Citation Nr: 0002478 Decision Date: 02/01/00 Archive Date: 02/10/00 DOCKET NO. 95-28 390 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to an increased evaluation for residuals of shell fragment wounds of the right shoulder, currently evaluated as 10 percent disabling. 2. Entitlement to an increased evaluation for residuals of shell fragment wounds of the thoracic area, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Christopher J. Gearin, Associate Counsel INTRODUCTION The veteran had active service from October 1942 to December 1945. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 1995 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In a decision dated March 17, 1998, the Board granted the appellant's claim for entitlement to an increased evaluation for residuals of shell fragment wounds of the right chest, with fibrous pleurisy, and assigned a 30 percent rating. In addition, the Board denied the appellant's claim for entitlement to an increased evaluations for residuals of shell fragment wounds of: 1) the right shoulder, evaluated as 10 percent disabling; and 2) the thoracic area, evaluated as 10 percent disabling. He appealed this decision to the United States Court of Appeals for Veterans Claims (the Court). In a March 29, 1999 decision, in response to a joint motion, the Court vacated and remanded the issues on appeal with respect to the residuals of shell fragment wounds of the right shoulder and the thoracic area to the Board for readjudication consistent with its decision, and dismissed the issue of entitlement to an increased evaluation for residuals of shell fragment wounds of the right chest, with fibrous pleurisy. REMAND Pursuant to the Court's March 29, 1999 order, the Board is remanding this case for the following reasons. First, a VA orthopedic examination is required because the July 1997 VA examiner did not discuss the residuals of the shell fragment wound to muscle group XX. Therefore, a remand is necessary in order to secure an examination report which describes the extent of the veteran's residual rib fractures and muscle injuries, and considers the application of the provisions of 38 C.F.R. §§ 4.47, 4.50, 4.52, 4.53, 4.54, 4.56, 4.72 and 4.73 (1996) and 38 C.F.R. §§ 4.56, 4.72, and 4.73 (1999). Second, the Board did not consider the regulations with respect to rating muscle group injuries that were in effect prior to July 3, 1997 (to include 38 C.F.R. sections 4.53 - 4.56, 4.72, 4.73 (1996)) or that were in effect thereafter. See Douglas v. Derwinski, 2 Vet. App. 435 (1992) (en banc). If, after a claim has been filed, the law changes before the administrative or judicial appeal process has been concluded, the version most favorable to appellant applies. Karnas v. Derwinski, 1 Vet. App. 308, 313 (1991). Thus, the RO must readjudicate the issues on appeal considering the medical examination results discussed above and the application of the regulations in effect prior to, and subsequent to, July 3, 1997 with respect to evaluating residual shell fragment wounds. Finally, the RO must consider the appellant's claims with respect to any functional loss secondary to pain, weakness, fatigability, and incoordination with joint movement pursuant to 38 C.F.R. §§ 4.40 and 4.45 (1999). See DeLuca v. Brown, 8 Vet. App. 202 (1995). In view of the foregoing, the Board finds that additional development is necessary, and the case is REMANDED to the RO for the following actions: 1. The RO should contact the appellant and request that he identify the names, addresses and approximate dates of treatment for all health care providers from whom he has recently received treatment for the service-connected residual shell fragment wound disabilities that are on appeal. With any necessary authorization from the appellant, the RO should attempt to obtain and associate with the claims file any medical records identified by the appellant which have not been secured previously. In any event, the RO should obtain such records for the appellant from all VA medical facilities used by the appellant from March 1998 to the present. 2. The RO should arrange for a VA orthopedic examination of the appellant by a board certified specialist, if available, to determine the nature and extent of residuals of a shell fragment wound of the right shoulder and the thoracic area. The orthopedist should be specifically requested to identify the affected muscle groups and joints (specifically to include muscle group XX). Tests of joint movement against varying resistance should be performed. The extent of any incoordination, weakened movement, and excess fatigability on use should be described. The physician should be requested to identify any objective evidence of pain or functional loss due to pain. The physician should also express an opinion concerning whether there would be additional limits on functional ability during flare-ups (if the appellant describes flare-ups), and, if feasible, express this in terms of additional degrees of limitation of motion during flare-ups. If this is not feasible, the physician should so state. The orthopedist should be requested to describe in detail the appearance and characteristics of associated scars. The claims file must be made available to the physician prior to the examination. 3. Thereafter, the RO should review the claims file and ensure that all development actions, including the medical examination, has been conducted and completed in full. Then, the RO should undertake any other indicated development and readjudicate the issues on appeal. After completion of the above, the RO should readjudicate the claims as styled on the title page of this remand, considering both the criteria in effect prior to July 3, 1997, as well as the criteria effective on and after July 3, 1997. The RO should also consider application of 38 C.F.R. § 4.40 regarding functional loss due to pain and 38 C.F.R. § 4.45 regarding weakness, fatigability, incoordination or pain on movement of a joint. See DeLuca v. Brown, 8 Vet. App. 202 (1995). If the benefits sought on appeal are not granted to the veteran's satisfaction, the RO should issue a Supplemental Statement of the Case, and the appellant and his representative should be provided an opportunity to respond. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. By this REMAND, the Board intimates no opinion as to any final outcome warranted. No action is required of the appellant until he is otherwise notified by the RO. 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. NADINE W. BENJAMIN Acting 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).