Citation Nr: 21065651 Decision Date: 10/27/21 Archive Date: 10/27/21 DOCKET NO. 17-31 716 DATE: October 27, 2021 REMANDED Entitlement to service connection for degenerative disc disease (DDD) of the thoracolumbar spine, to include as secondary to service-connected disabilities, is remanded. Entitlement to a rating in excess of 10 percent for multiple fragment wounds of the right leg is remanded. Entitlement to a rating in excess of 20 percent for left shoulder residuals is remanded. Entitlement to a rating in excess of 10 percent for gunshot fragment wounds of the right wrist is remanded. Entitlement to a rating in excess of 10 percent for left elbow residuals is remanded. Entitlement to a rating in excess of 20 percent for multiple fragment wounds of the chest is remanded. Entitlement to a compensable rating for bilateral hearing loss is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from December 1964 to December 1968. These matters come before the Board of Veterans Appeals (Board) on appeal from September 2013 and April 2017 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). These issues were previously remanded by the Board in August 2019. The Board finds that to fully comply with the prior remand requests and to ensure compliance with the duty to assist, remand is unfortunately again needed. See Stegall v. West, 11 Vet. App. 268 (1998). The Veteran's representative noted in a May 2021 communication that the Veteran is 75 years old. As his age is confirmed by the record, this case has been advanced on the docket. 38 U.S.C. § 7107(a)(2); 38 C.F.R. § 20.900(c). During the course of the appeal, service connection for a right wrist strain with arthritis secondary to the gunshot fragment wounds of the right wrist, and scars, upper and lower extremity and trunk secondary to multiple fragment wounds, were granted. The Veteran has appealed the ratings and effective dates assigned; however, these claims are in a separate appeal stream that has not yet been certified to the Board. As such, the Board does not have jurisdiction over those claims and will not consider them herein. 1. Entitlement to service connection for DDD of the thoracolumbar spine, to include as secondary to multiple fragment wounds of the right leg, is remanded. The Veteran has contended that his thoracolumbar spine DDD is the direct result of his active service, it is secondary to his service-connected multiple fragment wounds of the chest, or it is secondary to his service-connected multiple fragment wounds of the right leg. There are two VA examinations of record addressing the claim. In April 2013, the Veteran stated that his back pain began in 1967 and had gotten worse over time. The examiner diagnosed thoracolumbar DDD and determined that the claimed condition was less likely than not proximately due to or the result of his service-connected multiple fragment wounds of the chest. In support, the examiner stated that the Veteran's service separation examination revealed shrapnel wounds to the chest but that it had no relationship with the back problems he currently had. No rationale was provided. Another examination was conducted in December 2019. Degenerative arthritis of the spine was diagnosed. The Veteran reported that he was injured in 1966 when exposed to explosions and was thrown onto the ground with multiple shrapnel injuries all over his body. He stated that his real back pain began in the 1980s when he was first diagnosed with DDD of the thoracolumbar spine. The examiner determined that the claimed condition was less likely than not incurred in or caused by service. In support, the examiner listed relevant pieces of medical evidence in the claims file. He also stated that the service treatment records (STRs) were silent for back complaints. Any back condition from falling due to the blast was acute only. There was insufficient medical documentation and no evidence of chronicity of care. As such, a nexus was not established. The examiner further stated that according to literature review, advanced age was one of the strongest risk factors associated with osteoarthritis. It was more likely that his thoracolumbar DDD was related to the natural aging process. Additionally, multiple fragment wounds of the chest due to the in-service explosion in 1966 were not related to DDD of the thoracolumbar spine. The examiner stated that some of the Veteran's shrapnel injuries caused localized pain, such as in his left shoulder, right wrist, and right leg, but were not affecting the back condition in any way. The shrapnel in the chest wall caused no symptoms and were in a different anatomical location from the back. Further, none of the shrapnel injuries caused aggravation of the back disability. No rationale was provided regarding aggravation. The Board finds that an addendum VA medical opinion is needed before a decision may be rendered on the claim. Although the most recent examiner stated that none of the shrapnel injuries caused aggravation of the back disability, no rationale was provided for that opinion. Additionally, the Veteran's representative specifically contended in a May 2021 communication that the shrapnel in his right leg could lead to lumbar arthritis. Accordingly, an addendum opinion should be obtained upon remand to ensure all theories of contention are addressed and supported by adequate rationale. 