Citation Nr: 21077504 Decision Date: 12/30/21 Archive Date: 12/30/21 DOCKET NO. 11-17 677 DATE: December 30, 2021 REMANDED Entitlement to a disability rating in excess of 40 percent for residuals of gunshot wound left buttock, with degenerative joint disease of the left hip and atrophy muscle group XVII, with retained foreign body; is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from May 1966 until his honorable discharge in May 1968. His decorations include the Purple Heart and Combat Infantryman Badge. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision by the St. Petersburg, Florida Regional Office (RO) of the United States Department of Veterans Affairs (VA). In March 2014, the Veteran testified at a videoconference Board hearing before the undersigned Veterans Law Judge (VLJ), sitting at the RO in St. Petersburg, Florida. A transcript of the hearing has been associated with the record on appeal. By way of procedural background, the Board remanded this claim for further development in March 2014, June 2016, and October 2017. In April 2018, the Board granted a 40 percent disability rating for the Veteran's residuals of gunshot wound left buttock, with degenerative joint disease of the left hip and atrophy muscle group XVII, with retained foreign body. As this was not a full grant of benefits sought on appeal, however, the Veteran appealed the Board's decision to the Court of Appeals for Veterans Claims (Court). While the matter was pending before the Court, the parties entered into an agreement and submitted a Joint Motion for Remand (JMR). Pursuant to the terms of the JMR, the parties agreed that the Board erred by failing to ensure that all outstanding VA treatment records had been obtained and directed the Board to do and, if necessary, to obtain a new VA examination. The Court then vacated the June 2019 Board decision to the extent it did not grant a disability rating higher than 40 percent and remanded the matter to the Board for further development. Subsequently, the Board remanded this matter in December 2019, October 2020, and September 2021. Unfortunately, another remand is required. 1. Entitlement to a disability rating in excess of 40 percent for residuals of gunshot wound left buttock, with degenerative joint disease of the left hip and atrophy muscle group XVII, with retained foreign body; is remanded. The Veteran asserts that he is entitled to a disability rating in excess of 40 percent for his residuals of gunshot wound left buttock, with degenerative joint disease of the left hip and atrophy muscle group XVII, with retained foreign body. Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Veteran's residuals of gunshot wound left buttock, with degenerative joint disease of the left hip and atrophy muscle group XVII, with retained foreign body disability is rated under 38 C.F.R. § 4.73, Diagnostic Code 5317, based on injury to Muscle Group XVII. The function of Muscle Group XVII includes extension of hip; abduction of thigh; elevation of opposite sides of pelvis; and tension of fascia lata and iliotibial (Maissiat's) band, acting with XIV in postural support of body steadying pelvis upon head femur and condyles of femur on tibia. Ratings of 0, 20, 40, and 50 percent are provided for slight, moderate, moderately severe, and severe injuries, respectively. 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). Throughout the period on appeal, the Veteran has been rated at a 40 percent disability rating for a "moderately severe" muscle wound. The next higher disability rating of 50 percent is available based on evidence of a "severe injury" muscle wound. A "severe injury" muscle wound is through and through or deep penetrating wound due to high-velocity missile, or large or multiple low-velocity missiles, or with shattering bone fracture or open comminuted fracture with extensive debridement, prolonged infection, or sloughing of soft parts, intermuscular binding and scarring. The history and complaint would include service department records showing hospitalization for a prolonged period for treatment of the wound; record of consistent complaint of cardinal signs and symptoms of muscle disability as defined in paragraph (c) of this section, worse than those shown for moderately severe muscle injuries, and, if present, evidence of inability to keep up with work requirements. Objective findings of severe injury to the muscle would include ragged, depressed, and adherent scars indicating wide damage to muscle groups in missile track. Palpation shows loss of deep fascia or muscle substance, or soft flabby muscles in wound area. Muscles swell and harden abnormally in contraction. Tests of strength, endurance, or coordinated movements compared with the corresponding muscles of the uninjured side indicate severe impairment of function. If present, 38 C.F.R. § 4.56(d)(4) provides that the following are also signs of severe muscle disabilities: (a) X-ray evidence of minute multiple scattered foreign bodies indicating intermuscular trauma and explosive effect of the missiles. (b) Adhesion of scar to one of the long bones, scapula, pelvic bones, sacrum or vertebrae, with epithelial sealing over the bones rather than true skin covering in an area where bones is normally protected by muscle. (c) Diminished muscle excitability to pulsed electrical current in electrodiagnostic tests. (d) Visible or measurable atrophy. (e) Adaptive contraction of an opposing group of muscles. (f) Atrophy of muscle groups not in the track of the missile, particularly of the trapezius and serratus in wounds of the shoulder girdle. (g) Induration or atrophy of an entire muscle following simple piercing by a projectile. When considering joints, manifestations of functional loss also include less or more movement than is normal, weakened movement, excess fatigability, incoordination, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight bearing. 