Citation Nr: 0007725 Decision Date: 03/22/00 Archive Date: 03/28/00 DOCKET NO. 98-11 943A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to an evaluation in excess of 20 percent for residuals of a wound to the left flank (just above the crest of the left ilium). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. S. Hughes, Associate Counsel REMAND The veteran served on active duty from April 1966 to April 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 1998 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California, which denied the veteran's claim of entitlement to an evaluation in excess of 20 percent for residuals of a gunshot wound, left buttock. Service medical records reflect that on May 29, 1967, the veteran sustained a perforating, through and through, gunshot wound to his left flank which grazed the iliac crest and damaged gluteus muscles. On that same day, the veteran underwent debridement of the gunshot wound which revealed a moderate amount of damage to the gluteus muscles and a small crack in the posterior aspect of the iliac wing. He was then evacuated to an Army hospital in the Ryukyu Islands. When admitted to this hospital, the wound was described as a large transverse wound across his left flank, down into the muscle but not into the peritoneum. There was no artery or nerve involvement. He underwent secondary closure on June 16, 1967. The operation report reflects that the old skin edge was excised and then the skin and subcutaneous tissue was undermined all around the wound for a distance of approximately two inches from the wound edge. In the tract, deep in the muscle, a through-and-through Penrose drain was placed. All sutures were removed on July 1, 1967. A discharge planned for July 3, 1967, was canceled due to malaria. He remained hospitalized until August 7, 1967, at which time he was placed on a light duty profile which precluded strenuous physical activity and field duty. In September 1967 it was noted that he continued to experience pain and the profile was extended. In February 1968, he was seen for persistent left hip pain with prolonged standing, bending, or sleeping on the left side. He was placed on a permanent profile which precluded prolonged standing and marching. In August 1968 he was seen for complaints of left hip pain and the area over the sacrum was noted to be very tender. In March 1998, the veteran underwent an examination to assess the current level of impairment associated with his left buttock gunshot wound. The examiner noted that the claims folder was not available for review and the report of this examination does not reflect that the muscles injured by the gunshot were identified or whether the residuals of the wound resulted in a lowered threshold of fatigue or fatigue-pain. See 38 C.F.R. § 4.56(c) (1999). Additionally, reports of X- ray studies in conjunction with this examination include findings of degenerative osteophytosis of the lumbar spine, degenerative change of the left sacroiliac joint and degenerative arthritis of both hips. However, there is no opinion as to whether these changes are related to the veteran's gunshot injury. Accordingly, this examination simply does not provide an adequate picture of the degree of disability caused by residuals of the gunshot wound. Review of the claims file shows that the veteran was afforded a personal hearing at the RO on July 14, 1999. However, the transcript of this hearing is not available for review. To ensure that VA has met its duty to assist the veteran in developing the facts pertinent to his claim and to ensure full compliance with due process requirements, the case is REMANDED to the RO for the following development: 1. The RO should associate with the claims file a copy of the transcript of the personal hearing that appears to have been held on July 14, 1999. 2. The RO should request that the veteran provide the names and addresses of all health care providers who have treated him for any complaints associated with the gunshot wound to his low back. After obtaining any necessary authorization from the veteran, the RO should obtain and associate with the claims folder legible copies of complete treatment records from those facilities identified by the veteran which have not already been secured. Regardless of the veteran's response, the RO should obtain all outstanding VA records of treatment. 3. The RO should afford the veteran an examination by a qualified physician to determine the severity of the residuals of the gunshot wound to his low back. The examiner should identify all muscles which were damaged by the gunshot and indicate whether any of the cardinal signs and symptoms of muscle disability are present (i.e, loss of power, weakness, lowered threshold of fatigue, fatigue- pain, impairment of coordination and uncertainty of movement). The examiner is also asked to comment on whether degenerative osteophytosis of the lumbar spine, degenerative change of the left sacroiliac joint, and/or arthritis of the hips is/are due to the gunshot wound and, if so, the level of impairment associated with such pathology. The claims folder must be made available to the examiner in connection with the examination. All indicated special studies deemed necessary are to be accomplished. 4. Thereafter, the RO should review the claims file to ensure that all of the foregoing requested development has been completed. After undertaking any development deemed appropriate in addition to that requested above, the RO should readjudicate the veteran's claim. If the benefit requested on appeal is not granted to the veteran's satisfaction, the RO should issue a supplemental statement of the case. A reasonable period of time for a response should be afforded. Thereafter, the case should be returned to the Board for final appellate review, if otherwise in order. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the veteran until he is notified by the RO. 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). 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. Gary L. Gick 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).