BVA9504489 DOCKET NO. 93-06 804 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma THE ISSUES 1. Whether an April 1989 rating decision that assigned a noncompensable rating for residuals of a right femur fracture was clearly and unmistakably erroneous. 2. Entitlement to an increased (compensable) rating for residuals of a right femur fracture. 3. Entitlement to service connection for a right kidney disorder secondary to the service-connected right hip disability. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD M. F. Halsey, Counsel INTRODUCTION The veteran served on active duty from August 1945 to August 1946. This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating actions taken in April, May, and June 1992. A notice of disagreement and substantive appeal were timely filed as to the denial of an increased rating and the denial of the veteran's claim of clear and unmistakable error in an April 1989 rating action. The claim of secondary service connection for a kidney disorder was denied by the June 1992 rating decision. A substantive appeal on VA Form 1-9 addressing both the hip and kidney issues was received later in June 1992. A notice of disagreement was received in August 1992, and the kidney issue was addressed in a December 1992 supplemental statement of the case. Thereafter, a VA Form 1-646, dated in September 1992, was filed in sequence after the supplemental statement of the case. And in March 1993, the veteran submitted a number of documents, one of which was a copy of a previously-submitted medical opinion linking a kidney disorder with his service-connected hip fracture. Given the fact that it is apparent the veteran intends to appeal the denial of secondary service connection for a kidney disorder, and the language in the cover letter to the December 1992 supplemental statement of the case (to the effect that the veteran need not respond to any new issue if previously addressed in a substantive appeal), I find that the kidney issue has been timely appealed. REMAND The veteran contends that, even though he is quadriplegic due to a cervical spine injury unrelated to military service, a compensable rating should nevertheless be assigned for the residuals of an injury sustained to his right femur while under VA care. Specifically, he asserts that he fractured his right femur in January 1984 while being transported home following treatment at a VA facility. The treatment was for effects of the non-service-connected cervical spine injury. In accordance with the provisions of 38 U.S.C.A. § 1151 (West 1991), when an injury is suffered as a result of treatment or hospitalization by VA, which injury is not the result of the veteran's own willful misconduct, "and such injury ... results in additional disability[,]" compensation is awarded as though the disability was service-connected. By an April 1989 rating decision, the RO determined that the January 1984 femur fracture amounted to a qualifying disability under 38 U.S.C.A. § 1151 (West 1991). However, a noncompensable rating was assigned. Effectively, the RO found that the veteran did not experience compensably disabling residuals beyond that already caused by his quadriplegia. A January 1984 x-ray report indicates that a radiolucency was noted in the trochanteric area that may have represented a fracture. There was generalized demineralization of the bones. A February 1984 report shows that the veteran had a shortened right lower extremity and a flail right hip joint. However, it is not clear whether the flail hip was due to the fracture. His hip was described in a November 1985 report as being "neuropathic," suggesting that the flail joint was due to changes associated with his spinal cord injury. Additionally, records dated in April and July 1990 indicate that findings of osteopenia were made when x-ray films of the left lower extremity were prepared, suggesting that the demineralization of bone noted in January 1984 was related to a process other than that caused by the fracture. Yet the veteran has complained of spasms, pain, and severe listing to the right side, none of which has been definitively attributed to either the fracture or the quadriplegia. If due to the fracture, as suggested in a January 1991 report, the functional loss beyond that caused by the nonservice-connected spinal cord injury and quadriplegia needs to be clearly identified. Reports prepared in March and April 1992 make it clear that the veteran sustained a fracture of the right femur. X-ray films of 1984 reviewed at the Bethany Hospital in April 1992 were described as showing a comminuted and angulated intertrochanteric fracture. The veteran has contended that the fracture resulted in nonunion of the bone, warranting the assignment of an 80 percent evaluation under 38 C.F.R. § 4.71a, Diagnostic Code 5255 (1994). The April 1992 report does not identify the fracture residual as resulting in nonunion of bone. Nevertheless, as already noted above, whether he experiences a flail hip as a result of nonunion of bone or because of the deterioration of the musculoskeletal structure due to quadriplegia is not clear on the record. This point must be clarified in order to avoid evaluating the veteran's injury residuals on the basis of manifestations of disability unrelated to the January 1984 fracture. See 38 C.F.R. § 4.14 (1994). The record contains conflicting evidence with respect to the right kidney issue. A January 1991 statement from Joseph F. Kelley, M.D., indicates that the veteran has possible hydronephrosis which "could well be due to" reflex pain and anatomical distortion related to the right hip fracture. A VA examination in May 1992 resulted in an opinion that there was no etiological relationship between the veteran's genitourinary problems and his right hip fracture. However, that opinion focused on neurogenic bladder with ileal loop and chronic stents, and Pseudomonas bacteriuria, and did not mention hydronephrosis at all. In view of this unresolved conflict, further development is warranted. In order to make clear the nature of the disability due to the femur fracture and to award compensation as appropriate for limitations beyond those imposed by the spinal cord injury, see 38 C.F.R. §§ 4.1, 4.14 (1994), further development is required. The case is REMANDED for the following actions: 1. Action should be taken as suggested by a VA examiner in a February 1992 report to arrange an orthopedic examination at a location suited to conducting a full examination of the functional loss experienced by the veteran due to the right femur fracture. The examiner(s) should be given the claims folder to review before the examination. To the extent possible, each disabling manifestation of the femur fracture should be identified and distinguished from disability due to quadriplegia. For instance, whether a flail joint is due to the fracture or not, whether bone demineralization is caused by the fracture or not, whether the fracture resulted in nonunion or malunion, and whether spasm, pain, or listing are due to the fracture should be determined. In short, each disabling manifestation due to the fracture and functional loss caused beyond that already due to quadriplegia should be identified. If no functional loss is found above that already caused by the quadriplegia, the examiner(s) should so state. All indicated studies should be conducted. All findings, opinions, and bases therefor should be set forth in detail. 2. The veteran should be afforded a VA nephrologic or urologic examination to determine if he has hydronephrosis on the right, and if so, its cause. The examiner should refer to the January 1991 statement of Dr. Kelley and the May 1992 VA examination prior to making these determinations. 3. The RO should take adjudicatory action on the veteran's claims. If any further action to secure additional evidence is suggested by the record, the additional development should be undertaken. If any benefit sought by the veteran is not granted, a supplemental statement of the case should be issued. After the veteran and his representative have been given an opportunity to respond to the supplemental statement of the case, the claims folder should be returned to this Board for further appellate review. No action is required of the veteran until he receives further notice. The purposes of this remand are to procure clarifying data and to comply with governing adjudicative procedures. The Board intimates no opinion, either legal or factual, as to the ultimate disposition of this appeal. (Consideration of the claim of clear and unmistakable evidence in an April 1989 rating decision is deferred pending completion of the development sought in this remand.) J. E. DAY 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) (1994).