Citation Nr: 0007970 Decision Date: 03/24/00 Archive Date: 03/28/00 DOCKET NO. 95-35 315 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to an increased rating for residuals of a gunshot wound of the left hip, including residuals of a left hip replacement, currently evaluated as 50 percent disabling. 2. Entitlement to an increased rating for post-traumatic stress disorder (PTSD) with depression and anxiety, currently evaluated as 30 percent disabling. 3. Entitlement to an increased rating for residuals of a shell fragment wound of the right buttock with sciatic neuritis, currently evaluated as 20 percent disabling. 4. Entitlement to an increased rating for mechanical low back disability, currently evaluated as 20 percent disabling. 5. Entitlement to an increased rating for scarring due to a gunshot wound of the right upper arm, currently evaluated as 10 percent disabling. 6. Entitlement to an increased rating for scarring of the abdominal area due to postoperative residuals of a gunshot wound, currently evaluated as 10 percent disabling. 7. Entitlement to a total disability rating based on individual unemployability due to service connected disabilities. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. M. Casula, Associate Counsel INTRODUCTION The veteran served on active duty from October 1966 to October 1968. This matter comes before the Board of Veterans' Appeals (Board) from a May 1995 rating decision of the Newark, New Jersey Regional Office (RO) of the Department of Veterans Affairs (VA) which granted an increased (30 percent) rating for PTSD with depression and anxiety, and denied increased ratings for residuals of a gunshot wound of the left hip, including residuals of a left hip replacement, for residuals of a shell fragment wound of the right buttock, for mechanical low back disability, for scarring due to a gunshot wound of the right upper arm, and for scarring of the abdominal area due to postoperative residuals of a gunshot wound. In the May 1995 rating action, the RO also denied entitlement to TDIU. In June 1997 this matter came before the Board and was remanded to the RO for additional evidentiary development. For reasons more fully explained below, the Board must again remand the claims for an increased rating for residuals of a gunshot wound of the left hip, for residuals of a shell fragment wound of the right buttock, for a mechanical low back disability, for scarring due to a gunshot wound of the right upper arm, and for scarring of the abdominal area. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal for an increased rating for PTSD has been obtained by the RO. 2. The veteran's PTSD with depression and anxiety is manifested by no more than definite social and occupational impairment; and occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks, chronic sleep impairment, mild memory loss. 3. The veteran is engaged in full time employment as a security guard working 40 hours per week. 4. The veteran is engaged in substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 30 percent for the veteran's service-connected PTSD have not been met. 38 U.S.C.A. §§1155, 5107 (West 1991 & Supp. 1999); 38 C.F.R. §§ 4.1, 4.2, 4.126, 4.132, Code 9411 (1996); 38 C.F.R. § 4.130, Code 9411 (1999). 2. The veteran is not precluded from engaging in substantially gainful employment as a result of service connected disabilities. 38 U.S.C.A. §§ 1155, 5107 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.340, 3.341, 4.1, 4.2, 4.10, 4.15, 4.16, 4.19 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Factual Background On VA examination in March 1995 it was noted that the veteran had not received psychiatric treatment, medication, or hospitalization. He reported that he medically retired from his career as a police officer in June 1994, which was necessary due to surgery for a total left hip replacement. He indicated that he was with the department for 25 years, achieved the rank of Chief, and his forced retirement was a major blow to his abilities to provide for his family. He claimed that his service-connected nervous condition was significantly worsened after this setback. He reported that he currently worked as a security guard and that this was also a major blow to his self-esteem and sense of manhood. He reported suffering from frequent episodes of anxiety. He claimed he was socially withdrawn, stress intolerant, persistently irritable, and suffered from episodes of agitation with minor provocation. He reported suffering from lapses of concentration, and feelings of depression and despondency. His claimed that his sleep was interrupted and he had night sweats. He reported having a marked increased in his preoccupation with Vietnam combat memories and recurrence of his combat nightmares. He had flashbacks in clusters, averaging two to three times a month. He claimed that loud, unexpected sounds caused an excessive startling. He was uncomfortable in crowds and public places, and was always looking around and was always