Citation Nr: 0003830 Decision Date: 02/14/00 Archive Date: 02/15/00 DOCKET NO. 95-25 468 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to an increased evaluation for residuals of a gunshot wound to the left abdomen, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Daniel G. Krasnegor, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Christopher J. Gearin, Associate Counsel INTRODUCTION The veteran had active service from August 1943 to February 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. In a decision dated August 4, 1998, the Board denied the appellant's increased rating claim. He appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In a May 1999 decision, the Court vacated and remanded the case to the Board for readjudication consistent with its decision. REMAND Pursuant to the joint motion for remand approved by the Court in May 1999, the Board finds that further development is necessary in this case. Accordingly, the case is REMANDED to the RO for the following actions: 1. The RO should request the veteran to identify the names, addresses, and approximate dates of treatment for all health care providers who may possess additional records pertinent to his claims since July 1997. The RO should also request that the veteran identify the names and addresses of any and all former employers in order to secure attendance records at any job held since April 1946, as well as documentary evidence that the appellant was denied higher paying positions due to his gunshot wound residuals. After securing any necessary authorization from the veteran, the RO should attempt to obtain copies of those records identified that have not been previously secured. 2. The RO should schedule the veteran for a comprehensive VA examination with respect to any left abdominal gunshot wound residuals. The claims folder and a copy of this remand must be made available to and reviewed by the examiner in conjunction with the examination. The examination report must be typed. In accordance with DeLuca v. Brown, 8 Vet. App. 202 (1995), all indicated tests and studies with respect to the residuals of the gunshot wound of the left abdomen should be conducted, including x-ray and range of motion studies. Range of motion should be recorded in numbers of degrees, and the normal ranges of motion should be provided. Any portion that is painful or results in functional impairment should be so designated. The examiner should elicit from the veteran his account of how the residuals of his left abdominal gunshot wound affect his daily activities and employability. The report of the examination should include a detailed account of all manifestations of the residuals of his left abdominal gunshot wound found to be present and the effects of the disability on the veteran's ordinary activity. For example, the examiner must: a) take into account all functional impairments, including pain on use, incoordination, weakness, fatigability, and abnormal movements, etc. b) note the presence or absence of any objective evidence of any entrance and exit scars that indicate the track of the missile or of any imbedded fragments; any loss of deep fascia, muscle substance, or normal firm resistance of muscles compared to the opposite side; and whether strength and endurance tests demonstrate positive evidence of impairment. The examiner must then provide an opinion with respect to the degree to which any gunshot residuals interfere with activities of daily living. If the veteran describes flare-ups of pain, the examiner must offer an opinion as to whether there would be additional limits on functional ability during flare-ups, and if feasible, express this in terms of additional degrees of limitation of motion during the flare-ups. The examiner should attempt to determine whether the source of any pain is due to residuals of the gunshot wound or due to any painful residual gunshot or related surgical scars. If the examiner is unable to offer an opinion as to the nature and extent of any additional disability during a flare-up that fact should be so stated. 3. After completion of the above, the RO should readjudicate the claim with consideration given to all of the evidence of record, including any additional medical evidence obtained by the RO pursuant to this remand. In determining whether the veteran is entitled to an increased evaluation, the RO must consider all potentially applicable regulations. Moreover, where the law or regulations change while a case is pending, the version most favorable to the claimant applies, absent congressional intent to the contrary. Karnas v. Derwinski, 1 Vet. App. 308, 312-313 (1991). In this regard, the Board notes that the criteria for rating muscle injuries were revised effective July 3, 1997. The RO must also document in writing their consideration of the Court's decision in DeLuca; the application of 38 C.F.R. §§ 4.40 and 4.45 (1999); as well as the appellant's entitlement to an extraschedular rating pursuant to 38 C.F.R. § 3.321 (1999). If the benefit sought on appeal remains denied, the veteran and his attorney should be furnished a supplemental statement of the case and given the opportunity to respond thereto. Thereafter, the case should be returned to the Board, if in order. The veteran need take no action until otherwise notified, but he and/or his attorney may furnish additional evidence and argument while the case is in remand status. Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992); Booth v. Brown, 8 Vet. App. 109,112 (1995). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board or by the Court 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. DEREK R. BROWN Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. 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) (1999).