Citation Nr: 21000293 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 05-14 709 DATE: January 5, 2021 REMANDED Entitlement to disability ratings in excess of 30 percent for residuals of service-connected shell fragment wounds of the chest is remanded. Entitlement to disability ratings in excess of 10 percent for residuals of service-connected shell fragment wounds of the right wrist is remanded. Entitlement to a disability rating exceeding 20 percent for right upper extremity nerve damage associated with residuals of service-connected shell fragment wounds is remanded. Entitlement to disability ratings in excess of 10 percent for residual scarring associated with service-connected shell fragment wounds is remanded. Entitlement to a disability rating exceeding 10 percent for left upper extremity nerve damage associated with service-connected shell fragment wounds is remanded.   REASONS FOR REMAND The Veteran served on active duty from October 1964 to September 1966. This appeal comes to the Board of Veterans’ Appeals (Board) from a November 2004 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge at a June 2007 hearing. The Board remanded these matters to the Agency of Original Jurisdiction (AOJ) in October 2007, September 2015, and June 2017 for additional development including obtaining outstanding records, affording the Veteran adequate VA examinations, and ensuring that the AOJ substantially complied with the Board’s remand directives. Following the June 2017 remand order, the AOJ granted the Veteran separate compensable disability ratings for neurological disabilities of the upper extremities associated with the Veteran’s service-connected residuals of shell fragment wounds. See November 2019 rating decision. However, the AOJ otherwise denied the Veteran entitlement to increased disability ratings for residuals affecting the joints, muscles, and skin. See November 2019 Supplemental Statement of the Case. As indicated in the Board’s prior remand orders, the Board is considering rating all manifestations of the service-connected shell fragment wounds as a part of the appeal. After reviewing the evidence of record, the Board finds it is necessary to remand these matters to the AOJ once more to ensure it substantially complies with the Board’s prior remand directives and affords the Veteran adequate examinations of his disabilities. In pertinent part, the Board directed the AOJ to make attempts to obtain outstanding VA treatment records from the Brooklyn VA Medical Center and provide the Veteran with adequate notice under 38 C.F.R. § 3.159(e) if the AOJ could not obtain the records including an opportunity for the Veteran to provide the records. The Board also directed the AOJ to obtain current and adequate VA examinations of the Veteran’s service-connected residuals of shell fragment wounds to the right wrist, left index finger, and right chest including manifestations affecting the joints, nerves, muscles, and skin. The Board also directed the AOJ to explicitly note that it reviewed and considered VA treatment records from 2005 to February 2006 on its Supplemental Statement of the Case. After reviewing the record, the Board finds the AOJ did not substantially comply with these remand directives. In regard to the outstanding records, the AOJ did send the Veteran notice of its attempts to obtain private records including records from First Hospital Panamericano as well as follow-up notices requesting the Veteran submit the private records. As a result of its diligence in making multiple attempts to obtain the records, the AOJ successfully obtained and associated those records with the claims file. In contrast, while the AOJ mentioned in the first notice that it received a negative response from the Brooklyn VA Medical Center, it did not document additional attempts to obtain the records and provide the Veteran with adequate notice in accordance with 38 C.F.R. § 3.159(e). See October 2017 Subsequent Development Letter to the Veteran. Specifically, the AOJ did not provide the Veteran with an explanation of the efforts VA made to obtain the records from Brooklyn VA Medical Center, a description of any further action VA will take regarding the claim, including, but not limited to, notice that VA will decide the claim based on the evidence of record unless the claimant submits the records VA was unable to obtain, and a notice that the claimant is ultimately responsible for providing the evidence. See 38 C.F.R. § 3.159(e)(1) (2019). On remand, the AOJ should provide the notice in accordance with 38 C.F.R. § 3.159(e)(1) (2019). The Board also finds the AOJ should afford the Veteran additional VA examinations of his service-connected residuals of shell fragment wounds including wounds to his chest, right wrist, and left index finger including manifestations affecting the joints, muscles, nerves and skin. While the AOJ did obtain additional examinations after the Board’s prior remand, the Board finds they are inadequate to rate the severity of the Veteran’s disabilities because they do not adequately address inconsistencies between the examinations and treatment records over time. The Board also finds these examinations do not provide enough information for the Board to rate the Veteran’s disabilities of the nerves and muscles as slight, mild, moderate, moderately severe, or severe under applicable rating criteria in light of the inconsistencies and deficient rationale for the opinions. See, e.g., 38 C.F.R. §§ 4.73, 4.124a. In regard to specific inconsistencies in the examinations, while some of the VA examinations indicate the Veteran is right hand dominant, other VA examinations as well as several treatment records identify that the Veteran is left hand dominant. See June 2018 VA Muscle Injuries Examination (indicating right hand dominance); November 2015 VA Hand and Finger Conditions examination (indicating left hand dominance). The examination opinions also differ as to whether the Veteran has disabilities affecting muscle groups I, II, or both I and II as a result of shell fragment wounds to the chest. See June 2018 VA Muscle Injuries Examination (indicating both muscle groups I and II are affected); January 2016 VA examiner’s addendum opinion (indicating only group II is affected); August 2009 VA joints examination (indicating only group I is affected). While some of these examinations indicate the Veteran does not use assistive