2. Entitlement to a rating in excess of 10 percent for multiple fragment wounds of the right leg is remanded. At a December 2019 VA knee and lower leg conditions examination conducted pursuant to the prior remand, the Veteran reported that when standing on his right leg for a prolonged period, he felt a tingling sensation and weakness in the leg. Numbness in the leg has been noted elsewhere in the record, as well. Under 38 C.F.R. § 4.55, a muscle injury rating will not be combined with a peripheral nerve paralysis rating of the same body part, unless the injuries affect entirely different functions. If the muscle injury and nerve damage affect entirely different functions of the same body part, separate evaluations may be assigned; if they affect the same functions of the same body part, the higher evaluation of the two will be assigned to the disability. Here, no peripheral nerves VA examination has been conducted to determine whether there is nerve damage resulting from the right leg fragment wounds and whether the muscle injury and the nerve damage affect the same functions of the right leg. As additional neurological manifestations of the service-connected disability have been contended, the Board finds that a VA peripheral nerves examination is needed before a decision may be rendered on the claim. Further, the December 2019 VA muscle injuries examiner did not indicate the severity of the right leg (Muscle Group XI) injury. An addendum was obtained in October 2020, and although the examiner addressed frequency of symptomology, the examiner again did not indicate the severity of the injury. As such, a new VA muscle injuries examination is needed to determine the severity of the Muscle Group XI injury. 3. Entitlement to a rating in excess of 20 percent for left shoulder residuals is remanded. Similarly, the Veteran reported numbness involved with his left shoulder residuals at a December 2019 VA shoulder and arm conditions examination. As no VA peripheral nerves examination has been conducted to determine whether there is associated nerve damage and whether the muscle injury and the nerve damage affect the same functions of the left shoulder, a VA peripheral nerves examination is needed before a decision may be rendered on the claim. Further, the December 2019 muscle injuries examination and the October 2020 addendum again did not address severity of the Muscle Group I-IV injury. As such, a new VA muscle injuries examination is also needed. 4. Entitlement to a rating in excess of 10 percent for gunshot fragment wounds of the right wrist is remanded. The December 2019 muscle injuries examination and October 2020 addendum did not address severity of the right wrist (Muscle Group VII) injury. As such, a new examination is needed before a decision may be rendered on the claim. 5. Entitlement to a rating in excess of 20 percent for multiple fragment wounds of the chest is remanded. Although the Veteran is in receipt of the highest schedular rating available under 38 C.F.R. § 4.73, DC 5321, neither the December 2019 muscle injuries examination nor the October 2020 addendum addressed the severity of his chest (Muscle Group XXI) injury. Further, in a May 2021 communication, the Veteran's representative stated that imaging conducted with the December 2019 examination mentioned only clarity of the right lung. The x-ray indicated that the left chest had radiopaque density "probably related to trauma." Because the Veteran was concerned about shrapnel moving from his chest muscles into his lungs, he requested that a full CT scan be conducted to obtain the detail needed to determine whether his chest injury had worsened. He also reported discomfort in his chest wall. To ensure all aspects of the service-connected disability are accounted for, the Board finds that a new examination with appropriate imaging is needed before a decision may be rendered on the claim. 6. Entitlement to a rating in excess of 10 percent for left elbow residuals is remanded. The Veteran has previously reported shrapnel in the left elbow/forearm associated with his left elbow residuals. However, the December 2019 VA muscle injuries examiner did not note the elbow injury nor evaluate the associated Muscle Group, V-VI. A VA elbow and forearm conditions examination was conducted which determined range of motion but did not address the underlying shrapnel injury. The examiner found there was no diagnosis associated with the elbow itself but no determinations regarding the shrapnel injury were made. Further, x-rays were not conducted of the left elbow/forearm. The Board finds that a new VA muscle injuries examination is needed which addresses the underlying injury and any associated symptomology. 7. Entitlement to a compensable rating for bilateral hearing loss is remanded. Pursuant to the prior remand, a VA examination was scheduled regarding the Veteran's claim for an increased rating for bilateral hearing loss in December 2019. It was noted in the claims file that the Veteran did not attend the examination. In a May 2021 communication, his representative clarified that the Veteran had contacted VA to inform them of a change of residence and the need to schedule the examination at a VA facility closer to his new address. Treatment records reflected the Veteran's relocation, as well. However, no attempts were made to reschedule the examination at a different facility. The Board finds that good cause has been demonstrated for the missed examination. See 38 C.F.R. § 3.655. Upon remand, the RO should coordinate with the Veteran to reschedule a new examination at a nearby facility. The matters are REMANDED for the following action: 1. Associate with the claims file outstanding VA treatment records, specifically to include records since July 2020. 