Citation Nr: 21075862 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 07-34 547A DATE: December 21, 2021 REMANDED Entitlement to a rating in excess of 30 percent for scars of the right flank, right lower abdomen, right mid-abdomen, right posterior hip, right third finger, and right mid-palm is remanded. Entitlement to a rating in excess of 20 percent for residuals of a gunshot wound to the right hand with peripheral neuropathy is remanded. REASONS FOR REMAND The Veteran had active duty service with the United States Army from October 1965 to November 1970. This matter comes before the Board of Veterans' Appeals (Board) from rating decisions issued in January 2010 and May 2011, of a Department of Veterans Affairs (VA) Regional Office (RO). In February 2013 and August 2017, the Veteran testified before two Veterans Law Judges in separate hearings. Transcripts of those proceedings have been associated with the record. In November 2020, the Veteran was notified that the most recent VLJ was no longer with the Board and offered an additional hearing before a third VLJ who would decide his case. Neither the Veteran nor his representative responded within the allotted time; thus, the Veteran waived his right to an additional hearing. This matter was last before the Board in February 2021, at which time it was remanded for further development. The Veteran was issued a Supplemental Statement of the Case (SSOC) in April 2021, confirming the denial of both issues on appeal. In response, the Veteran submitted handwritten correspondences in June 2021, wherein he indicated that he wished to opt-in to the Appeals Modernization Act (AMA) and requested that he be sent the appropriate forms to do so. Notably, the forms on which the Veteran wrote his request, as well as information included with the April 2021 SSOC, both indicated that the appropriate forms to elect AMA review of his appeals could be located online. Three days following the receipt of the Veteran's correspondence, he was sent a letter indicating that his appeal had been returned to the Board. As his appeal has already been transferred to and activated by the Board, and the Veteran's request to elect the AMA review system has not been received on the appropriate form, the appeal will continue to be processed under the legacy system. 1. Entitlement to a rating in excess of 30 percent for scars of the right flank, right lower abdomen, right mid-abdomen, right posterior hip, right third finger, and right mid-palm is remanded. When this matter was before the Board in February 2021, it was remanded to afford the Veteran a VA examination. The Board indicated that a prior September 2019 VA examination contradicted the Veteran's lay reports of symptoms, and failed to address this discrepancy. Specifically, the Veteran reported at the time of his August 2017 hearing that his scars were painful, and at least one was unstable, purportedly leaking and opening sporadically. He further reported irritation and redness of the scars that required hospital treatment and medication. The record also contains a September 2015 VA treatment record that indicates that the Veteran complained of right flank pain, and the examining physician indicated that his scar in that area may be the source of the pain. See CAPRI records, submitted October 9, 2019 (record dated September 29, 2015). The Veteran was afforded a VA examination in March 2021. The examiner indicated that none of the Veteran's scars were painful or unstable. When prompted to specifically address the Veteran's lay reports of symptoms related to his scars, the examiner indicated only that "it is clear and simple to state that Vet has no limitations from abdominal scars", and that the Veteran "had no limitations from hand scar and his current limitations are not due to any residuals of his GSW". In rendering this opinion, the examiner failed to specifically address the Veteran's lay reports of symptoms related to his service-connected scars. A remand by the Board confers on the claimant, as a matter of law, a right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). Unfortunately, as there has not been substantial compliance with the Board's previous remand directives, an additional remand is necessary before the Board can adjudicate the issue. Id. 2. Entitlement to a rating in excess of 20 percent for residuals of a gunshot wound to the right hand with peripheral neuropathy is remanded. The Veteran's claim for an increased rating for residuals of a gunshot wound to the right hand was also remanded to obtain a VA examination and medical opinion. Specifically, the Board noted that a prior September 2019 VA examination failed to address additional loss of function or motion with repetitive use or during a flare-up of the condition. The Veteran was afforded a VA examination in March 2021, that included the completion of Disability Benefit Questionnaires corresponding to hand and finger conditions, peripheral nerve conditions, and muscle injuries. The examiner noted symptoms including, but not limited to, pain in the hand and wrist, altered sensation in the right forearm, and issues with hand grip. The examination findings also revealed decreased sensation of forearm, hand, and fingers. The Veteran was noted to have mild incomplete paralysis of radial nerve, median nerve, and ulnar nerve. Ultimately, the examiner indicated that none of the Veteran's symptoms were due to his service-connected residuals of a gunshot wound to the right hand with peripheral neuropathy. The examiner indicated that any residuals or symptoms related to the Veteran's service-connected condition had resolved. The examiner instead opined that the current symptoms were related to carpal tunnel syndrome. Notably, the examiner indicated that the Veteran's carpal tunnel was "likely not" related to his gunshot wound. In this case, the Veteran has a lengthy history of symptoms related