Citation Nr: 0003828 Decision Date: 02/14/00 Archive Date: 02/15/00 DOCKET NO. 94-16 585 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for residuals of wounds of the lower extremities, to include scars, claimed as due to a land mine explosion. 2. Entitlement to a compensable evaluation for a fracture of the right third metatarsal. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARINGS ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD Tresa M. Schlecht, Counsel INTRODUCTION The veteran had active service from February 1942 to November 1945. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 1993 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. In pertinent part, the RO denied a claim of entitlement to service connection for wounds of the lower extremities. The RO granted service connection for a fracture of the right third metatarsal and assigned a noncompensable evaluation for that disability. These determinations, among other issues, were appealed to the Board. The Board denied service connection for wounds of the lower extremities and denied an increased (compensable) evaluation for a fracture of the right third metatarsal in a May 1996 Board decision. The veteran appealed the May 1996 Board decision to the United States Court of Appeals for Veterans Claims (Court) (formerly, the United States Court of Veterans Appeals). By a decision issued in February 1999, the Court vacated the part of the May 1996 Board decision regarding denial of service connection for wounds of the lower extremities, claimed as due to a land mine explosion, and the denial of an increased (compensable) evaluation for a fracture of the right third toe. These issues were remanded to the Board. After review of all the materials of record, including the arguments on appeal to the Court, and the February 1999 decision of the Court, the Board finds that the veteran's claim for service connection for wounds of the lower extremities, claimed as due to a land mine explosion, and the claim for service connection for scars of the lower extremities due to the claimed wounds, is appropriately characterized a set forth on the title page of this decision. REMAND In its February 1999 decision, the Court concluded that the 1993 statement by a VA medical examiner that the veteran complained of punctate scars on the legs from shrapnel wounds, and the examiner's statement that some peripheral vascular changes and purpura were present, and the inclusion of a diagnosis, by history, of shell fragment wounds with well healed scars, was sufficient to well ground the claim for service connection for lower extremity wounds, and residual scars, when considered in light of the veteran's testimony and statements. The Court concluded that the duty to assist under 38 U.S.C.A. § 5107(a) requires that a VA examination be afforded the veteran to determine the current condition of his lower legs, including consideration of whether scars, if present, are related to leg wounds alleged to have been incurred in service in a land mine explosion. The Court noted that, since the claim was well grounded based on the medical evidence, consideration of the evidentiary standards of 38 U.S.C.A. § 1154(b) would be required when the claim was readjudicated after further development. The Court also directed, as to the claim for a compensable evaluation for a fracture of the right third metatarsal, that further development, including medical examination and opinion as to whether the veteran had functional impairment due to pain of the right third toe, was required. Accordingly, the claim is REMANDED to the RO for the following actions: 1. The veteran should be afforded the opportunity to identify any VA or private medical records (not already of record) relevant to scars of the lower extremities or residuals of a fracture of the right third metatarsal. The RO should attempt to obtain any identified records and associate them with the claims file. 2. The veteran should also be offered the opportunity to submit any alternative forms of proof of continuity of symptoms of residuals of wounds of the lower extremities. 3. The veteran should be afforded a VA examination to determine the current nature and severity of residuals of wounds of the lower extremities due to a land mine explosion, if such residuals are present, to include scarring or vascular changes. All indicated special examination, studies and tests should be accomplished. The examiner should provide a detailed description as to any scar or other residuals which the veteran alleges are due to a land mine explosion to the lower extremities, including the location, size, and appearance of such residuals. The claims file must be made available to the examiner in connection with the examination. The examiner should also be requested to provide (1) an opinion as to the probable onset or duration of any physical finding of the lower legs alleged by the veteran to have had its onset from a land mine explosion in service, including vascular changes and purpura, and whether any such abnormality is consistent with the alleged explosion. The examiner should then be asked to provide (2) an opinion as whether it is at least as likely as not that the veteran has residuals, including any identified scarring (particularly "punctate" scars) of the left lower, right lower, or both lower extremities, attributable to wounds incurred in a land mine explosion in service. 4. The veteran should be afforded a VA examination of the right foot as necessary to ascertain the nature, severity and etiology of any current disability residual to a fracture of the right third toe. The claims file must be made available to the examiner for review in connection with the examination, and all indicated special studies and tests should be accomplished. The examiner should report all subjective complaints and clinical findings regarding the right third toe. Further, the examiner should specify whether there is evidence of additional functional loss due to pain and/or fatigue, including whether there are flare-ups and the frequency of any such flare-ups. 5. If any benefit sought remains denied, the RO should ensure that the veteran and his representative are furnished an appropriate supplemental statement of the case as to each issue in appellate status and afforded an opportunity to respond. 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 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). CHARLES E. HOGEBOOM 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).