide that the variability of residuals following pelvic bone fractures necessitate rating on specific residuals, faulty posture, limitation of motion, muscle injury, painful motion of the lumbar spine, manifest by muscle spasm, mild to moderate sciatic neuritis, peripheral nerve injury, or limitation of hip motion. In the July 2016 remand, the Board referenced numerous statements from the Veteran's May 2014 VA examination and observed that "[t]he Veteran has not received a VA examination that specifically looks at the nature and etiology of any possible muscle injuries as a residual of the service-connected pelvic fractures." The Veteran was afforded a VA muscle injuries examination in December 2016. It was noted that the Veteran does not have a diagnosed muscle injury. The Board notes that under diagnostic testing, no response was provided. The examiner noted that the Veteran demonstrates guarding and reported pain and discomfort with bilateral hip range of motion. The examiner then noted that pain is a subjective symptom and that there are no clinical signs of an organic basis for bilateral hip discomfort with range of motion. The Board notes that no range of motion testing was performed with this examination and there are, in fact, no notes indicating any type of physical examination was performed. The examiner referred to the July 2016 decision and quoted the passage "...this rating action provides a full and final resolution to the claim for increase associated with residuals of pelvic fracture involving the bilateral hips without need for further or additional action." An addendum opinion to the December 2016 VA examination was obtained in May 2017. It was noted that the Veteran was scheduled for a one hour examination. The examiner stated that a physical examination and imaging of the hips were normal and that the Veteran does not have any muscle group injury related to or as a result of her service-connected pelvis fractures. The examiner noted that the Veteran stated that "[she has] had this (pointed to mid-anterior abdominal) pain for 10 years and nobody can figure it out. It feels like [she is] being stabbed with an ice pick." The examiner also referenced the Veteran stating that "nobody seems to know why everytime [she sneezes she] get[s] a sharp pain at the bottom of [her] spine...and [her] back hurts on and off." An addendum opinion to the May 2017 addendum opinion was obtained in November 2017. The VA examiner stated there is no speculation in the opinion that the Veteran has no muscle group injury related to or as a result of her service-connected pelvis fractures. The examiner stated that the opinions rendered are evidence-based. The examiner stated that "[t]he findings of the 2014 VA HIP and Thigh conditions, Back and Bones examination reports are irrelevant with regard to the current exam findings as cited in the current C&P Examination" from December 2016. A Board remand confers upon an appellant the right to compliance with that order. Stegall v. West, 11 Vet. App. 268, 271; D'Aries v. Peak, 22 Vet. App. 97, 105 (2008) (holding that there must be substantial compliance with the terms of a Court or Board remand). Additionally, when VA undertakes to provide a Veteran with an examination, that examination must be adequate for VA purposes. Barr v. Nicholson, 21 Vet. App. 303 (2007). Here, the above three VA examination opinions are conclusory, without any rationale, and indicate the Veteran was not afforded a thorough examination, as directed by the July 2016 and May 2017 Board remands. As such, they are inadequate and the Board finds that a remand with a different examiner is required. Accordingly, the case is REMANDED for the following action: 1. Obtain all outstanding VA treatment records. All records obtained must be associated with the claims file. 2. After, and only after, completion of step one above, schedule the Veteran to undergo a VA examination with a different examiner to assess the nature and etiology of any muscle injuries as a residual of her service-connected pelvic fractures. The examiner must review the Veteran's claims file and elicit a full history from the Veteran regarding the symptoms of her claimed muscle injuries as a residual of her service-connected pelvic fractures. All necessary tests and studies should be accomplished, and all pertinent symptoms and clinical findings should be reported in detail. After the record review, and a thorough examination and interview of the veteran, the VA examiner should offer opinions addressing the following: Whether it is at least as likely as not (i.e., probability of 50 percent or greater) that any diagnosed muscle injury is had its clinical onset during active service or is otherwise related to any in service disease, event, or injury. Whether it is as likely as not (i.e., probability of 50 percent or greater) that any diagnosed muscle injury is caused or aggravated by the Veteran's service-connected pelvic fractures. The examiner's attention is invited to the December 2014 VA examination report which indicated: that muscle strength testing revealed active movement against some resistance bilaterally for hip flexion; that deep tendon reflexes were "hyperactive without clonus" for the bilateral knees; and tenderness on the lower sacrocoggyeal area at the left side and the bilateral upper anterior abdomen along the lower rib cage. The examiner's attention is also invited to the following statements from the Veteran: "I have had this (pointed to mid-anterior abdominal) pain for 10 years and nobody can figure it out. It feels like I am being stabbed with an ice pick"; and "nobody seems to know why everytime I sneeze I get a sharp pain at the bottom of my spine...and my back hurts on and off." All opinions provided must be thoroughly explained, and a complete and detailed rationale for any conclusions reached should be provided (a bare conclusory statement will be deemed inadequate). The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. The examiner must address the lay statements form the Veteran regarding her claimed disabilities. It is not sufficient to base an opinion on a mere lack of documentation of complaints in the service or post-service treatment records. 3. If, after completing the requested actions and all additional development deemed warranted, the benefits sought remain denied, furnish to the Veteran a Supplemental Statement of the Case and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. 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). _________________________________________________ K. J. ALIBRANDO 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).