2. Obtain an addendum medical opinion from an appropriate VA clinician regarding the Veteran's claimed thoracolumbar spine DDD. The clinician is asked to review the claims file and note that such review took place. The need for an in-person examination is left to the discretion of the clinician selected to write the opinion. Following a review of the record, the clinician is asked to determine: (a.) Whether it is at least as likely as not that the Veteran's thoracolumbar spine DDD was the result of his active service, to include his 1966 shrapnel injuries. The Veteran's lay statements regarding the onset of his back pain should be acknowledged and addressed in the opinion. (b.) Whether it is at least as likely as not that the Veteran's thoracolumbar spine DDD was proximately caused or aggravated (i.e., worsened beyond natural progression) by any of his service-connected disabilities, specifically to include multiple fragment wounds of the chest and multiple fragment wounds of the right leg. The lay statements of record regarding a secondary theory of entitlement should be acknowledged and addressed in the opinion. (c.) The clinician is reminded that the term "aggravated" as used in 38 C.F.R. § 3.310(b), does not require that there be "permanent worsening" of the nonservice-connected disability. Instead, secondary service connection is warranted for "any incremental increase in disability and any additional impairment of earning capacity in nonservice-connected disabilities resulting from service-connected conditions, above the degree of disability existing before the increase regardless of its permanence." See Ward v. Wilkie, 31 Vet. App. at 239. (d.) The clinician should specifically discuss the Veteran's medical history regarding the development and progression of his thoracolumbar spine DDD in light of his service-connected disabilities. If medical literature is relied upon in rendering this determination, the clinician should identify and specifically cite each reference material used. (e.) All opinions should be accompanied by supporting rationale explaining how the clinician arrived at the conclusions expressed. (f.) If the clinician determines that s/he cannot provide an opinion without resorting to speculation, the clinician should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. 3. Schedule the Veteran for a VA muscle injuries examination by an appropriate clinician to determine the current extent and severity of his service-connected: (a) multiple fragment wounds of the right leg (Muscle Group XI), (b) left shoulder residuals (Muscle Group I-IV), (c) gunshot fragment wounds of the right wrist (Muscle Group VII), (d) multiple fragment wounds of the chest (Muscle Group XXI), and (e) left elbow residuals (Muscle Group V-VI). Appropriate imaging (x-ray, CT, MRI, etc.) to determine all current shrapnel residuals should be conducted, specifically to include whether there is shrapnel in the Veteran's lungs associated with his service-connected chest fragment wounds. For each separate service-connected disability, the examiner is asked to specifically determine the severity of the muscle injury: slight, moderate, moderately severe, or severe. 4. Schedule the Veteran for a VA peripheral nerves examination by an appropriate clinician to determine whether there are neurological manifestations associated with his service-connected multiple fragment wounds of the right leg and left shoulder residuals. The examiner is asked to review the claims file and note that such review took place. Following a review of the claims file and a physical examination, the examiner is asked to determine: (a.) Whether it is at least as likely as not that the Veteran has nerve damage in his right leg associated with his service-connected multiple fragment wounds; and (b.) Whether it is at least as likely as not that the Veteran has nerve damage in his left shoulder associated with his service-connected left shoulder residuals; and (c.) The severity of any associated nerve damage and involved nerves; and (d.) Whether the right leg (Muscle Group XI) muscle injury and the nerve damage affect the same functions of the right leg or whether they affect entirely different functions; and (e.) Whether the left shoulder (Muscle Group I-IV) muscle injury and the nerve damage affect the same functions of the left shoulder or whether they affect entirely different functions. (f.) All opinions should be accompanied by supporting rationale explaining how the examiner arrived at the conclusions expressed. 5. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected bilateral hearing loss. All indicated tests and studies should be performed and all clinical and special test findings should be reported in detail to allow for evaluation under applicable VA rating criteria. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the disability. The examiner should include all functional impacts of the hearing disability. See Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). 6. Ensure that the examination reports are associated with the claims file. After completing the above, and any additionally indicated development, readjudicate the claim. SHEREEN M. MARCUS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Rachel E. Jensen, 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.