BVA9501142 DOCKET NO. 91-49 917 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a chronic back disability. Entitlement to service connection for a chronic heart disability. Entitlement to service connection for essential (chronic) hypertension. Entitlement to service connection for a chronic left knee disability. Entitlement to an increased rating for residuals of a landmine wound of the right lower extremity with a right below the knee (BK) amputation, currently rated as 40 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R. K. ErkenBrack, Counsel REMAND The veteran had active duty from February 1944 to November 1945. The Board of Veterans' Appeals (Board) remanded the case in October 1992 for the veteran's clarification of the issues regarding hypertension, his left knee and an increased rating for residuals of the right BK amputation; additional VA clinical records; complete VA orthopedic and cardiovascular examinations, to include medical opinions as to the claimed etiological relationships in this case; appropriate adjudication of the back disability issue with respect to finality of a February 1972 rating decision and new and material evidence since that time; and all appropriate development of the issues properly adjudicated by RO and appealed by the veteran. As regards the first issue noted on the title page of this decision the RO failed to address the questions of finality and new and material evidence following a February 1972 rating action. That rating action denied service connection for a back disorder on the basis that it was not present in service, that (apparently) arthritis of the spine was not present in the first post service year, and that a back disorder was not caused by the service-connected residuals of landmine wound of the right lower extremity with right below the knee amputation. Additionally, there are somewhat unclear medical statements of record, including statements written by people who may be VA physicians on VA form 1-9 in September 1991 and VA form 21-4138 in 1992, 1993 and 1994. The 1991 statement suggests that pain in the low back and left knee and arthritic changes in these areas was caused by the right below the knee amputation. The March 1994 statement suggests that there may be a permanent incapacity to tolerate a right below the knee prosthesis, which if true would entitle the veteran to a 60 percent rating for residuals of a landmine wound of the right lower extremity. The October 1993 VA orthopedic examination included a review of the claims folder by the examiner. He indicated that the right foot problem probably caused back problems even before the BK amputation in 1966. However, the final diagnosis did not indicate such causation, but only that the BK amputation most likely aggravated status post lumbar sprain. This is contradictory and inadequate to decide an actual secondary relationship. A chronic left knee disability has not been confirmed or ruled-out on the basis of this examination. It was noted that X-rays were ordered of the left knee and lumbar spine and a chest X-ray was ordered and the veteran was sent to X-ray. "This was done on the computer direct to X-ray and he failed to have the X-rays done." Inasmuch as the veteran did report for complete orthopedic and cardiovascular examinations, we have a question as to whether the failure to have X-rays taken was due to his refusal to report for X-rays. On the VA heart examination in November 1993, the previously diagnosed hypertension and coronary artery disease were not confirmed to be present. Even though the Board's remand asked for cardiovascular opinions on causality, no opinion was given. To ensure that VA has met its duty to assist the appellant in developing the facts pertinent to the claim, the case is again REMANDED to the RO for the following development: 1. The veteran should be afforded additional VA orthopedic and cardiovascular evaluations to ascertain whether or not he has a chronic left knee disability, coronary artery disease and/or essential hypertension, as well as the nature and extent of all current back pathology. The orthopedic examination should include X- rays of the left knee and low back unless the veteran specifically declines to have the X-rays performed. The examining orthopedist should specifically comment on whether the residuals of landmine wound of the right lower extremity caused any low back pathology or left knee pathology found to be present. He should also state whether there is a chronic incapacity to tolerate a right below the knee prosthesis. The condition of the stump should be fully described. The cardiologist should state whether any coronary artery disease or essential hypertension found to be present was caused by the residuals of landmine wound of the right lower extremity with right below the knee amputation. The claims folder must be made available to the examiners for review before the examinations. 2. The RO must decide whether or not the February 1972 decision regarding service connection for the veteran's back disability became final and, if it did, whether new and material evidence has been received to reopen the claim. Appropriate notice of the decision and applicable appellate rights must then be provided the veteran. 3. After the development requested above has been completed to the extent possible, the RO should again review the record. As regards the back and the left knee, the provisions of 38 C.F.R. § 4.58 (1993) should be reviewed in detail. If any benefit sought on appeal, for which a notice of disagreement has been filed, remains denied, the appellant and representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. (CONTINUED ON NEXT PAGE) Thereafter, the case should be returned to the Board, if in order. The appellant need take no action unless otherwise notified. BRUCE E. HYMAN 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).