BVA9508251 DOCKET NO. 93-08 752 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES Entitlement to service connection for arthritis of the left knee, ankles and hands. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for carpal tunnel syndrome. Entitlement to an increased evaluation for arthritis of the lumbar spine, currently rated 10 percent disabling. Entitlement to increased (compensable) evaluations for bilateral hearing loss and the residuals of a herniorrhaphy. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Hilary L. Goodman, Counsel REMAND The veteran apparently had active service from April 1948 to April 1952 and from May 1952 to May 1968. This appeal arises from an August 1991 decision which denied service connection for arthritis of the left knee, ankles and hands, denied the veteran's request to re-open his claim for service connection for carpal tunnel syndrome, and continued the 10 percent disability evaluation for arthritis of the lumbar spine as well as the non-compensable disability evaluations for bilateral hearing loss and the residuals of a herniorrhaphy. The veteran, who sustained several low back injuries and had a suspected bucket handle tear of the right medial meniscus in service, was granted service connection for arthritis of the lumbar spine and right knee by rating action of November 1988. The discussion portion of the rating notes that he had injured his back and re-injured his right knee while in service. The veteran was rated under Diagnostic Codes 5010-5257 for "degenerative arthritis, right knee" and under Diagnostic Codes 5010-5295 for "degenerative arthritis, lumbar spine." In December 1988 he was informed that service connection had been granted for traumatic arthritis of two unspecified joints. His current claim for service connection for arthritis of additional joints has been denied on the basis that there is no relationship between the service-connected arthritis due to injuries and his currently diagnosed arthritis. There is no medical opinion of record in support of this conclusion. The veteran has testified that he has been told that the arthritis of the hands, ankles and left knee is related to his service-connected arthritis of the right knee and lumbar spine. A Department of Veterans Affairs (VA) physician, following a June 1991 examination, indicated that it was not possible for him to venture an opinion as to the relationship between the veteran's arthritis of the right knee and lumbar spine and the veteran's arthritis of other joints. It is not apparent that the physician had access to the veteran's claims file. The examiner diagnosed rheumatoid arthritis of multiple joints (knees, wrists, hands and fingers) as well as degenerative joint disease of multiple joints (cervical spine, lumbar spine, pelvis and fingers). The veteran indicated at the hearing that the physician was a specialist in allergic diseases. At the hearing, the veteran testified that he was experiencing significant limitation of motion of the low back with almost continuous pain. He related that his hearing had worsened and that he had been given new hearing aids. He reported that he was experiencing a burning sensation and a great deal of discomfort at the location of the herniorrhaphy. It is herein noted that the last VA examination of the veteran's low back, conducted in June 1991, did not include range of motion studies. The veteran has reported that he has received medical treatment at two VA Medical Centers and from a private physician in Murfreesboro. Service connection for bilateral carpal tunnel syndrome was initially denied by rating action in April 1990. The current record shows that the veteran was notified of this decision in May 1990 and a notice of disagreement was not received within one year. Accordingly, the veteran was required to submit new and material evidence to reopen his claim of entitlement to service connection for carpal tunnel syndrome. In the August 1991 rating decision it was specifically noted that the claim for bilateral carpal tunnel syndrome had been previously disallowed and that no evidence had been submitted to warrant a change in that decision. While a notice of disagreement with this determination was received from the veteran in October 1991, the supplemental statement of the case which covered this issue did not contain the law and regulations pertaining to the new and material evidence requirements for re-opening a claim, or otherwise indicate that the claim had not been re-opened. It implies that the issue had been considered on a de novo basis. After reviewing the entire record, the Board of Veterans' Appeals (Board) finds that further development of the evidence is required. Therefore, the veteran's claims are REMANDED for the following action: 1. The originating agency, after obtaining appropriate authorization, should obtain legible copies of the veteran's medical records from his private physician in Murfreesboro. All documents obtained should be associated with the veteran's claims file. 2. The originating agency should obtain legible copies of the veteran's outpatient treatment records dated subsequent to December 1992 and his inpatient treatment records dated subsequent to August 1992 from the VA Medical Center, Nashville, as well as legible copies of his outpatient treatment records dated subsequent to April 1992 and his inpatient treatment records dated subsequent to May 1991 from the VA Medical Center, Murfreesboro. All documents obtained should be associated with the veteran's claims file. 3. Thereafter, the originating agency should refer the veteran for an orthopedic examination by an appropriate specialist. The examiner is requested to review the veteran's claims file, including the service medical records, all VA reports of examinations and all VA and private treatment records. The veteran should then be examined. All necessary tests and studies should be conducted. Based on that examination and a review of the record, the examiner should proffer an opinion, with supporting analysis, as to whether the veteran has arthritis of the left knee, ankles or hands which is etiologically related to his service-connected arthritis of the right knee and lumbar spine. The examiner should also examine the veteran's lumbar spine in order to determine the current severity of the arthritis. All indicated testing, including range of motion studies, should be accomplished and all clinical manifestations should be reported in detail. 4. The originating agency should also schedule the veteran for an audiologic evaluation in order to ascertain the status of his bilateral hearing loss. He should also be scheduled for a surgical examination to identify and evaluate the current severity of any residuals of his herniorrhaphy. All clinical manifestations should be reported in detail. The examiners should be given access to the veteran's claims file for a sufficient period of time prior to examining him to allow for a complete review of the record. 5. After completion of the above, the originating agency should review the veteran's case by considering all the evidence of record. If any determination made is unfavorable to the veteran, a supplemental statement of the case that includes the law and regulations pertaining to the new and material evidence requirements for re-opening a claim and sets forth the evidence received since the February 1993 supplemental statement of the case should be provided to the veteran and his representative. After allowing the veteran and his representative the appropriate period of time in which to respond to the supplemental statement of the case, the veteran's case should be returned to the Board for further appellate consideration, if otherwise in order. The purpose of this REMAND is to secure clarifying information and ensure due process. No action is required on the part of the veteran until he receives further notice. ROBERT D. PHILIPP 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).