alert. Additionally, in March 1995, VA examination showed that the veteran was alert and oriented times three, had a conventional appearance, and no unusual mannerisms or behavior. He was tense and apprehensive, his palms were moist, and his responses were evasive at times. His affect was constricted and his mood was depressed. There was no disturbance of mental stream, thought or perception. His memory was intact and his concentration was impaired. The diagnoses included PTSD and a depressive disorder with anxiety secondary to PTSD. It was noted that his adaptive functioning was fair for work and poor for socialization. By rating action in May 1995 the RO granted an increased (30 percent) rating for the veteran's PTSD with depressive and anxiety disorder. In November 1995 the veteran testified at a personal hearing at the RO. He indicated that he worked as a security guard at Kmart. He testified that he was previously a police officer for 25 years and was the Chief of Police for the last seven years, and was forced to retire from the police department because of the pain after his total hip replacement. He indicated that he was depressed after he had to give up his job as a police officer, and also felt anxiety and stress and was worried about providing for his family. He did not seek professional help. He testified that he had been married twenty years, and had three children. He indicated that he had trouble sleeping because of nightmares about the war, and he had flashbacks. He claimed that in his prior employment as Chief of Police he had to mask his feelings a great deal, and that he still did to this day. He worried about seeing a psychiatrist because people may find out or it may have gone on his permanent record, and he claimed that this added to his anxiety. In June 1997 the Board remanded this matter to the RO for further evidentiary development. By letter dated in December 1997, the RO asked the veteran to provide current information regarding his employment and he was asked to complete and return VA Form 21-8940. He did not respond to this request. On VA examination in October 1998, the veteran reported that he was married and had three children and lived with his family in a private home. He was employed as a full-time security guard. He denied any history of social impairment. He reported that he had a close and supportive family life and always enjoyed good relations on the job. He claimed that his PTSD disturbances had increased in frequency since his surgery and his retirement from the police department. He described having sleep impairment and combat dreams approximately twice a week. He had cold sweats, woke up shaking, and sometimes felt disoriented and would have to walk around the house checking doors and windows and make sure that nothing was burning in the house. Environmental reminders such as hot and humid weather and smells of garbage or diesel fuel, caused him to have intrusive memories during his waking hours. He was also disturbed by sounds of helicopter rotors. He denied flashbacks, but startled miserably when he encountered unexpected sharp sounds. He claimed he felt nervous in crowds, but did not limit his activity in public. Additionally, on in October 1998, VA examination showed that the veteran was alert, oriented times three, had no unusual mannerisms or behavior, was friendly and cooperative, and normal speech and communication. He appeared to be apprehensive and his palms were moist. His affect was appropriate and his mood was neutral. There was no disturbance of mental stream, thought or perception noted. He had no suicidal or homicidal ideation. His memory and concentration were intact and he had no cognitive deficit. The diagnoses were PTSD and anxiety disorder secondary to PTSD. His Global Assessment of Functioning (GAF) was from 70 to 75. It was noted that he claimed a good work record and denied social impairment. No depressive symptoms were noted, and it was noted that he was able to function as a full time security guard. Analysis PTSD The veteran's claim for a rating in excess of 30 percent for his service-connected PTSD with depression and anxiety is well grounded within the meaning of 38 U.S.C.A. § 5107(a). That is, the Board finds that the veteran has presented a claim which is plausible. The Board is also satisfied that all relevant evidence has been properly developed and that no further assistance is required to comply with the duty to assist under 38 U.S.C.A. § 5107(a). Under the applicable criteria, disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. VA has a duty to acknowledge and consider all regulations which are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). These regulations include, but are not limited to, 38 C.F.R. §§ 4.1 and 4.2. 38 C.F.R. § 4.1 requires that each disability be viewed in relation to its history and that there be emphasis upon the limitation of activity imposed by the disabling condition. 