BVA9505957 DOCKET NO. 93-09 635 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to an increased rating for residuals of shell fragment wounds, Muscle Group XI, left, with sensory nerve involvement, currently rated as 30 percent disabling. 2. Entitlement to service connection for degenerative arthritis of the left knee. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD Michael P. Vander Meer, Associate Counsel INTRODUCTION The veteran served on active duty from June 1943 to June 1947. This case is before the Board of Veterans' Appeals (Board) on appeal from a December 1990 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. A hearing was held at the RO in February 1992, and the hearing officer's decision was entered the following month. Another hearing was held before the below signing member of the Board at the RO in March 1993. The appeal was received and docketed at the Board in May 1993. REMAND With respect to the veteran's claim for service connection for degenerative arthritis of the left knee, he contends that he developed arthritis in that knee approximately 20 years ago, which he attributes, primarily, to periods of immobilization of the knee joint in conjunction with multiple recasting of his left leg for an approximately two-year period subsequent to sustaining service-incurred shell fragment wounds of the left lower extremity in 1945, as well as additional stress put on such extremity when intermittently favoring his right leg, for which service-connected disability involving Muscle Group XI is also in effect, during the years since service. In this regard, the record contains a January 1991 statement from Nicholas J. Silvino, M.D., who performed a total left knee arthroplasty on the veteran due to severe degenerative joint disease of the left knee in November 1990. The doctor indicates that service- incurred shell fragment wounds involving both of his lower extremities may have "hastened" the development of arthritis in his left knee. On assessing the veteran's contentions in conjunction with the foregoing opinion by Dr. Silvino, and since the veteran has not yet been afforded pertinent VA examination in conjunction with his claim for service connection for arthritis of the left knee, the Board is of the opinion that such examination should be performed before an appellate determination bearing on this aspect of the appeal is rendered. In addition, inasmuch as the veteran's service-connected residuals of shell fragment wounds of the left lower extremity, Muscle Group XI, with sensory nerve involvement, have not been examined by VA subsequent to his November 1990 total left knee replacement, the Board is similarly of the opinion that such examination should be performed before the certified increased rating issue is adjudicated. The Board also notes that, by means of correspondence dated in March 1991, the veteran asserted entitlement, based upon the left knee surgery in November 1990, to a temporary total convalescence rating in accordance with 38 C.F.R. § 4.30 (1994). Inasmuch as such claim has not yet been adjudicated in a formal rating decision, although it was covered in the June 1991 Statement of the Case, further development in this regard is specified below. Accordingly, the case is REMANDED for the following: 1. The RO should contact the veteran and request him to identify the names, addresses and approximate dates of treatment for any health care provider(s), other than Nicholas J. Silvino, M.D., and the VA Medical Center in West Los Angeles, California, who may possess records pertinent to his claims in addition to those which have previously been submitted. Thereafter, in light of the response received and after obtaining any necessary authorization, the RO should take appropriate action to obtain copies of any clinical records indicated. In any event, after obtaining any necessary authorization, the RO should obtain copies of any clinical records that may have been prepared in conjunction with treatment rendered the veteran since January 1991 by Nicholas J. Silvino, M.D., South Bay Orthopedics and Sports Medicine Center, 3445 Pacific Coast Highway, Suite 100, Torrance, California 90505; and copies of all clinical records reflecting treatment rendered the veteran since July 1990 at the VA Medical Center in West Los Angeles, California. 2. Thereafter, the RO should arrange for the veteran to undergo a VA orthopedic examination to determine the current severity of his service-connected residuals of shell fragment wounds, Muscle Group XI, left; any findings pertaining to residual muscle impairment should be noted, and a full description of all scars is specifically requested. In addition, after reviewing the record to include all service medical evidence as well as the January 1991 statement submitted by Dr. Silvino, the examiner is specifically requested to offer an opinion as to whether it is at least as likely as not that degenerative arthritis of the veteran's left knee was caused by impairment associable with service-connected disability involving either or both lower extremities. All tests deemed necessary should be performed. It is imperative that a copy of this REMAND be provided to the examiner, and the claims folder must be made available to the examiner for review prior to the examination. The rationale for all opinions expressed should be fully explained. 3. Then, after undertaking any development deemed necessary in addition to that specified above, the RO should readjudicate the issues on appeal; and fully adjudicate the issue of entitlement to a temporary total convalescence rating in accordance with 38 C.F.R. § 4.30. 4. If either benefit sought on appeal is not granted to the veteran's satisfaction, or if a timely notice of disagreement is received with respect to the disposition of the temporary total convalescence issue, the veteran and his representative should be provided a Supplemental Statement of the Case on all issues in appellate status, and given an opportunity to respond. The veteran should be provided appropriate notice of the requirements to perfect an appeal with respect to any issue addressed therein which does not appear on the title page of this decision. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. In taking this action, the Board implies no conclusions, either legal or factual, as to any ultimate outcome warranted. No action is required of the veteran until he is otherwise notified. J. J. SCHULE 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).