38 C.F.R. § 4.45; see also DeLuca v. Brown, 8 Vet. App. 202, 207 (1995) (holding that 38 C.F.R. § 4.45 applies to joint conditions as well as muscle and nerve conditions). The Veteran has been afforded numerous VA examinations with inconsistent results. Furthermore, the Board notes that the Veteran's third VA examination in August 2016 opined that the Veteran's leg weakness, achiness, and numbness with walking and standing, however, the examiner stated this was unrelated to the residuals of the gunshot wound and more likely related to general frailty. The Board notes that the most recent VA examination(s) provided inconsistent results and did not address all of the criteria required to evaluate the Veteran's disability. During the Veteran's October 2021 VA examination, the examiner noted that the Veteran uses a cane constantly for arthritis of the left hip. See October 2021 Hip and Thigh Conditions Disability Benefits Questionnaire, Section IX, p. 16. However, during the Veteran's October 2021 VA examination, the same VA examiner indicated that the Veteran does not use any assistive devices as a normal mode of locomotion. See October 2021 Muscle Injuries Disability Benefits Questionnaire, Section V, pp. 8-9. Furthermore, although the October 2021 VA examiner noted all normal initial range of motion in the right hip, the examiner provided no evaluation for the right hip range of motion for repeated use over time, muscle atrophy in the right hip, ankylosis of the right hip; malunion or nonunion of the femur, flail hip joint or leg length discrepancy of the right hip. See October 2021 Hip and Thigh Conditions Disability Benefits Questionnaire, Sections III(c), pp. 9-10; section IV, p. 13; section V, p. 14; Section VI, p. 14. Finally, the Board notes that all of the criteria (listed above) were not provided for in the most recent VA examination(s). Due to the inconsistencies and the incomplete VA examination(s), remand is required. Accordingly, the case is REMANDED for the following action: 1. Obtain the Veteran's VA treatment records for the period from November 5, 2021 to Present. 2. After the above has been completed, Schedule the Veteran for an examination by an appropriate clinician(s) to determine the current severity of his service-connected residuals of gunshot wound left buttock, with degenerative joint disease of the left hip and atrophy muscle group XVII, with retained foreign body. The Veteran shall be afforded a Hip and Thigh VA examination, Muscle Injury examination, Scar examination, and any other examination(s) deemed appropriate to fully evaluate the Veteran's current severity of his residuals of gunshot wound left buttock, with degenerative joint disease of the left hip and atrophy muscle group XVII, with retained foreign body disability; including but not limited to a comparison of the opposite undamaged muscles and joints for all criteria. The examiner(s) must provide a full description of the severity of the Veteran's disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria (as noted above), including but not limited to: (a.) X-ray evidence of minute multiple scattered foreign bodies indicating intermuscular trauma and explosive effect of the missiles. The examiner must specifically address the number and size(s) of any foreign body associated with the Veteran's disability as a result of current x-ray evaluation. (b.) Adhesion of scar to one of the long bones, scapula, pelvic bones, sacrum or vertebrae, with epithelial sealing over the bones rather than true skin covering in an area where bones is normally protected by muscle. The Veteran must be afforded a current scar disability benefits questionnaire that includes specifically addressing these criteria. (c.) Diminished muscle excitability to pulsed electrical current in electrodiagnostic tests. (d.) Visible or measurable atrophy. (e.) Adaptive contraction of an opposing group of muscles. (f.) Atrophy of muscle groups not in the track of the missile, particularly of the trapezius and serratus in wounds of the shoulder girdle. (g.) Induration or atrophy of an entire muscle following simple piercing by a projectile. (h.) The examiner must opine on the severity of the Veteran's disability and provide a detailed rationale for the opinion. Specifically, does the Veteran's residuals of gunshot wound left buttock, with degenerative joint disease of the left hip and atrophy muscle group XVII, with retained foreign body produce symptoms that are slight, moderate, moderately severe, or severe; with a detailed rationale based upon the medical evidence. (i.) Finally, the examiner must offer an opinion, based on the medical evidence of record, if the evaluation of the severity has been consistent throughout the period on appeal, has worsened during the period on appeal, has improved during the period on appeal, or has fluctuated during the period on appeal; with a detailed rationale and the records (and dates) associated with any changes. In so doing, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. 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). Furthermore, in so doing, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups (if any), 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). 3. After the evaluation(s), the RO shall readjudicate the Veteran's claim, including but not limited to any residuals that may be rated under a separate Diagnostic Code. M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Deemer, 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.