BVA9505151 DOCKET NO. 91-24 092 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for residuals of a right arm injury. 2. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for bladder incontinence. 3. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for bowel incontinence. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. S. Freret, Counsel INTRODUCTION The appellant had active military service from December 1967 to January 1969. In a May 1989 appellate decision, the Board of Veterans' Appeals (Board) denied service connection for residuals of a right arm injury, for bladder incontinence, and for bowel incontinence. This appeal comes before the Board from a September 1989 rating decision by the Department of Veterans Affairs (VA) New Orleans, Louisiana, Regional Office (RO), which denied entitlement to service connection for residuals of a right arm injury, for bladder incontinence, and for bowel incontinence. In January 1992, the Board remanded the case for further development and for due process reasons. The appellant's claim originally included the issue of entitlement to service connection for residuals of a left leg injury, to include consideration of the provisions of 38 C.F.R. § 3.383. In a July 1994 rating decision, the RO incorporated the appellant's nonservice-connected left leg disability (classified as loss of use of the left foot) with his service-connected residuals of a shell fragment wound of the right leg with paralysis of the right sciatic nerve resulting in loss of use of the right foot, under the provisions of 38 C.F.R. § 3.383 (1994) referring to loss of use of paired extremities, and assigned a 100 percent evaluation under 38 C.F.R. § 4.71a, Diagnostic Code 5110 (1994) for loss of use of both feet. Although the appellant's representative continues to argue for entitlement to service connection for residuals of a left leg injury as an extremity paired with the service-connected right leg injury and loss of use of right foot, the Board finds that the benefit essentially has been granted. We note that a 100 percent evaluation has been assigned for the bilateral lower extremity disabilities and that special monthly compensation has been awarded for such loss of use. REMAND The appellant argues that he has residuals of a right arm injury, bladder incontinence, and bowel incontinence, all of which are related to injuries sustained while he was on active military duty. The Board notes that the appellant underwent a VA neurological examination in March 1992 in response to the Board's January 1992 remand, and that one of the purposes of the examination was to have the neurologist express an opinion as to the etiology of any bladder or bowel incontinence found. The RO subsequently determined that the March 1992 neurological examination was inadequate for rating purposes, partially because the examiner did not address the issue of whether the appellant had a bowel disorder, and, if so, what the etiology was. The examining physician submitted an addendum in September 1992 to his March 1992 examination report in which he indicated that the appellant had fecal incontinence, but did not address the etiology of it. Review of the claims file reveals that the RO has not evaluated the appellant's attempt to reopen the claims for entitlement to service connection for residuals of a right arm injury, bladder incontinence, and bowel incontinence according to the two-step analysis set forth in Manio v. Derwinski, 1 Vet.App. 140 (1991), a decision by the United States Court of Veterans Appeals (Court), which established procedures necessary in reopening claims, including particular application of the requirements under 38 U.S.C.A. § 5108 (West 1991), in order to ensure that the appellant receives his procedural due process rights. The Board notes that the January 1992 remand indicated to the RO that if the appellant's claims remained denied he should be given a supplemental statement of the case that included the laws and regulations on the requirements for reopening a previously denied and final claim, in light of the Board's May 1989 appellate decision that denied service connection for residuals of a right arm injury, bladder incontinence, and bladder incontinence. The supplemental statement of the case issued to the appellant in July 1994 included neither a discussion of the finality of the May 1989 appellate decision and its relationship to the appellant's current claims, nor the pertinent laws and regulations. Review of the claims file reveals that the appellant has continued to pursue a claim of entitlement to an increased evaluation for his service-connected depressive reaction, which the Board's January 1992 remand pointed out, and which the RO adjudicated in its July 1994 rating decision. However, the appellant has not yet been issued a statement of the case as to this issue. VA has a duty to assist the appellant in the development of facts pertinent to his claims. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.103(a) (1994). The Court has held that the VA's duty to assist the appellant in obtaining and developing available facts and evidence to support his claim includes obtaining adequate VA medical examinations. Littke v. Derwinski, 1 Vet.App. 90 (1990). Because the Board still needs to have a medical opinion as to the etiology of the appellant's bowel disorder, because the RO must address the issue of whether new and material evidence has been submitted to reopen the claims of entitlement to service connection for residuals of a right arm injury, bladder incontinence, and bowel incontinence, and because the appellant requires provision of a statement of the case as to the issue of entitlement to service connection for his depressive reaction, the Board believes it appropriate to REMAND the case to the RO for the following actions: 1. The appellant should be scheduled for a VA neurological examination for the purpose of ascertaining whether his bladder incontinence and bowel incontinence are etiologically related to any of his service-connected injuries, particularly the residuals of a shell fragment wound to the right leg with paralysis of the right sciatic nerve. It should be pointed out to the examiner that the appellant's service-connected disabilities do not included injury to the cervical spine, which the appellant alleges occurred from his being in a helicopter crash in service. All indicated special studies should be performed, if not medically contraindicated. The entire claims file and a copy of this REMAND must be made available to the examiner prior to the examination. 2. Following completion of the foregoing, the RO must review the claims file and ensure that all of the requested development has been conducted and completed in full. If any development is incomplete, including the absence of any test reports, special studies, or opinions requested as part of the examination, appropriate corrective action is to be implemented. 3. The RO should consider the appellant's claims of entitlement to service connection for residuals of a right arm injury, bladder incontinence, and bladder incontinence with regard to the two-step analysis established in Manio. 4. In applying the two-step analysis, the RO should first determine whether there is new and material evidence to warrant reopening any of the claims. If there is, the claims should be reopened, and the RO should determine whether, in light of all the evidence, both old and new, there is a basis for allowing the claims. 5. If the determination regarding either question is adverse to the appellant, he should be provided a supplemental statement of the case that fully addresses the two-step analysis and explains the reasons for the adverse determination. If it is determined that new and material evidence sufficient to reopen any of the claims has not been presented, the provisions governing such a determination, including 38 U.S.C.A. § 5108 (West 1991) and 38 C.F.R. § 3.156(a) (1994) should be explained. If it is determined that one or more of the claims may be reopened, but that, upon consideration on the merits, there is no basis for an allowance, the supplemental statement of the case should include a summary of all pertinent evidence of record, along with the legal criteria governing the reopened claim. 6. The RO should furnish the appellant and his representative with a supplemental statement of the case that includes a discussion and decision as to his claim for an increased evaluation for his service-connected depressive reaction. After the above requested actions have been completed, and a supplemental statement of the case has been furnished to the appellant and his representative, they should be afforded a reasonable period of time to respond. Thereafter, the case should be returned to the Board for further appellate consideration. The purpose of this REMAND is to obtain addition medical evidence and to ensure that the appellant is afforded due process of law. No opinion, either legal or factual, is intimated as to the merits of the appellant's claims by this REMAND. He is not required to undertake any additional action until he receives further notification from the VA. BETTINA S. CALLAWAY 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 so assigned. 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).