38 C.F.R. § 4.2 requires that medical reports be interpreted in light of the whole recorded history, and that each disability must be considered from the point of view of the veteran working or seeking work. These requirements for evaluation of the complete medical history of the claimant's condition operate to protect claimants against adverse decisions based on a single, incomplete or inaccurate report and enable VA to make a more precise evaluation of the level of the disability and of any changes in the condition. When there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board notes that the regulations pertaining to rating psychiatric disabilities were revised effective November 7, 1996. The Court has held that where the law or regulation changes after a claim has been filed or reopened, but before the administrative or judicial appeal process has been concluded, the version most favorable to the veteran will apply. Karnas v. Derwinski, 1 Vet. App. 308, 313 (1991). The veteran's PTSD was evaluated under 38 C.F.R. § 4.130, Diagnostic Code 9411, by the RO in the April 1999 supplemental statement of the case. The RO had previously considered the veteran's service-connected PTSD under the old rating criteria for mental disorders, 38 C.F.R. § 4.132, Diagnostic Code 9411, which was in effect prior to November 7, 1996. Under the old rating criteria for mental disorders, a 30 percent rating contemplated definite impairment in the ability to establish or maintain effective and wholesome relationships with people and the symptoms result in such reduction in initiative, flexibility, efficiency and reliability levels as to produce definite industrial impairment. A 50 percent evaluation contemplated considerable impairment of social and industrial adaptability. A 70 percent evaluation was to be assigned when the ability to establish and maintain effective or favorable relationships with people was severely impaired and the psychoneurotic symptoms were of such severity and persistency that there was severe impairment in the ability to obtain or retain employment. The schedular criteria provided that a 100 percent evaluation was warranted where the attitudes of all contacts except the most intimate are so adversely affected as to result in virtual isolation in the community; or where there are totally incapacitating psychoneurotic symptoms bordering on gross repudiation of reality with disturbed thought or behavioral processes associated with almost all daily activities such as fantasy, confusion, panic, and explosions of aggressive energy resulting in profound retreat from mature behavior; or the individual is demonstrably unable to obtain or retain employment. 38 C.F.R. § 4.132, Diagnostic Code 9405 (effective prior to November 7, 1996). Under the new rating criteria for mental disorders, effective November 7, 1996, a 30 percent rating is warranted for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is to be assigned for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. Additionally, under the new rating criteria for mental disorders, a 70 percent rating is warranted when there is occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty adapting to stressful circumstances (including work or a work-like setting); inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411 (1998). Under the new rating criteria for PTSD, a 100 percent rating is warranted where there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation or own name. 38 C.F.R. § 4.130, Diagnostic Code 9411 (effective November 7, 1996). When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions and the veteran's capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. When evaluating the level of disability from a mental disorder, the rating agency shall consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126. The veteran contends that his PTSD is more disabling than currently evaluated. The evidence of record includes the reports of two VA examinations, and the veteran's testimony in March 1998. As noted above, under the regulations in effect prior to November 6, 1996, the criteria for a 50 percent evaluation required a showing that the ability to establish or maintain effective and wholesome relationships with people is considerably impaired and, reduction in levels of reliability, flexibility and efficiency resulting in considerable industrial impairment. As explained below the Board finds that the manifestations of PTSD are not shown to meet the criteria for a rating greater than 30 percent under either the old or the revised regulations. On application of the old regulations to the pertinent evidence, the Board observes that the record does reflect that the veteran in 1995 and 1998 reported that he had experienced symptoms related to his service-connected PTSD, such as combat nightmares, nightsweats, flashbacks, excessive startle reflex, discomfort in crowds and public places, and episodes of anxiety. With regard to social impairment, in 1995 he claimed he was socially withdrawn, stress intolerant, persistently