Citation Nr: 18160365
Decision Date: 12/27/18	Archive Date: 12/26/18

DOCKET NO. 12-02 778
DATE:	December 27, 2018
REMANDED
Entitlement to an evaluation in excess of 10 percent for right arm shell fragment wound is remanded.
Entitlement to an evaluation in excess of 20 percent for right chest shell fragment wound is remanded.
Entitlement to an evaluation in excess of 10 percent for residuals of a superficial wound, left chest is remanded.
Entitlement to an initial rating in excess of 10 percent for left shoulder shell fragment wound is remanded.
Entitlement to a compensable evaluation for residual scar from shell fragment wound, upper right abdomen is remanded.
REASONS FOR REMAND
The Veteran served on active duty from June 1964 to June 1968.  In November 2014, the Veteran provided testimony at a hearing before the undersigned Veterans Law Judge.  A transcript of the proceeding is in the record.
In June 2017, the Board denied these claims.  In response, the Veteran appealed to the United States Court of Appeals for Veterans Claims (Court).  In a July 2018 Order, the Court vacated the Board’s June 2017 decision and remanded the claims to the Board for further development and readjudication consistent with terms of a Joint Motion for Partial Remand (Joint Motion).
1. Entitlement to an evaluation in excess of 10 percent for right arm shell fragment wound is remanded.
2. Entitlement to an evaluation in excess of 20 percent for right chest shell fragment wound is remanded.
3. Entitlement to an evaluation in excess of 10 percent for residuals of a superficial wound, left chest is remanded.
4. Entitlement to an initial rating in excess of 10 percent for left shoulder shell fragment wound is remanded.
5. Entitlement to a compensable evaluation for residual scar from shell fragment wound, upper right abdomen is remanded.
In the July 2018 Joint Motion, the parties noted that the record contained multiple instances where the Veteran reported symptoms related to his shrapnel injuries, as well as his contention that his chest, left shoulder and abdominal scars are painful.  The Board must assess the credibility and probative value of the Veteran’s statements, and explain the basis of its findings and discuss how it weighed the lay evidence in light of the other evidence of record.  
The Veteran testified at length during his November 2014 Board hearing about the pain he experienced due to his respective disabilities.  In particular, he stated that he experienced painful, tender scars that flared up during cold or damp weather.  He also reported functional impairment – namely, loss of range of motion and decreased strength – in both upper extremities that he attributed to his service-connected shell fragment wounds.  However, in the last VA examination conducted in October 2015 to evaluate the severity of his respective disabilities, the examiner made no mention of the Veteran’s reports of experiencing flare-ups of pain.  As noted in the Joint Motion, the VA examiner opined that the Veteran’s non-service connected cervical myopathy caused his current impairments of muscles and loss of motion.  However, the evidence in the record demonstrates that the Veteran’s complaints of worsening in the right arm predate his cervical myelopathy diagnosis and subsequent March 2014 cervical surgery.  
The October 2015 VA examination does not comply with the requirements in Sharp v. Shulkin, 29 Vet. App. 26 (2017), in terms of any additional functional loss suffered during flare-ups of the Veteran’s respective disabilities.  Remand is needed for a new VA examination with more thorough findings in compliance with Sharp and a thorough discussion by the examiner on what, if any, functional impairments the Veteran suffers as a result of pain from his respective disabilities.
Since the claims file is being returned it should be updated to include any outstanding VA treatment records.  See 38 C.F.R. § 3.159 (c)(2); see also Bell v. Derwinski, 2 Vet. App. 611 (1992).
The matters are REMANDED for the following action:
1. Obtain the Veteran’s VA treatment records for the period from October 2015 to the present.
2. After completion of the above, schedule the Veteran for an examination of the current severity of his service-connected shell fragment wounds of the right chest, right arm, and left shoulder, residuals of a superficial wound to the left chest, and residual scar from a shell fragment wound to the right upper abdomen.  The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups and pain.  To the extent possible, the examiner should identify any symptoms and functional impairments due to service-connected shell fragment wounds of the right chest, right arm, and left shoulder, residuals of a superficial wound to the left chest, and residual scar from a shell fragment wound to the right upper abdomen alone and discuss the effect of the Veteran’s respective disabilities on any occupational functioning and activities of daily living.  If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner does not have the knowledge or training.
 
M. E. Larkin
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Jack S. Komperda, Counsel

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