Citation Nr: 23010455 Decision Date: 02/21/23 Archive Date: 02/21/23 DOCKET NO. 18-47 694 DATE: February 21, 2023 REMANDED Entitlement to a rating in excess of 10 percent for residuals of shell fragment wound (SFW) of the right side of the abdomen is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1968 to October 1970, to include service in the Republic of Vietnam. His medals include the combat infantryman badge. These matters come before the Board of Veterans' Appeals (Board) on appeal from a February 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In November 2021, the Board denied entitlement to a rating in excess of 10 percent for residuals of SFW of the right side of the abdomen, entitlement to an increased rating for residuals of SFW of the right knee, and entitlement to special monthly compensation; and remanded entitlement to a separate rating for arthritis of the right knee as a residual of SFW of the right knee, and entitlement to a TDIU. The Veteran appealed the November 2021 Board decision to the U.S. Court of Appeals for Veterans Claims (Court). In an August 2022 Order, pursuant to a Joint Motion for Partial Remand (Joint Motion), the Court vacated the portion of the Board decision that denied entitlement to rating in excess of 10 percent for residuals of SFW of the right side of the abdomen and returned it to the Board for further action consistent with the Joint Motion. In November 2022, the Board denied entitlement to a separate rating for arthritis of the right knee as a residual of SFW of the right knee, and remanded entitlement to a rating in excess of 10 percent for residuals of SFW of the right side of the abdomen and a TDIU for further development. This appeal has been advanced on the Board's docket pursuant to 38 U.S.C. § 7107(a) (2); 38 C.F.R. § 20.900(c). 1. Entitlement to a rating in excess of 10 percent for residuals of SFW of the right side of the abdomen 2. Entitlement to a TDIU In its November 2022 remand, the Board requested the AOJ to undertake development to obtain the Veteran's service treatment records pertaining to an abdominal exploratory laparotomy, in which portions of shell fragments were removed and part of his liver resected, as well as additional treatment at field hospitals. The Board noted that the missing treatment records are potentially relevant to the claim for an increased rating for residuals of SFW of the right side of the abdomen and, as noted in the July 2022 Joint Motion, the March 1971 rating decision noted the service treatment records were incomplete, and there is no indication in the record that the missing records are actually unavailable. While the AOJ undertook the development requested in the November 2022 remand, the AOJ indicated that no medical treatment records were found. As it is possible that the Veteran's hospital and surgical records are kept separately from other service treatment records and the previous remand directive did not specify the dates and possible treatment locations, a remand is needed to allow VA to fully develop the claim and again request these potentially relevant records. As a decision on the increased rating claim for residuals of SFW of the right side of the abdomen could impact a decision on the claimed TDIU, the issues are inextricably intertwined. Updated treatment records should also be requested. The matters are REMANDED for the following action: 1. Ask the Veteran to provide the names and addresses of all medical care providers who have recently treated him for the claimed residuals of SFW of the right side of the abdomen. After securing any necessary releases, request any relevant records identified that are not duplicates of those associated with the claims file. In addition, obtain outstanding VA treatment records since December 2021. If any requested records are unavailable, the Veteran should be notified of such. (Continued on the next page) 2. Request hospital and surgical treatment records through official sources for the Veteran's hospitalization and abdominal exploratory laparotomy procedure for the period of service from August 1969 to December 1969, to possibly include treatment at field hospitals in the Republic of South Vietnam and Japan, Chanute Air Force Base Hospital, Great Lakes Naval Hospital, and Fort Leonard Wood Army Hospital. If additional information is needed from the Veteran to request such records, the Veteran should be asked to provide it. All efforts to obtain such records should be documented in the claims file. If the records cannot be obtained, a formal finding of unavailability should be prepared, and the Veteran notified of the inability to obtain the records. 3. Readjudicate the claims for entitlement to an increased rating for residuals of SFW of the right side of the abdomen and a TDIU. H. SEESEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. C. Birder 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.