Citation Nr: 21015668 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 10-30 850 DATE: March 18, 2021 REMANDED Entitlement to an initial rating in excess of 30 percent for gunshot wound (GSW), muscle group (MG) XIV of the left lower extremity is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1987 to November 1995, to include subsequent service in the National Guard. This matter is on appeal to the Board of Veterans’ Appeals (Board) from a December 2015 rating decision. A Board video conference hearing was held before the undersigned Veterans Law Judge in April 2012. A transcript of the hearing has been associated with the record. Most recently, the Board remanded this issue in November 2020 for further development, to include obtaining a VA examination. However, for reasons explained further below, the Board finds that another remand is necessary. Moreover, the Board observes that after the prior remand, the Veteran’s representative indicated that a left knee exam was also warranted. Further, a December 2020 private opinion stated that the Veteran has left knee arthritis from the GSW. However, the Veteran has already been awarded service connection for osteoarthritis of the left knee and the Board issued a decision in August 2018 addressing all of the current ratings assigned for the left knee. As such, this matter is not currently in appellate status. If the Veteran wishes to seek increased ratings for his left knee disabilities, a new claim should be filed at the agency of original jurisdiction (AOJ). Likewise, the December 2020 private opinion also indicated that the Veteran had hypertension and sleep apnea due to his service-connected MG injury. However, again, service connection has been awarded for these disabilities and the Board dismissed rating claims for these matters in April 2020 as the Veteran had withdrawn his appeal of these issues. Again, if the Veteran wishes to seek increased ratings for these disabilities, a new claim should be filed with the AOJ. Entitlement to an initial rating in excess of 30 percent for GSW, MG XIV of the left lower extremity is remanded. The Board previously remanded this issue for a VA examination to determine the current severity of the disability as well as which muscle groups were involved. In other words, there was evidence that MG XIII was involved as well as MG XIV. The Veteran was afforded a VA examination in December 2020, the examiner found that only MG XIV was involved and despite a request for a detailed explanation, the examiner simply stated that Group XIII is the posterior thigh, which is not affected by GSW. However, in contrast, the December 2020 private opinion found that both muscle groups were involved, but did not further explain why both were involved or provide enough information to rate a disability under MG XIII. Further, the Veteran and his representative have also pointed to numerous inaccuracies in the VA examination report. In this regard, the Veteran has worn a knee brace for years, but the examiner stated that no brace was used. The Veteran also pointed out that he did experience loss of power, weakness, fatigue and pain, which were not documented in the examination report. Importantly, in its prior remand, the Board found this finding of lack of such symptoms was inconsistent with other evidence of record, which indicate symptoms such as loss of power, weakness, and impairment of coordination. The examiner also indicated that there was no muscle atrophy, which again, the Board previously found was inconsistent with other evidence of record. The VA examiner also stated that there was no retained metallic fragments. However, again the Veteran indicated that this was an inaccurate finding and that he still retains some fragments in the leg. Unfortunately, in light of the above, the Board finds that given the conflicting evidence of record, another VA examination is necessary to determine which muscle groups are involved and the extent of the disability, The matters are REMANDED for the following action: 1. Obtain additional VA clinical records. 2. Schedule the Veteran for a VA examination to address the severity of his muscle injury. The examiner is instructed to review the entire claims file, to include a copy of this decision. Specifically, the examiner should state whether the Veteran’s injury to his quadriceps (vastus medialis and vastus medialis oblique) along with the medial femoral condyle and intercondylar notch affect muscle group XIII, muscle group XIV, or both. A complete rationale should be provided for any opinion rendered. The examiner must explicitly address the December 2020 private opinion, which identifies muscle group XIII and muscle group XIV as involved with the gunshot wound. With respect to each muscle group involved, the examiner is also instructed to opine on the severity of the Veteran’s injury(ies)in accordance with 38 C.F.R. § 4.56. It is noted that the Veteran wears a VA prescribed knee brace. If the examiner finds that the Veteran does not suffer from loss of power, weakness, fatigue, pain, impairment of incoordination, retention of metallic fragments or muscle atrophy, the examiner must rectify this finding with the Veteran’s lay statements as well as remaining medical evidence documenting such symptoms, including service treatment records showing muscle fragments, private treatment records, the June 2014 VA examination report, November 2011 private opinion, January 2012 private opinion, and December 2020 private opinion. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J.N. Moats 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.