irritable, and suffered from episodes of agitation with minor provocation. His affect was constricted and mood was depressed. It was noted that his adaptive functioning was fair for work and poor for socialization. However, in 1998 he denied any history of social impairment, and claimed he had a close and supportive family life and always enjoyed good relations on the job. On examination in 1998, his affect was appropriate, his mood was neutral, and there was no disturbance of mental stream, thought or perception noted. He had no suicidal or homicidal ideation and his memory and concentration were intact. Thus, although the veteran has experienced some symptoms related to his PTSD with depression and anxiety, his actual social impairment related to his service-connected disability is no more than mild. The evidence of record also shows no specific correlation between occupational impairment and PTSD. To the contrary, the evidence has shown that the veteran was employed full time as a security guard, and that he had to retire from the police department due to his total left hip replacement. In sum, the pertinent evidence does not establish that manifestations of PTSD resulted in considerable social and industrial impairment, the criteria for a 50 percent rating, under the regulations in effect prior to November 16, 1996. In this regard, it also is noted that the veteran was assigned a GAF score of 70 to 75 in 1998. According to the American Psychiatric Association Diagnostic and Statistic Manual-IV (DSM-IV) a GAF of 70 is to be assigned when there are some mild symptoms or some difficulty in social, occupational, or school functioning, but generally functioning pretty well, and has some meaningful interpersonal relationships. A GAF of 75 is to be assigned if some symptoms are present, and they are transient and expectable reactions to psychosocial stressors, and there is no more than slight impairment in social, occupational or school functioning. Clearly such a score does not reflect industrial impairment that is more than definite or suggest disability in excess of that contemplated by the 30 percent evaluation assigned. With regard to the new rating criteria, the Board finds that a rating in excess of 30 percent is not warranted. Again, there is no evidence showing that the veteran's social impairment may be more than mild, and there is no evidence showing occupational impairment due to his PTSD, nor is there evidence of a flattened affect, circumstantial, circumlocutory, or stereotyped speech, difficulty in understanding complex commands, impairment of short- and long-term memory, impaired judgment, or impaired abstract thinking. Accordingly, the Board finds that the veteran's manifestations of his PTSD do not warrant a higher rating under either the old or the revised criteria. Total disability rating based on individual unemployability due to service-connected disabilities. As of the most recent rating decision in March 1996, the veteran's service connected disabilities consisted of residuals of a gunshot wound of the left hip, including residuals of a left hip replacement, evaluated as 50 percent disabling; PTSD; evaluated as 30 percent disabling, residuals of a shell fragment wound of the right buttock with sciatic neuritis, evaluated as 20 percent disabling; mechanical low back disability, evaluated as 20 percent disabling; scarring due to a gunshot wound of the right upper arm, evaluated as 10 percent disabling; and scarring of the abdominal area due to postoperative residuals of a gunshot wound, evaluated as 10 percent disabling. The combined rating is 80 percent. As noted above in the reasons and bases for findings and conclusions with respect to the increased rating issues, the applicable criteria are contained in 38 U.S.C.A. § 1155 and 38 C.F.R. §§ 4.1, 4.2, 4.7, and 4.10. The analysis mandated by the U.S. Court of Appeals for Veterans Claims (Court) in Schafrath is also for application. Under further applicable criteria, entitlement to a total disability rating based on individual unemployability may be assigned when, in the judgment of the rating agency, there is any impairment of mind or body sufficient to render it impossible for the average person to follow a substantially gainful occupation as a result of service connected disabilities. 38 C.F.R. §§ 4.15, 4.16. Obviously, in determining whether an individual is unemployable by reason of service connected disabilities, consideration must be given to the type of employment for which the veteran would be qualified. Such consideration would include education and occupational experience. Age, however, may not be considered a factor. 38 C.F.R. § 3.341. Unemployability associated with advancing age or intercurrent disability may not be used as a basis for assignment of a total disability rating. 