Citation Nr: 0004868 Decision Date: 01/05/00 Archive Date: 03/02/00 DOCKET NO. 98-03 361A DATE On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUE Entitlement to an increased rating for residuals of a shell fragment wound (SFW) of the right anterior thigh, Muscle Group XIV, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD B.E. Jordan, Counsel INTRODUCTION The veteran had active military service from September 1969 to April 1971. This appeal to the Board of Veterans' Appeals (Board) arises from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut. REMAND The veteran asserts that his service-connected right thigh disability is more disabling than currently evaluated. The record shows that the subjective complaints include burning, pain, and discomfort in the right thigh when standing for long periods of time. The veteran also asserts that these symptoms interfere with his employment duties. In March 1997, the RO denied the veteran's claim for an increased rating for the disability at issue. In reaching this determination, the RO considered the report of a VA examination that revealed, in pertinent part, minimal tissue loss on the right thigh and muscle penetration of the anterior right thigh. There was no tendon damage, bone penetration, joint penetration, or nerve damage. The anterior thigh strength was good. There was no evidence of constant pain. X-rays of the right femur dated January 1997 revealed, in pertinent part, shrapnel in the upper thigh on the right side; otherwise unremarkable femur. The diagnosis was shrapnel in the upper thigh on the right side-otherwise unremarkable femur. Based on these findings the RO determined that there was no basis for the assignment of a higher disability evaluation based on the criteria set forth in 38 C.F.R. 4.73, Diagnostic Code 5314 (1999). The veteran's representative in a VA Form-646 asserts that the RO failed to consider other pertinent rating codes including 38 C.F.R. 4.40 when evaluating the veteran's claim. It is also argued that Esteban v. Brown, 6 Vet..App. 259 (1994), is for application in assigning a separate evaluation for a scar. 2 - The Board notes that the veteran's right thigh disability involving the musculoskeletal system. In evaluating the severity of the veteran's right thigh disability, consideration must be given to VA Schedule for Rating Disabilities pertaining to the musculoskeletal complex provided in 38 C.F.R. Part 4 and the application of 38 C.F.R. 4.40 (1999), regarding functional loss due to pain, and 38 C.F.R. 4.45 (1999), regarding weakness, fatigability, incoordination or pain on movement of a joint. See DeLuca v. Brown, 8 Vet. App. 202 (1995). In that connection, the Board notes that the January 1997 examination is the most current orthopedic examination of record; however, it does not provide range of motion findings with respect to the right thigh. Thus, the Board is of the view that another VA examination as set forth below is necessary in this matter. In light of the current state of the record, the Board concludes that further evidentiary development would be helpful to an equitable determination of this appeal. See Littke v. Derwinski, 1 Vet. App. 90 (1990); Green v. Derwinski, 1 Vet. App. 121 (1991). Accordingly, the case is REMANDED to the RO for the following actions: 1. The RO should contact the veteran and request that he identify the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who have currently treated him for his service-connected residuals of a SFW of the right anterior thigh, Muscle Group XIV. With any necessary authorization from the veteran, the RO should attempt to obtain copies of pertinent treatment records identified by the veteran which are not currently of record. 2. Thereafter, the veteran should be afforded a VA examination to determine the current severity his service-connected residuals of SFW of the right anterior thigh with damage to muscle group XIV. The claims - 3 - folder and a copy of this Remand should be made available to the examiner for review. All indicated studies, including x-rays, should be performed. The examiner should report all findings related to the service-connected residuals of SFW of the right anterior thigh with damage to muscle group XIV in detail. The examiner should also provide range of motion findings related to any joint affected by the service-connected residuals of SFW of the right anterior thigh with damage to muscle group XIV. The examiner is requested to specifically provide a description of all associated scarring of the right thigh. It should be noted whether any identified scarring is tender and painful on objective demonstration, is poorly nourished, superficial, has repeated ulceration, or affects the function of any joint. Tests of joint movement against varying resistance should be performed by the examiner. The examiner should note in specific degrees the range of motion of the effected joint(s). Muscle strength should be measured, as compared to the left leg, and specifically noted numerically. The extent of any incoordination, weakened movement and excess fatigability on use should also be described by the examiner. The examiner should be requested to identify any objective evidence of pain or functional loss due to pain. The examiner should also express an opinion concerning whether there would be additional limits on functional ability during flare-ups (if the veteran describes flare- ups), and, if feasible, express this in terms of additional degrees of limitation of motion during flare-ups. The examiner should provide an opinion concerning the impact of the veteran's disability on his industrial adaptability. If this is not feasible, the examiner should 4 - so state. The rationale for all opinions expressed should be explained. 3. The RO should ensure that the examination report contains all requested information. Stegal v. West, 11 Vet. App. 268 (1998). Thereafter, the RO should undertake any other indicated development and readjudicate the issue on appeal, with consideration of a separate rating for scaring pursuant to Estaban v. Brown, 6 Vet. App. 256, 262 (1994), if appropriate, and consideration of 38 C.F.R. 4.40, 4.45, if appropriate. 4. If the benefit sought on appeal is not granted to the veteran's satisfaction, the RO should issue a Supplemental Statement of the Case and provide the veteran and his representative with an appropriate opportunity to respond. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. All issues properly in appellate status should be returned to the Board at the same time. By this REMAND, the Board intimates no opinion as to any final outcome warranted. No action is required of the veteran until he is otherwise 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 5 - 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. MILO H. HAWLEY 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). 6 -