devices, other examinations as well as the Veteran’s treatment records indicate he has used assistive devices including wrist braces for many years. The AOJ should obtain additional opinions from medical professionals addressing these inconsistencies and other pertinent inconsistencies. Additionally, a new examination of the skin should address pertinent changes to the rating criteria for the skin effective August 13, 2018, and the AOJ should consider rating the Veteran’s skin disabilities under the newer criteria or older criteria (if more favorable). The AOJ should also ensure that the examiners support their characterizations of the disabilities by adequate discussion of the evidence with supporting rationale explaining why the examiner finds the disability is slight, mild, moderate, moderately severe, or severe under pertinent rating criteria (e.g. for the muscles and nerves). See, e.g., 38 C.F.R. §§ 4.73, 4.124a. In addition to the above, the AOJ should ensure that if it denies any of the Veterans claims in full or in part, it issues a Supplemental Statement of the Case based on a review of the totality of the evidence of record. In order to ensure compliance with prior remand directives on this point, the AOJ should explicitly note on the Supplemental Statement of the Case that it reviewed the VA treatment records from 2005 February 2006. See June 2017 Board remand directives. The matters are REMANDED for the following action: 1. The AOJ should contact the Veteran and all current representatives and request their assistance in identifying any outstanding relevant records. The AOJ should make reasonable attempts to obtain all identified outstanding records and associate them with the Veteran’s claims file. 2. The AOJ should provide the Veteran notice regarding the October 18, 2015 negative response from the Brooklyn VA Medical Center consistent with 38 C.F.R. § 3.159(e) (2019). The notice must contain the (i) identity of the records VA was unable to obtain, (ii) an explanation of the efforts VA made to obtain the records, (iii) a description of any further action VA will take regarding the claim, including, but not limited to, notice that VA will decide the claim based on the evidence of record unless the claimant submits the records VA was unable to obtain; and (iv) a notice that the claimant is ultimately responsible for providing the evidence. See 38 C.F.R. § 3.159(e)(1) (2019). 3. The AOJ should review the claims file and ensure that all Spanish language documents are translated into English and that the translations are associated with the Veteran’s claims file. 4. After associating all identified outstanding relevant records with the Veteran’s claims file (including English translations), the AOJ should schedule the Veteran for examinations by appropriate clinicians to determine the current severity of his service-connected residuals of shell fragment wounds including wounds to the chest, left index finger, and right wrist. The AOJ should ensure that the examiners provide a full description of the disabilities and report all signs and symptoms necessary for evaluating the Veteran’s disabilities under the pertinent rating criteria including criteria for the joints, muscles, nerves, and skin (considering the changes to the rating criteria effective August 13, 2018 if more favorable than the older applicable criteria). The AOJ should ensure that when assessing functional loss under pertinent rating criteria, the examiners test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiners must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The AOJ should ensure that the examiners address any inconsistencies between their findings and the other evidence of record. For example, to the extent that the examiners find the Veteran’s dominant extremity is the right extremity, the examiners should provider rationale explaining the finding with reference to conflicting evidence from the treatment records and other VA examinations indicating that the Veteran’s dominant extremity is the left extremity. See June 2018 VA Muscle Injuries Examination (indicating right hand dominance); November 2015 VA Hand and Finger Condition examination (indicating left hand dominance). In regard to examinations of the muscles, the AOJ should ensure the examiner clearly identifies every muscle group that is affected as a result of the Veteran’s service-connected shell fragment wounds and address inconsistencies in the record. For example, while some records and examinations indicate the Veteran’s chest injury wound resulted in an injury to muscle group I, others indicate the injury was to muscle group II. See June 2018 VA Muscle Injuries Examination (indicating both muscle groups I and II are affected); January 2016 VA examiner’s addendum opinion (indicating only group II is affected); August 2009 VA joints examination (indicating only group I is affected). While the most recent VA muscle injuries examination indicates both muscle groups I and II are affected, the AOJ only assigned ratings for one of these groups at a time during the period at issue. In regard to examinations of the muscle and nerves, the AOJ should ensure that the VA examiners adequately identify whether the injuries are slight, mild, moderate, moderately severe, or severe according to the applicable rating criteria. See, e.g., 38 C.F.R. §§ 4.73, 4.124a. The AOJ should ensure that the examiners provide adequate rationale for their opinions on the severity of the disability (e.g. an explanation for why the examiner rated the injury as mild or moderate and not severe). If an examiner is unable to provide an opinion on these matters, the examiner must state whether the inability to render an opinion is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 5. After completing the above action and any other necessary development, the claims must be readjudicated. If a claim remains denied, a Supplemental Statement of the Case must be provided to the Veteran and current representatives. The AOJ should explicitly note on the Supplemental Statement of the Case that it reviewed and considered the VA treatment records from 2005 to February 2006. After the Veteran has had adequate opportunity to respond, the appeal must be returned to the Board for appellate review. C. TRUEBA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael Duffy, Associate 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.