38 C.F.R. § 4.19. If there is only one disability, this disability shall be ratable at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 4.16(a). It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service connected disabilities shall be rated totally disabled. Therefore, rating boards should submit to the Director, Compensation and Pension Service, for extraschedular consideration all cases of veterans who are unemployable by reason of service connected disabilities, but who fail to meet the percentage standards set forth in paragraph (a) of this section. 38 C.F.R. § 4.16(b). The Board finds that the veteran does meet the requirement of 38 C.F.R. § 4.16(a) in qualifying for a total disability rating, as the veteran's multiple service connected disabilities have a combined rating of 80 percent. However, the Board finds that the evidence set forth below does not show that the veteran is unable to secure or follow substantially gainful occupation as a result of his service connected disabilities under 38 C.F.R. § 4.16(b). In Hatlestad v. Derwinski, 1 Vet. App. 164 (1991), the Court referred to apparent conflicts in the regulations pertaining to individual unemployability benefits. Specifically, the Court indicated there was a need to discuss whether the standard delineated in the controlling regulations was an "objective" one based on the average industrial impairment or a "subjective" one based upon the veteran's actual industrial impairment. The Board is bound in its decisions by the regulations, the Secretary's instructions, and the precedent opinion of the chief legal officer of VA. 38 U.S.C.A. § 7104(c). In a pertinent precedent decision, the VA General Counsel concluded that the controlling VA regulations generally provide that veterans who, in light of their individual circumstances, but without regard to age, are unable to secure and follow a substantially gainful occupation as the result of service-connected disability shall be rated totally disabled, without regard to whether an average person would be rendered unemployable by the circumstances. Thus, the criteria include a subjective standard. It was determined that "unemployability" is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91 (O.G.C. Prec. 75-91); 57 Fed. Reg. 2317 (1992). Regulations provide that marginal employment shall not be considered substantially gainful employment and that marginal employment generally shall be deemed to exist when a veteran's earner annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist on a facts found basis, (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16(a). The Court has also recently addressed the question of marginal employment in the case of Faust v. West, No. 98-100 (U.S. Vet. App. February 15, 2000). Substantially gainful employment was therein defined as an occupation that provides the veteran with annual income that exceeds the poverty threshold for one person irrespective of the number of hours or days that the veteran actually works. The Court has held that a veteran's advancing age and non- service connected disabilities may not be considered in the determination of whether a veteran is entitled to a total disability rating based upon individual unemployability. For a veteran to prevail on a claim based on unemployability, it is necessary that the record reflect some factor which places the claimant in a different position than other veterans with the same disability rating. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). A review of the record shows that the veteran retired from the police department due to his service-connected left hip disability. There is evidence, however, showing that he has been employed full time, as a security guard, since at least 1995. Although a VA examiner in October 1998 indicated that the veteran was "not employable" with his condition, the examiner also noted that the veteran was working with his own comfortable limits, even though it was strenuous work for him. Another VA examiner in October 1998 indicated that the veteran was working security in a shopping mall, and because of his replaced hip, he could not run. It was also noted that he was capable of doing desk work with a limited amount of walking, and it would be understandable that he may miss some work when his back pain was troublesome. The evidence clearly establishes that the veteran is employed full time, which generally connotes about a 40 hour work week. The RO attempted to find out more information concerning the employment in December 1998, but the veteran failed to respond to the RO's request. Since this information is strictly within the veteran's control and he has failed to provide that information, VA has no further duty to assist in the development of the claim. See Wood v. Derwinski, 1 Vet. App. 190 (1991). It can be stated with a reasonable degree of certainty that the veteran would be earning at least the minimum wage which would mean that he is earning in excess of $8,316 which is the poverty threshold set for 1998 by the Census Bureau. 