to his residuals of a gunshot wound to the right hand. Thus, the findings of the March 2021 examiner that the residuals had completely resolved, and that any current symptoms are attributable to his non-service connected carpal tunnel syndrome contradicts the remainder of the evidence of record. Moreover, while the examiner stated that the Veteran's carpal tunnel was "likely not" a residual/symptom of his gunshot wound, this finding does not apply the proper standard of proof ("at least as likely as not"). Accordingly, remand is warranted for an addendum medical opinion. The opinion obtained should determine whether it is at least as likely as not that the Veteran's carpal tunnel syndrome is related to his service-connected residuals of a gunshot wound to the right hand. Additionally, if the examiner determines that the Veteran's carpal tunnel is not related to his service-connected residuals of a gunshot wound, (s)he should indicate which symptoms are related to the condition. The matters are REMANDED for the following action: 1. Obtain any relevant, outstanding VA treatment records that are not already associated with the claims file. 2. Once the aforementioned development is complete, schedule the Veteran for a VA examination to assess the severity of his service-connected scars of the abdomen, flank, hip, and hand. The examination may be conducted via telehealth or similar electronic means, if feasible. The need to examine the Veteran in-person is left to the discretion of the examiner. A complete copy of the claims file must be made available to the examiner. The examiner should consider the Veteran's lay reports of observable symptoms related to these scars. Following a thorough review of the medical and lay evidence of record, the examiner should discuss the following: (a.) The location and size of any and all scars on the Veteran's right hand/palm, abdomen/flank, and right hip, resulting from the in-service gunshot wound and resulting ileocolostomy procedure. (b.) Note whether any of the scars are associated with underlying soft tissue damage. (c.) Note whether any of the scars are painful and/or unstable. (d.) Indicate whether there is limitation of function of the right hand, right hip, back, trunk, and/or any other area(s) of the lower and/or upper extremities affected by the abdominal and hand scars are a result of any scar and, if so, describe such limitation in detail. (e.) Indicate if there are any other disabling effects per Diagnostic Code 7805. (f.) Specifically address the Veteran's subjective reports of pain and additional symptoms related to his scars. In addition to the other relevant evidence of record, the examiner must specifically address the following evidence with a caution that this list is not a substitute for a review of the record: i. The Veteran's report that his scars were painful, and at least one was unstable, purportedly leaking and opening sporadically. See August 2017 Hearing Transcript. ii. The Veteran's reports of irritation and redness of the scars that required hospital treatment and medication. See August 2017 Hearing Transcript. iii. A September 2015 VA treatment record that indicates that the Veteran complained of right flank pain, and the examining physician indicated that his scar in that area may be the source of the pain. See CAPRI records, submitted October 9, 2019 (record dated September 29, 2015). The examiner is reminded that the Veteran is competent to attest to factual matters of which the Veteran has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. 3. Obtain an addendum medical opinion to assess the Veteran's service-connected residuals of a gunshot wound to the right hand. The need to examine the Veteran in-person is left to the discretion of the examiner. A complete copy of the claims file must be made available to the examiner. The examiner should consider the Veteran's lay reports of observable symptoms related to the condition. Following a thorough review of the medical and lay evidence of record, the examiner should discuss the following: (a.) All signs and symptoms necessary for evaluating the disability under the rating criteria, including a description of any muscle group impairment; any limitation of motion; any nerve involvement of all potentially affected areas (wrist, hand, forearm, etc.). Specifically, findings relevant to the criteria in 38 C.F.R. §§4.56, 4.71a, Diagnostic Codes 5213, 5228-30; 4.71a, Diagnostic Codes 5307-5309 and Muscle Group IX must be considered. (b.) Indicate whether the Veteran has a diagnosis of carpal tunnel syndrome or any other diagnosed condition that may be the cause of any of the identified symptoms. (c.) If so, whether it as least as like as not (50 percent or greater probability) that the carpal tunnel syndrome or any other diagnosed condition is related to the Veteran's military service; or is caused or aggravated (permanently worsened beyond normal progression) by his service-connected residuals of a gunshot wound of the right hand. (d.) If the Veteran's carpal tunnel syndrome or any other diagnosed condition is NOT related to service or a service-connected disability, indicate which of the Veteran's identified symptoms are manifestations of his service-connected residuals of a gunshot wound to the right hand. The examiner is reminded that the Veteran is competent to attest to factual matters of which the Veteran has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should provide a complete rationale for all opinions provided. If an opinion cannot be provided without to resorting to mere speculation, the examiner should identify all medical and lay evidence considered in this conclusion, fully explain why this is the case and identify what additional evidence (if any) would allow for a more definitive opinion. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Marsh II, 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.