Citation Nr: 20032500 Decision Date: 05/08/20 Archive Date: 05/08/20 DOCKET NO. 09-20 961 DATE: May 8, 2020 REMANDED Entitlement to an evaluation in excess of 30 percent from March 13, 2006, for fragment wound residuals of the right upper thigh with loss of tissue and atrophy is remanded. Entitlement to an evaluation in excess of 10 percent from March 13, 2006, for shell fragment wound residuals of the right foot is remanded. REASONS FOR REMAND The Veteran had active service from October 1966 to October 1968. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a September 2006 rating decision, wherein the Agency of Original Jurisdiction (AOJ) increased the Veteran’s rating for his service-connected fragment wounds of the right foot to 10 percent, effective March 13, 2006 (the date of the Veteran’s claim for an increased rating). Additionally, in an October 2017 rating decision, the AOJ increased the Veteran’s rating for his service-connected fragment wound of the right upper thigh to 30 percent, effective March 13, 2006. As those increases do not represent the maximum benefit for those disabilities, the Veteran’s appeal was not abrogated, and the issues remain on appeal. AB v. Brown, 6 Vet. App. 35 (1993). In March 2012, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. The Board remanded these matters in May 2013. In February 2016, the Board issued a decision denying the issues on appeal. The Veteran appealed that decision to the U. S. Court of Appeals for Veterans Claims (Court). In October 2016, the Court issued an Order granting a Joint Motion for Remand (Joint Motion) and remanding the appeal for action consistent with the terms of the Joint Motion. In March 2017 and December 2017, the Board remanded these matters for additional development. 1. Entitlement to an evaluation in excess of 30 percent from March 13, 2006, for fragment wound residuals of the right upper thigh with loss of tissue and atrophy is remanded. 2. Entitlement to an evaluation in excess of 10 percent from March 13, 2006, for shell fragment wound residuals of the right foot is remanded. In the December 2017 Remand, the Board instructed the AOJ to request the same VA examiner (who conducted both an April 2012 VA examination as well as drafted the September 2013 and April 2017 VA addendum medical opinions) provide the Veteran a new VA examination that fully and adequately addressed all of the manifestations of his service-connected right upper thigh and right foot fragment wound residuals, specifically the current cardinal signs of the service-connected right upper thigh and right foot muscle injuries. Instead, the AOJ obtained yet another clarification opinion in February 2018 from that VA examiner concerning the inconsistencies in her earlier April 2012, September 2013, and April 2017 examination reports/medical opinions. The AOJ then obtained a May 2019 VA Scars/Disfigurement Disability Benefits Questionnaire (DBQ) that did not adequately address the current severity of the Veteran’s service-connected wound fragment residuals of the right upper thigh and right foot, to include the cardinal signs of his service-connected muscle injuries. As there has not been substantial compliance with the Board’s previous December 2017 remand directives regarding these matters, another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). Finally, updated VA treatment records from Loma Linda VAMC for the time period from April 2017 to the present should be obtained and properly associated with the record. 38 U.S.C. § 5103A(c) (2012); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). The matters are REMANDED for the following actions: 1. Obtain updated treatment records pertaining to the Veteran’s service-connected fragment wound residuals of the right upper thigh and right foot from Loma Linda VAMC for the time period from April 2017 to the present. 2. Schedule the Veteran for an examination (specifically a VA Muscle Injuries DBQ and a VA Scars/Disfigurement DBQ) by an appropriate clinician(s) to determine the current severity of his service-connected fragment wound residuals of the right upper thigh with loss of tissue and atrophy AND shell fragment wound residuals of the right foot. The electronic claims file must be made available to the examiner, and the examiner must specify in the report that the file has been reviewed. The examiner should provide a full description of the disabilities and report all signs and symptoms necessary for evaluating the Veteran’s fragment wounds of the right upper thigh and right foot under the applicable rating criteria. Based on the examination, the examiner should specify the cardinal signs and symptoms of muscle disability attributable to the Veteran’s service-connected fragment wounds of the right upper thigh and right foot for each muscle group affected. For VA rating purposes, the cardinal signs and symptoms of muscle disability are loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination, and uncertainty of movement. 38 C.F.R. § 4.56(c). For each muscle group affected, the examiner should classify the level of disability as slight, moderate, moderately severe, or severe, as described in 38 C.F.R. § 4.56(d). The examiner should also identify any scars associated with the Veteran’s service-connected fragment wounds of the right upper thigh and the right foot. For each scar, the examiner should provide measurements and describe all scarring characteristics, to include whether the scar is painful on examination and/or whether the scar results in functional impairment of the part affected. In doing so, the examiner should acknowledge and discuss the findings in the April 2012, September 2013, April 2017, February 2018, and May 2019 VA examination reports/VA addendum medical opinions. A complete rationale for all requested opinions must be provided. If the examiner cannot provide a requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The Veteran is hereby advised that failure to report for any scheduled VA examination without good cause shown may have adverse effects on his claims. 38 C.F.R. § 3.655 (2019). 3. After completing the above actions and any other necessary development, the claims on appeal must be re-adjudicated, taking into consideration all relevant evidence associated with the evidence of record since the January 2020 supplemental statement of the case (SSOC). If any 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. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. D. Deane, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.