BVA9506084 DOCKET NO. 93-10 459 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to an increased rating for residuals of a right ankle injury, currently rated as 30 percent disabling. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD John Z. Jones, Associate Counsel REMAND The veteran-appellant had active service from August 1967 to July 1970. During a hearing on appeal in May 1992, the veteran's representative twice referred to the veteran's service-connected "right knee" and right ankle. In a November 1992 statement, the veteran referred to a right knee injury and arthritis of both knees. In a November 1993 statement, his representative said that the original grant of service connection included degenerative arthritis of the right knee. On review of the record, the Board finds that in a September 1970 rating, the Columbia, South Carolina, Department of Veterans Affairs (VA) Regional Office (RO) granted service connection for residuals of a right ankle fracture with degenerative arthritis. There was no mention of the right knee. In October 1979, the veteran filed a claim of service connection for residuals of an injury to his knees. In an October 1979 rating decision, the RO denied service connection for chondromalacia of both knees. However, the description of the service-connected right ankle disability included degenerative arthritis of the right "knee". In the notice to the veteran, he was told that service connection for the knee condition was not warranted. In the December 1991 rating decision, the subject matter of this appeal, there is reference to degenerative arthritis of the right "knee" and ankle. In the Board's view, there is conflicting evidence as to whether the veteran is service-connected for degenerative arthritis of the right knee. Moreover, the veteran was last examined by the VA in August 1971, when X-rays revealed un-united fracture fragments of the right ankle (under Diagnostic Code 5262, a 40 percent rating may be granted for nonunion of the tibia and fibula). On the basis of the above and pursuant to 38 C.F.R. § 19.9 (1994), the Board determines that further development of the evidence is essential for a proper appellate decision and, therefore, remands the matter to the RO for the following action: 1. The RO should clarify whether the veteran is service-connected for degenerative arthritis of the right knee. If he is not, the RO is to undertake the appropriate actions under 38 C.F.R. § 3.105 (1994) to correct the rating in effect. Thereafter, if it has been determined that he is not service-connected for the right knee, the veteran should be requested to clarify his intentions regarding service connection for a right knee disability or disability of both knees. If he chooses to pursue the claim of service connection for a knee condition, then inform him as to whether he needs new and material evidence to reopen the claim ostensibly denied in October 1979 or whether this is a separate claim to which finality does not apply. 2. The RO should inform the veteran that there has been no response to the request for records from the Greenville Memorial Hospital. He should be encouraged to contact the facility regarding those records. 3. The RO should schedule the veteran for an orthopedic examination to determine the extent and nature of his service-connected right ankle disability. All indicated tests, studies and X-rays should be performed, to determine among other things whether there is limited range of motion, whether there is malunion or nonunion of the tibia and fibula and whether there is residual looseness of the ankle. 4. If the claim for service connection for a knee condition is pursued the examiner should determine the extent and nature of any bilateral knee condition and should comment, insofar as is medically possible, on any relationship between any bilateral knee pathology and the veteran's service- connected right ankle disability. The veteran's claims folder must be furnished to the examiner for review of the medical history prior to the examination. 5. The RO should readjudicate the issue of an increased rating for the veteran's service-connected disability, and if necessary, the issue of service connection for a knee condition, unilateral or bilateral. If any benefit sought is denied, then the veteran and his representative should be provided a supplemental statement of the case and the opportunity to respond. Thereafter, the case should be returned to the Board. RENÉE M. PELLETIER Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. (CONTINUED ON NEXT PAGE) Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. 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) (1994).