Citation Nr: 22018641 Decision Date: 03/30/22 Archive Date: 03/30/22 DOCKET NO. 16-50 146 DATE: March 30, 2022 REMANDED Entitlement to a compensable disability rating prior to September 18, 2020 and a rating in excess of 10 percent thereafter for residual scars related to retained fragments of glass, buttocks, back, postoperative injury ("residual scars disability"), is remanded. REASONS FOR REMAND The Veteran testified before the undersigned Veterans Law Judge in a June 2019 Travel Board hearing. A transcript of that hearing has been associated with the file. In April 2021 the Board denied a compensable disability rating prior to September 18, 2020 and a rating in excess of 10 percent thereafter for residual scars disability and denied a compensable disability rating for nonlinear scars of the back. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In December 2021, the Court granted the parties' November 2021 joint motion for partial remand (JMPR) and vacated the April 2021 Board decision to the extent that it denied granting a compensable disability rating prior to September 18, 2020, and a rating in excess of 10 percent thereafter for residual scars disability. The case has been returned to the Board for compliance with the terms of the JMPR. In the JMPR, the parties agreed that the Board failed to provide an adequate statement of reasons and bases as to why it denied a compensable rating prior to September 2020 and higher than 10 percent thereafter for residual scars. Specifically, the Board did not address whether the Veteran was entitled to additional compensation for myofascial pain, as noted in the September 2020 VA examination report. The September 2020 VA examiner noted that the Veteran developed myofascial pain from the retained glass fragments in his sacrum and buttocks and opined that it was at least as likely as not that the myofascial pain was proximately due to or the result of his service-connected residual scars condition. In the JMPR the parties noted the contentions the Veteran made in the February 2015 notice of disagreement and in the September 2016 VA Form 9. He stated that his claim was not solely in reference to the scar, but also pertained to the glass fragments under the scar located in the lower back and buttocks area and that the retention of glass and shrapnel moved and pressed on his nerves and muscles resulting in reduced mobility and pain. The parties also agreed that the Board failed to consider whether the myofascial pain noted in the September 2020 VA report could warrant an additional rating under applicable criteria, to include consideration under Diagnostic Codes 7804 and 5317. Thus, the parties concluded that a remand is warranted for the Board to address whether the Veteran is entitled to additional compensation for myofascial pain due to his service-connected residual scar disability. In June 2019, the Board remanded the matter to afford the Veteran examinations not only for his scars, but for muscle injuries and peripheral neuropathy. Thereafter, the RO granted service connection for peripheral neuropathy of the right lower extremity and service connection for right knee strain in an October 2020 rating decision. Notably, the Veteran did not appeal the ratings or effective dates of either the peripheral neuropathy of the right lower extremity or right knee strain. To comply with the terms of the JMPR, a remand is required. Clarification is needed to determine when the record illustrates the earliest diagnosis of myofascial pain syndrome, whether myofascial pain syndrome is a separate and distinct disability, and if it is then whether it is related to military service or service-connected disabilities. As stated in April 2021 Board decision, VA sent the Veteran development letters in July 2016 and November 2019 to secure outstanding private treatment records. Despite the Veteran not responding, since the matter is being remanded the Board will request that additional efforts be made to obtain these records. The matter is REMANDED for the following action: 1. The Agency of Original Jurisdiction (AOJ) should contact the Veteran and request that he identify any private treatment records documenting treatment for myofascial pain syndrome, peripheral neuropathy of the right lower extremity, right knee, and scars. 2. The AOJ should schedule the Veteran for an appropriate VA examination to determine the nature and severity of his residuals of retained glass fragments. To the extent possible the examiner should opine as to the level of severity of the Veteran's residuals of retained glass fragments, throughout the appeal period (from August 2013 to present). Upon review of the record and examination of the Veteran, the examiner should provide opinions that respond to the following: (a.) Opine as to when the Veteran first presented with myofascial syndrome and whether myofascial syndrome is a symptom of the Veteran's service-connected residuals of retained glass fragments, service-connected peripheral neuropathy of the right lower extremity, service-connected right knee strain, or whether it is a distinct disability. (b.) If it is determined that the myofascial syndrome is a distinct disability, the examiner should determine if it is at least as likely as not (50 percent or greater probability) that the myofascial syndrome had its onset in service or is otherwise related to an event, illness, or injury in service. (c.) If it is determined that the myofascial syndrome is a distinct disability, the examiner is asked to offer an opinion as to whether it is at least as likely as not (i.e., 50 percent or greater probability) that the Veteran's myofascial syndrome is proximately due to or caused by the Veteran's service-connected disabilities, to include his service-connected residuals of retained glass fragments, service-connected peripheral neuropathy of the right lower extremity, and service-connected right knee strain. (d.) If it is determined that the myofascial syndrome is a distinct disability, the examiner is asked to offer an opinion as to whether it is at least as likely as not (i.e., 50 percent or greater probability) that the Veteran's myofascial syndrome was aggravated (worsened in severity beyond a natural progression) by his service-connected disabilities, to include his service-connected residuals of retained glass fragments, service-connected peripheral neuropathy of the right lower extremity, and service-connected right knee strain. The examiner is asked to provide a complete a rationale for all opinions offered. If the examiner is unable to provide an opinion without resort to speculation, an explanation as to why this is so should be provided. H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Talamantes, 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.