BVA9501739 DOCKET NO. 92-52 779 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to service connection for a right knee disability. 2. Entitlement to service connection for a right elbow disability. 3. Entitlement to an increased rating for bilateral hearing loss, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Milo H. Hawley, Counsel REMAND The veteran had active service from November 1942 to January 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 1991 rating decision by the Department of Veterans Affairs (VA) Regional Office in Newark, New Jersey (RO). The Board issued a decision in this appeal in October 1992. The appeal was remanded by letter in March 1993 in order to afford the veteran an opportunity for a hearing which he had previously requested. A hearing was afforded the veteran before a hearing officer at the RO in April 1993. By decision in August 1994 the Board vacated the decision it had issued in October 1992. A November 1989 rating decision continued to deny service connection for disability of the veteran's back. In December 1989 the veteran's representative filed a notice of disagreement with the denial of service connection for a back disability. A statement of the case was issued on January 8, 1990. It advised the veteran that he should set out his "substantive appeal" on the attached VA Form 1-9. Later in January 1990 the veteran submitted a statement in which he referred to the VA letter of "January 6, 1990." (sic) The veteran indicated that with regard to his "substantive appeal" more time would be required because of prior commitments. The record does not reflect what action was taken with respect to this request for an extension of time within which to file his substantive appeal. The Board observes that service connection for disability of the back, specifically osteoarthritis of the lumbar spine, was most recently denied on a de novo basis by a Board decision in June 1971. In an April 1993 letter to the hearing officer the veteran continued to indicate an interest in developing evidence with respect to his back disability. The issue of whether new and material evidence has been submitted to reopen a claim for service connection for a back disability is referred to the RO for its consideration. With respect to the issues currently on appeal it is contended that the veteran has disabilities of the right elbow and right knee which are residual to injuries he sustained when a weapons carrier struck him in the back during an air raid while he was stationed in England in 1944. During the veteran's personal hearing he testified concerning surgery of the right knee and ongoing physical therapy for his right knee from 1946 until the present. He also testified concerning surgery of the right elbow and a loss of strength and inability to fully straighten it following the injury he sustained in 1944. The veteran also offered testimony as to the time required to complete the August 1991 audiology examination. Service medical records, dated August 6, 1944, state that the veteran had moderately severe abrasions to both knees and both palms. He had a contusion on the left eyelid which was severe. He also had a mild concussion. It indicates that these injuries were sustained when the veteran was hit by a truck. A September 1945 service medical record states that the veteran complained of weakness in the left knee particularly when he played tennis. A 1946 service medical record mentions a left knee injury. The report of a January 1947 VA examination states the diagnoses as old contusion of both knees incurred July 1944 in England with minimal residuals. The report of a May 1983 VA X-ray of both knees states the impression of normal findings. During his personal hearing the veteran identified several physicians who had provided treatment for him over the years. The record includes letters from some of these physicians, but treatment records from the various named physicians have not been obtained. While it has been indicated that at least one of these physicians is deceased, an effort should be made to obtain copies of their records of treatment. The report of an August 1991 VA orthopedic examination indicates that the examiner did not have the veteran's claims file or service records available for review. Therefore, the case is REMANDED to the RO for the following: 1. The RO should contact the veteran and ask him to identify where he has received medical care for his right knee and right elbow from the time of his discharge from active service until the present. After obtaining appropriate releases the RO should contact the health care provider(s) identified and request copies of all medical records relating to treatment of the veteran's right knee and right elbow from January 1946 until the present. 2. Thereafter, the veteran should be scheduled for VA orthopedic and audiology examinations to determine the nature and extent of his right knee, right elbow, and hearing disabilities. All necessary tests and studies should be accomplished, and all clinical manifestations should be reported in detail. The appropriate examiner should comment on the etiology of any currently manifested right knee and right elbow disabilities as well as the likelihood of any relationship between those disabilities and an injury sustained during the veteran's active service. The claims file must be made available to and reviewed by the orthopedic examiner prior to the examination. After completion of the above requested development, the veteran's claims should be readjudicated by the RO. If any remain denied, the veteran and his representative should be furnished with a supplemental statement of the case and be given the appropriate opportunity to respond thereto. Thereafter, the claims file, including the above requested evidence, should be returned to this Board for further appellate review, if in order. No action is required by the veteran until he receives further notice. The purpose of this REMAND is to procure clarifying data. The Board intimates no opinion, either legal or factual, as to the ultimate disposition of this appeal. 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. 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) (1993).