Citation Nr: 21030206
Decision Date: 05/18/21	Archive Date: 05/18/21

DOCKET NO. 12-15 168
DATE: May 18, 2021

REMANDED

Entitlement to a rating in excess of 10 percent for residuals of gunshot wound, thorax, impairment of muscle group XXI, is remanded.  

Entitlement to an initial compensable rating for residuals of gunshot wound, thorax/chest, impairment of muscle group III, prior to March 23, 2020 is remanded.

Entitlement to an initial rating in excess of 20 percent for residuals of gunshot wound, thorax/chest, impairment of muscle group III, from March 23, 2020 is remanded. 

REASONS FOR REMAND

The Veteran served on active duty from June 1967 to June 1969.  He appeals an April 2010 rating decision by the Agency of Original Jurisdiction (AOJ).

In January 2020 and December 2020, the Board remanded the case to the AOJ for further development.  Thereafter, in February 2021, the AOJ awarded service connection for residuals of gunshot wound, thorax/chest, impairment of muscle group III, and assigned a 20 percent rating effective March 23, 2020.  In the February 2021 rating decision, the AOJ also continued the Veteran's 10 percent rating for residuals of gunshot wound, thorax, impairment of muscle group XXI.  Thus, the Board has characterized the issues as such on the title page to reflect the entire appeal period.       

In the December 2020 Board remand, the Board in part directed the VA examiner to assess whether all of the Veteran's residuals of the right chest gunshot wound are of slight, moderate, moderately severe, or severe intensity based on the applicable rating criteria.  However, a review of the January 2021 VA examination report and the January 2021 VA opinion accompanying the January 2021 VA examination report illustrates that there are conflicts as to the severity of the residuals to muscle group III and muscle group XXI between the VA examination report and the VA opinion.  Notably, the VA examination report regarding muscle group III reflects that the Veteran had loss of power, weakness, and fatigue and/or pain at a severe level.  See January 2021 VA examination report at 7.  However, the VA examiner assessed the severity of muscle group III to be moderate in the VA opinion submitted along with the VA examination report.  See January 2021 VA opinion at 4.  

For muscle group XXI, the VA examination report reflects that the Veteran had fatigue and/or pain at a moderately severe level.  See January 2021 VA examination report at 7.  However, the VA examiner assessed the severity of muscle group XXI to be moderate in the VA opinion submitted along with the VA examination report.  See January 2021 VA opinion at 4.

Therefore, based on the discrepancies between the VA examination report and VA opinion as to the severity of the Veteran's residuals of the gunshot wound, and there being insufficient evidence to adequately resolve the discrepancies, an additional VA examination is necessary to adjudicate the Veteran's claims.

The matters are REMANDED for the following actions:

1. Obtain any outstanding private and VA treatment records relevant to treatment the Veteran received for his residuals of right chest gunshot wound.  If any identified records are not obtainable (or none exist), the Veteran and his representative should be notified and the record clearly documented.

2. Thereafter, schedule the Veteran for an examination to determine the severity of his residuals of right chest gunshot wound, including to muscle groups III and XXI, in accordance with the criteria of the rating schedule for muscle group injuries.  The evidentiary record, including a copy of this remand, must be made available to and be reviewed by the examiner. 

3. After the above development has been completed, readjudicate the claims.  If any benefit sought remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC), and return the case to the Board, if otherwise in order.

 

DONNIE R. HACHEY

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	N. Breitbach, 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.