BVA9501751 DOCKET NO. 93-04 103 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for tinnitus. 2. Entitlement to service connection for left below-the-knee numbness (to include a separate compensable rating for neurological changes secondary to missile injuries of the left thigh). 3. Entitlement to a separate, compensable evaluation for left ulnar neuropathy. 4. Entitlement to a separate, compensable evaluation for tender shell fragment wound scars. 5. Entitlement to an increased evaluation for residuals of a shell fragment wound of the left thigh, currently evaluated as 30 percent disabling. 6. Entitlement to an increased evaluation for residuals of a shell fragment wound of the left shoulder, currently evaluated as 20 percent disabling. 7. Entitlement to an increased evaluation for residuals of a shell fragment wound of the left hand, currently evaluated as 10 percent disabling. 8. Entitlement to an increased evaluation for residuals of a shell fragment wound of the left forearm, currently evaluated as 10 percent disabling. 9. Entitlement to a compensable evaluation for residuals of a shell fragment wound of the left side of the chest. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Fussell, Counsel REMAND The veteran had active service from January 1944 until April 1946. This matter comes before the Board of Veterans' Appeals (the Board) from rating decisions of May and July 1992 of the Chicago, Illinois, Regional Office (RO) of the Department of Veterans Affairs (VA). A rating decision of May 1992 granted service connection for residuals of a shell fragment wound of the left side of the chest and assigned a noncompensable rating. That rating decision also denied increased evaluations for residuals of the veteran's multiple shell fragment wound injuries and denied service connection for numbness "from foot to hip, left side." The veteran has applied to reopen his claim for service connection for tinnitus which had previously been denied by the RO in December 1986. He also now claims loss of use of the left upper extremity. A rating decision of July 1992 denied entitlement to special monthly compensation for loss of use of the left upper extremity and denied the application to reopen a claim for service connection for tinnitus. Following the issuance of a statement of the case (SOC) in July 1992, a VA Form 1-9 was received in August 1992 which, in part, constituted a notice of disagreement (NOD) as to the denial of the application to reopen the claim as to service connection for tinnitus. No disagreement with respect to the denial of special monthly compensation for loss of use of the left upper extremity has been received and, thus, no appeal has been developed with respect to that issue. The veteran was notified of rating decisions of December 1986, which denied service connection for defective hearing and tinnitus, and January 1989 which denied service connection for residuals of dental trauma. In VA Form 1-9 of July 1992 the veteran made reference to loss of hearing from the explosion that caused his service-connected shell fragment wounds and in VA Form 1-9 of September 1992 he again referred to having sustained dental trauma from those shell fragment wounds. It is not clear whether the veteran desires to apply to reopen his claims for service connection for defective hearing and for dental trauma but if this is his intention he and his representative should clarify whether they are applying to reopen the claims for service connection for defective hearing and dental trauma at the RO. Additionally, in VA Form 1-9 of December 1992 the veteran claimed entitlement to a total rating based on individual unemployability due to service-connected disabilities. This matter has not been adjudicated by the RO and is not inextricably intertwined with the issues currently developed for appellate consideration. Accordingly, the matter of the veteran's claim for a total rating is referred to the RO for appropriate consideration. Overall, it is clear that the veteran is not actually claiming entitlement to service connection for numbness of the left side or flank although that is the way the issue has been developed. Rather, he claims service connection for neurological disability of the left lower extremity from shell fragment wounds of the left thigh. There is, however, evidence on file of nonservice- connected low back pathology that might also cause some neurological changes in the lower extremity. A separate, compensable evaluation for the numbness in the left lower extremity, and for service-connected ulnar neuropathy, now rated as part and parcel of the residual of a shell fragment wound of the left forearm are sought in this appeal. The veteran claims that the most recent VA examination for rating purposes in December 1991 did not adequately evaluate his service-connected disabilities, particularly from a neurological standpoint, and the Board observes that he has never been afforded a comprehensive VA neurology evaluation. In this connection, the May 1992 rating decision denied service connection for numbness of the left lower extremity because "left hip X-rays again demonstrate sclerotic lesion in the neck region of the right femur" and the supplemental SOC of November 1992 indicated that "there is no objective evidence the veteran has numbness [of the left lower extremity] which is due to service connected disabilities or to his military service." On the other hand, the VA examination of December 1991 found that the veteran had paresthesia of