64 Fed. Reg. 68413 (1999). As such, the veteran is found to be engaged in substantially gainful employment and thus does not meet the regulatory requirements for a total rating based on individual unemployability. Under the circumstances of this case, it appears that the veteran's claim must be denied under the law. Sabonis v. Brown, 6 Vet. App. 426 (1994). ORDER Entitlement to a rating in excess of 30 percent for PTSD with depression and anxiety is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities is denied. REMAND As noted above, in June 1997 the Board remanded this matter to the RO for additional evidentiary development, to include scheduling the veteran for VA orthopedic and neurologic examinations. In reviewing the October 1998 VA examinations, the Board has noted several discrepancies as explained below, and finds that this matter must be remanded again for additional VA examinations to be scheduled. Residuals of a Gunshot Wound of the Left Hip With regard to the claim for an increased rating for residuals of a gunshot wound of the left hip, including residuals of a left hip replacement, the Board notes that this disability has been considered under both the rating criteria for a hip replacement (Diagnostic Code 5054), and the rating criteria for rating muscle injuries (Diagnostic Code 5317). Since a 50 percent rating is the maximum rating permitted under Diagnostic Code 5317, there must be evidence of markedly severe residual weakness, pain, or limitation of motion following implantation of a hip prosthesis (Diagnostic Code 5054) or additional disability (i.e., nerve damage, scarring, etc.) in order for a higher rating to be assigned. However, there is insufficient evidence to evaluate the veteran's service-connected left hip disability under any of the aforementioned impairments. On VA examination in 1998, one examiner indicated that his left hip scar was "painful to touch" and another examiner indicated that all scar marks were nontender. It was also noted that he had post-traumatic neuralgia of the left hip which caused functional loss, but this was not expressed in terms of additional range of motion loss. Residuals of a Shell Fragment Wound of the Right Buttock With regard to the claim for an increased rating for residuals of a shell fragment wound of the right buttock, the Board notes that this disability has been considered under the rating criteria for impairment of the right sciatic nerve (Diagnostic Code 8520). Although it was found that the veteran did not have right sciatica, it was noted that he had post-traumatic neuralgia of the right buttock which caused functional loss, but this was not expressed in terms of additional range of motion loss. X-rays showed a bullet in the right ischium, but the examiner did not indicate, however, any muscle damage or bone defect. Additionally, the examiner did not indicate the functional loss due to neurological damage as distinguished from functional loss due to muscle damage. In the June 1997 Remand, the Board noted that in prior neurologic evaluations in 1968 and in 1995, little was said of the disabling residuals due to muscle damage or bone defect, and that findings appeared to have been mostly related to sciatic nerve damage. Since there is no longer evidence of right sciatica, it is imperative that any other impairment associated with the service-connected right buttock disability be objectively noted. Scarring due to a Gunshot Wound of the Right Upper Arm With regard to the claim for increased rating for scarring due to a gunshot wound of the right upper arm, the record reflects that one VA examiner in October 1998 found that the veteran's right arm scars were sensitive to touch, but another VA examiner noted that "all the scar marks are nontender". This discrepancy should be clarified. Additionally, although it was noted that the veteran had functional loss due to the neurological damage from the gunshot wound to the right arm, the extent of the functional loss was not provided. Moreover, the VA examiner did not indicate whether there was any muscle damage involved, and if so the extent of the muscle damage and any resulting functional loss. Scarring of the Abdominal Area due to Postoperative Residuals of a Gunshot Wound With regard to the claim for an increased rating for scarring of the abdominal area due to postoperative residuals of a gunshot wound, the record reflects that a VA examiner in October 1998 found that the veteran's right abdomen scar was painful to touch, and another VA examiner found that "all the scar marks are nontender". This discrepancy must be clarified. Additionally, it should be noted whether there was any associated muscle or nerve damage, and the functional loss, if any, resulting therefrom. Mechanical Low Back Disability With regard to the service-connected low back disability, the Board notes that the veteran underwent a VA orthopedic examinations of the low back in October 1998, and although the examination reports included extensive commentary on the veteran's complaints, the examiners did not indicate the range of motion of the low back, or whether the low back exhibited weakened