Citation Nr: 0005523 Decision Date: 02/29/00 Archive Date: 03/07/00 DOCKET NO. 93-24 158 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, Philippines THE ISSUES 1. Entitlement to service connection for arthritis. 2. Entitlement to a rating in excess of 20 percent for residuals of a shrapnel wound of the right chest with metallic foreign body in the lung. 3. Entitlement to a rating in excess of 10 percent for residuals of a shrapnel wound of the right thigh with metallic foreign body. 4. Entitlement to compensable evaluations for scars of the right arm, right forearm and abdomen with metallic foreign body. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Appellant, Spouse, P. ATTORNEY FOR THE BOARD G. A. Wasik, Associate Counsel INTRODUCTION The veteran had active honorable service during World War II, and was a prisoner of war (POW) of the Japanese government from April 1942 to August 1942. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In January 1993, the RO, in pertinent part, denied increased ratings for residuals of a shrapnel wound to the right chest, residuals of a shrapnel wound to the right thigh, and scars on the right arm, forearm and abdomen. The RO also denied service connection for post- traumatic osteoarthritis. The Board notes on an April statement the veteran appears to claim service connection for a right hand and fingers, right knee injury as a result of the shrapnel wounds he received during active duty. On an August 1997 statement he claimed entitlement to a total disability rating for compensation purposes based on individual unemployability. During a February 1998 RO hearing the veteran claimed that he fractured his right wrist as a result of weakness due to his service-connected disabilities. These issues have been neither procedurally prepared nor certified for appellate review and are referred to the RO for initial consideration and appropriate adjudicative action. Godfrey v. Brown, 7 Vet. App. 398 (1995). The issues on appeal were originally before the Board in October 1995 and August 1998. The claims were remanded in October 1995 for further evidentiary development and in 1998 to afford the veteran a hearing. REMAND 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 United States Court of Appeals for Veterans Claims (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. Entitlement to service connection for arthritis The Board notes in its October 1995 remand instructions the RO was to arrange for the veteran to be examined to determine the etiology of any arthritis that was found to be present. The Board required that an opinion be obtained as to whether any arthritis of any joint found on examination was related to the veteran's service-connected shrapnel wound disabilities. The Board further directed that an opinion be obtained as to whether the veteran had post-traumatic arthritis, and if so, in what joints. Review of the claims file reveals the veteran underwent VA examinations in February 1996. The RO determined that the examinations were deficient in that they did not include the requested opinions regarding the etiology of any arthritis found and returned the file to the examiner to amend his report. In April 1996 the examiner provided the opinion that the veteran did not have arthritis of the joints as a result of his shrapnel wounds. The examiner did not, however, provide an opinion as to whether the veteran had post-traumatic osteoarthritis, and if so, what joints. The RO is advised that the Board is obligated by law to ensure that the RO complies with its directives, as well as those of the Court. The Court has stated that compliance by the Board or the RO is neither optional nor discretionary. Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance, and a further remand of the case will be mandated. See Stegall v. West, 11 Vet. App. 268 (1998). The Board notes the veteran was a POW for more than 30 days. Under 38 C.F.R. § 3.309(c), if post-traumatic osteoarthritis is manifested to a compensable degree in a former POW at any time after discharge from service, the disorder is entitled to presumptive service connection. The record of an April 1984 VA prisoner of war protocol examination on file shows the veteran reported he was subject to beatings and torture while held as a prisoner of war. While earlier dated radiographic studies on file are negative for an arthritic disease process, the Board notes that the examinations conducted in connection with the current appeal are dated and without a full x-ray series to ascertain which joints are affected by arthritis. The Board finds the issue of entitlement to service connection for arthritis must be remanded in order to determine if the veteran currently has traumatic osteoarthritis. Increased Ratings Claims The Board notes the last time the veteran's service-connected residuals of shrapnel wounds to the right chest and left thigh, and the scars to the right forearm, right arm and abdomen were evaluated for compensation purposes was in 1996. The Court has held that the duty to assist the veteran in obtaining and developing facts and evidence to support his claim includes obtaining pertinent outstanding medical records as well as adequate VA examinations. Littke v. Derwinski, l Vet. App. 90 (l990). This duty includes an examination by a specialist when needed. Hyder v. Derwinski, l Vet. App. 221 (l99l). The Board finds current VA examinations are required in order to accurately rate the current symptomatology attributable to the veteran's service-connected disabilities. The Board further notes the veteran reported at his February 1998 RO hearing that he had been receiving physical therapy from VA facilities. These records have not been associated with the claims file. On a statement received at the RO in September 1997, the veteran's representative reported he had submitted four pages of treatment records from the VA medical center located in East Orange, New Jersey. However, only one page of records was associated with the claims file. An attempt must be made to secure all outstanding treatment records. Accordingly, this case is REMANDED for further development: 1. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). 2. The RO should contact the veteran and request that he identify the names, places and approximate dates of treatment for all medical health care providers, VA and non-VA, inpatient and outpatient, who may posses additional records referable to his treatment for arthritis and/or for his service- connected residuals of a shrapnel wound to the right chest and right thigh and for scars on the right arm, right forearm and abdomen. After obtaining any necessary authorization or medical releases, the RO should request and associate with the claims file legible copies of the veteran's complete treatment reports from all sources identified whose records have not previously been secured. Regardless of the veteran's response, the RO should secure all outstanding VA treatment records. 3. The RO should arrange for a VA orthopedic/surgical examination(s) of the veteran by an orthopedic surgeon or other appropriate specialist(s) for the purpose of ascertaining the nature, extent of severity, and etiology of any arthritis which may be present, and also to determine the nature and extent of severity of the residuals of shrapnel wounds to the right chest and right thigh with metallic foreign body and also for the scars on the right arm, right forearm and abdomen. Any further indicated special studies must be conducted. The claims file and a separate copy of this remand must be made available to and reviewed by the examiner(s) prior and pursuant to conduction and completion of the examination(s) and the examination report(s) must be annotated in this regard. With the veteran's consent, the examiner(s) should have the veteran undergo radiographic studies to ascertain which joints have been affected by an arthritic disease process. The examiner(s) must be requested to express an opinion as to whether the veteran has arthritis, including post-traumatic arthritis in any joint due to combat incurred shrapnel wounds and/or secondary to beatings sustained as a prisoner of war. The examiner(s) must record pertinent medical complaints, symptoms, and clinical findings, including specifically, where applicable, active and passive range of motion, and comment on the functional limitations, if any, caused by the appellant's service connected disabilities. It is requested that the examiner(s) provide explicit responses to the following questions for each of the increased rating claims remanded by this decision: (a) Does the service connected disability involve only the joint structure, or does it also involve the muscles and nerves? (b) Does the service connected disability cause weakened movement, excess fatigability, and incoordination, and if so, can the examiner(s) comment on the severity of these manifestations on the ability of the appellant to perform average employment in a civil occupation? If the severity of these manifestations cannot be quantified, the examiner(s) should so indicate. (c) With respect to the subjective complaints of pain, the examiner(s) is requested to specifically comment on whether pain is visibly manifested on movement of the joints, the presence and degree of, or absence of, muscle atrophy attributable to the service connected disability, the presence or absence of changes in condition of the skin indicative of disuse due to the service connected disability, or the presence or absence of any other objective manifestation that would demonstrate disuse or functional impairment due to pain attributable to the service connected disability. (d) The examiner(s) is also requested to comment upon whether or not there are any other medical or other problems that have an impact on the functional capacity affected by the service connected disability, and if such overlap exists, the degree to which the non- service connected problem creates functional impairment that may be dissociated from the impairment caused by the service connected disability. If the functional impairment created by the non-service connected problem can not be dissociated, the examiner(s) should so indicate. The examiner(s) is further requested to identify which muscle groups have been affected by the service-connected shrapnel wounds and to determine the severity of each disability (right chest, right thigh, right arm, right forearm and abdomen) on the basis of being slight, moderate, moderately severe or severe muscle damage using the criteria set out in 38 C.F.R. § 4.56. With regard to service-connected scars, the examiner(s) must provide an opinion as to whether the scars are poorly nourished with repeated ulceration and/or tender and painful on objective demonstration and/or limit the function of the part affected Any opinions expressed must be accompanied by a complete rationale. 4. Thereafter, the RO should review the claims file to ensure that all of the foregoing requested development has been completed. In particular, the RO should review the requested examination report(s) and required opinions to ensure that they are responsive to and in complete compliance with the directives of this remand and if they are not, the RO should implement corrective procedures. See Stegall v. West, 11 Vet. App. 268 (1998). 5. After undertaking any development deemed essential in addition to that specified above, the RO should readjudicate the claims on appeal. As to the increased rating claims, the RO should document its consideration of the applicability of the criteria under 38 C.F.R. §§ 3.321(b)(1), 4.40, 4.45, 4.59 (1999). If the benefits sought on appeal are 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. RONALD R. BOSCH Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), only a decision of the Board is appealable to the Court. 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).