the left hip extending to the foot as well as paresthesia of the left arm, left forearm, and left fifth finger. However, no medical opinion is on record which serves to either relate or disassociate any neurological disability of the extremities with the residuals of his service-connected shell fragment wounds. In this connection, the VA must rely solely on independent medical evidence, and not medical judgment of VA adjudicators, in reaching its decision. Colvin v. Derwinski, 1 Vet.App. 171, 175 (1990). The veteran claims entitlement to a separate, compensable evaluation for left ulnar neuropathy as residuals of shell fragment wound of the left forearm and this will now be addressed by the Board as a separate issue in light of the denial of an increased evaluation for residuals of a shell fragment wound of the left forearm which has been described as also including, as part and parcel thereof, left ulnar nerve involvement. However, it does not appear that the RO has specifically addressed one of the principles of combined ratings of muscle injuries, specifically 38 C.F.R. § 4.55(g) (1993) which provides that "[m]uscle injury ratings will not be combined with peripheral nerve paralysis ratings for the same part, unless affecting entirely different functions." On remand, the RO should specifically address this aspect of the case. In VA Forms 1-9 of July and September 1992 the veteran reported that his residual shell fragment wound scars were tender to touch and in the latter he indicated that no consideration (apparently for rating purposes) had been given to this aspect of his disabilities. From this, the Board concludes that the veteran is claiming entitlement to separate, compensable evaluations for multiple tender scars as residuals of shell fragment wounds. However, this issue has not been adjudicated by the RO or otherwise developed for appellate adjudication and is, therefore, is referred to the RO for appropriate development, to include initial adjudication and subsequent development for appellate consideration, if denied. Lastly, the veteran has reported receiving treatment at a VA medical facility in Marion, Illinois, but the only VA outpatient treatment records on file are those from December 1990 to November 1991. In the judgment of the Board, obtaining subsequent VA outpatient treatment records may be helpful in adjudicating the claims. Accordingly, the case is REMANDED for the following actions: 1. The RO should obtain all VA outpatient treatment records of treatment, examination, or evaluation of the veteran at a VA medical facility in Marion, Illinois, since November 1991. When obtained, they should be associated with the claims folder. 2. The veteran should be afforded comprehensive VA surgical and neurology examinations to determine the extent and severity of his service-connected residuals of shell fragment wounds as well as the nature, cause, and etiology of his left ulnar neuropathy and of any claimed neurological disability of the left lower extremity that he may now have. An opinion or diagnosis should be rendered to whether the left ulnar neuropathy affects an entirely different function than the muscles injured in the left forearm and whether the veteran now has neurological disability of the left lower extremity, to include the cause and etiology of any such disability and whether it also affects an entirely different function than the muscle injured by shell fragment wound of the left thigh. Moreover, a detailed description of all residual scars should be recorded, to include whether these scars are tender or painful, fully nourished or ulcerative. Detailed reasons and bases for all diagnoses and opinions reached should be legibly recorded. All of the veteran's subjective complaints and all objective findings should be recorded. All indicated tests and studies, including X-rays and electrodiagnostic testing, should be conducted, if necessary. The claims folder must be made available for review prior to the examination in order to facilitate study of this case. 3. Thereafter, the RO should readjudicate the issues on appeal, to include the "new" issues of whether the veteran is entitled to separate, compensable evaluations for (1) left ulnar neuropathy, (2) neurological disability of the left lower extremity, and (3) multiple tender scars as residuals of shell fragment wounds. If the latter claims are denied, the veteran and his representative must be informed that in order to initiate an appeal as to any denial of these claims (i.e., 1 thru 3) they must file a NOD with respect thereto. After providing the veteran and his representative the appropriate period of time within which to file a NOD. If a NOD is received as to the denials of the "new" issues, they should be provided with an SSOC addressing the old and "new" issues. The veteran and his representative should be informed that they may, at their option, file a substantive appeal (VA Form 1-9) as to the old issues currently developed for appellate consideration but they must be informed that to perfect an appeal as to any denials of the "new" issues, they must file a substantive appeal (VA Form 1-9) as to those issues in order to perfect an appeal as to the "new" issues.. Thereafter, if otherwise in order, the case should be returned to the Board for further appellate adjudication after compliance with all applicable appellate procedures. No action is required of the appellant until he is notified. MICHAEL D. LYON Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1993).