movement, excess fatigability, or incoordination. Likewise, the examiner did not indicate whether it was feasible to express findings of weakened movement, excess fatigability, or incoordination in terms of the degree of additional range of motion loss. These examinations are therefore found to be incomplete, as they do not provide sufficient commentary for the Board to render a fully informed decision regarding the veteran's claims. The RO's attention is again directed to the case of DeLuca v. Brown, 8 Vet. App. 202 (1995), wherein, the Court held that ratings based on limitation of motion do not subsume 38 C.F.R. §§ 4.40 or 4.45. DeLuca specified that the medical examiner should be asked to determine whether the joint in question exhibited weakened movement, excess fatigability or incoordination and that the determinations, if feasible, should be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability or incoordination. It was also held that 38 C.F.R. § 4.14 (avoidance of pyramiding) did not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including during flare-ups. The Board regrets the necessity to once again remand this case for additional development by the RO. However, there has been a failure to comply with the terms of the Board's June 1997 remand order, thus rendering the record incomplete and impeding the Board's review. These developmental deficiencies must be addressed prior to the Board rendering a decision. In light of the U.S. Court of Appeals for Veterans Claims (Court) directive to the Board regarding remands, the Board is compelled to remand this case for the RO to fully comply with the Board's remand. Stegall v. West, 11Vet. App. 268 (1998). In Stegall the Court held that a remand by the Board confers on the veteran, as a matter of law, the right to compliance with the remand orders and that a remand by the Board imposes upon the RO a concomitant duty to ensure compliance with all of the terms of the remand. The Court noted that where the remand orders of the Board are not complied with, the Board itself errs in failing to insure compliance. Accordingly, the case is REMANDED for the following actions: 1. The RO should contact the veteran and request that he submit the names and addresses of all health care providers, VA or private, who may have treated him for his service-connected disabilities resulting from gunshot wounds, since October 1998. After securing the necessary releases, the RO should request copies of any previously unobtained medical records for association with the claims folder. 2. The veteran should be scheduled for VA orthopedic and neurological examinations in order to ascertain the nature and severity of his service- connected left hip, right buttock, low back, right upper arm, and abdomen disabilities. The claims folder and Remand must be reviewed by the examiner prior to conducting the examination. All indicated special tests and studies should be conducted, to include range of motion studies expressed in degrees and in relation to normal range of motion. Specifically, all scarring related to the service-connected disabilities should be described in detail, including any symptoms due to such scarring such as pain, tenderness, ulceration, or effect on function. All muscles damaged by each wound should be identified, and the extent of damage incurred should be described in detail. Any neurologic damage and resulting functional impairment should be described. Any joint(s) affected, especially the left hip and low back should be evaluated on the basis of functional losses experienced by the veteran. The examiner(s) should take into account all functional impairments identified in §§ 4.40, 4.45, including pain on use, incoordination, weakness, fatigability, abnormal movements, etc. The severity of each such problem should be expressed in terms of additional range-of-motion loss beyond that which is clinically observed. A similar analysis should be conducted for the right arm, if muscle damage and/or scarring is found to affect function. All findings, opinions and bases therefor should be set forth in detail. 3. Following the completion of all development, the RO should review the veteran's claims based on all of the evidence of record. If any action taken remains adverse to the veteran, he and his representative should be provided a supplemental statement of the case and a reasonable period of time for response. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if appropriate. The appellant need take no action until otherwise notified. Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992); Booth v. Brown, 8 Vet. App. 109 (1995). The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). The purpose of this REMAND is to obtain additional information and to ensure due process of law. No inference should be drawn regarding the final disposition of the claim as a result of this action. This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. C. W. SYMANSKI Member, Board of Veterans' Appeals