Citation Nr: 21007458 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 07-34 547A DATE: February 9, 2021 REMANDED The claim of 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. The claim of 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. The period of service from October 1965 to October 1967 received an honorable discharge. The period of service from October 1967 to November 1970 received a discharge under other than honorable conditions. The instant matter is on appeal from a May 2011 rating decision. 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 case has a significant procedural history. Most recently, in March 2018, the Board remanded the issues listed herein for additional evidentiary development. The Board additionally remanded the claim of entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) as intertwined with the outstanding issues. In October 2019, the Regional Office granted entitlement to TDIU effective October 23, 2008, the date entitlement arose in conjunction with a claim of increased benefits. In the October 2020 appellate brief, the Veteran’s representative reported that the issue regarding TDIU was satisfied with this grant, and there remained no outstanding issue with respect to TDIU benefits. Accordingly, the October 2019 grant of TDIU represents a full grant of benefits sought on appeal, and the issue is no longer before the Board. 1. The claim of 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. The Board sincerely regrets the additional delay, but remand is again necessary in order to obtain a new VA examination to assess the severity of the Veteran’s scars. The Veteran previously reported in his August 2017 hearing that his scars were painful, and at least one was unstable, purportedly leaking and opening sporadically. In the September 2019 VA examination, however, the examiner summarily stated that the Veteran did not have painful or unstable scars. As highlighted by the October 2020 appellate brief, the examination runs counter to the Veteran’s lay reports of symptoms, and it fails to address this discrepancy. Accordingly, remand is necessary in order to obtain a new VA examination of the Veteran’s scars in order to adequately assess their severity. 2. The claim of entitlement to a rating in excess of 20 percent for residuals of a gunshot wound to the right hand with peripheral neuropathy is remanded. Remand is also necessary to obtain an addendum opinion, if possible, from the September 2019 VA examiner who assessed the Veteran’s disability of the right hand. In the September 2019 examination, the examiner stated that the examination was neither medically consistent nor inconsistent with the Veteran’s statements describing functional loss with repetitive use over time. In support of this, the examiner stated: “After examination of the veteran, listening to their complete history and current subjective complaints, combined with a review of the available records, I have no basis to offer additional loss of function or motion when it comes to repetitive use or during a flare-up.” While the examiner considered the appropriate information, it remains unclear why the examiner could not offer a basis for any estimation of additional losses, or if any additional information may have changed this conclusion. Thus, remand is necessary to obtain an addendum from this examiner, if possible, to resolve this question. 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. If no records are available, the claims folder must indicate this fact and the Veteran should be notified in accordance with 38 C.F.R. § 3.159 (e). All attempts to contact the Veteran should be documented in the record. 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. 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. The examination report should specifically state that a review of the record was conducted. 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. 3. Once the aforementioned development is complete, obtain an addendum opinion from the previous VA examiner to assess the Veteran’s right-hand disability, if possible. If the examiner is unavailable, a new examination may be ordered, and may be conducted via telehealth or similar electronic means, if feasible. (a.) A complete copy of the claims file, including a copy of this remand, must be made available to the examiner. (b.) If the previous examiner is available to provide an addendum opinion, request that the examiner explain why there was no basis to offer an estimation of additional losses of function or motion after consideration of the evidence of record and subjective complaints. A thorough rationale in support of this conclusion is requested. (c.) If the previous examiner is unavailable, obtain a new VA examination of the Veteran’s right hand disability. A complete copy of the claims file, including a copy of this remand, must be made available to the examiner. The examiner should consider the Veteran’s lay reports of observable symptomatology. After a thorough review of the medical and lay evidence of record, the examiner is asked to discuss the following: • 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. (Continued on the next page)   The examination report should specifically state that a review of the record was conducted. 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. 4. Following completion of the foregoing, the AOJ should review the record and readjudicate the claims on appeal. If any remain denied, the AOJ should issue an appropriate supplemental SOC, afford the Veteran and his representative an opportunity to respond, and return the case to the Board. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Fisher, 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.