BVA9502835 DOCKET NO. 91-10 596 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Manila, Philippines THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of service connection for defective vision secondary to residuals of a shell fragment wound of the left superciliary region. 2. Entitlement to service connection for degenerative arthritis of the sacroiliac joints and both knees as secondary to residuals of shell fragment wounds of the lower extremities. 3. Entitlement to a compensable evaluation for the residuals of a shell fragment wound to the left superciliary region. 4. Entitlement to a compensable evaluation for the residuals of a shell fragment wound to the right thigh. 5. Entitlement to a compensable evaluation for the residuals of a shell fragment wound to the left thigh. 6. Entitlement to a compensable evaluation for the residuals of a shell fragment wound to the left leg. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Horrigan, Counsel INTRODUCTION The veteran served on active duty from January 24 to March 11, 1945. This matter came before the Board of Veterans' Appeals (Board) from an August 1990 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, Philippines. The case was remanded by the Board in July 1991, February 1992, and November 1993. It is before the Board for appellate consideration at this time. REMAND The veteran underwent a VA orthopedic evaluation of his service connected residuals of a shell fragment wound to the left superciliary region in January 1994. However, the examination failed to provide any description of the veteran's scar in the left superciliary region, especially in regard to any cosmetic effects of this scar. Also, the examination was to include a photograph of the veteran's scar in the left superciliary region, but the photograph associated with the examination report was too dark and taken from too great a distance to be of value in evaluating this scar. The Board further notes that the veteran had been scheduled for similar examinations in August and October 1991 but failed to report. However, in letters dated in August and October 1991, the veteran indicated, essentially, that mail deliveries to his home were very tardy and that the notices to report for the scheduled examinations were not received until after the dates when they were to be conducted. He requested that the notice to report for an evaluation be issued at least 25 days prior to the date of the evaluation. Also, a Board decision of March 1984 denied secondary service connection for defective vision. The Board remand of November 1993 instructed the RO to adjudicate the issue of service connection for defective vision as secondary to service-connected residuals of a shell fragment wound of the left superciliary region. In rating actions of September 1994, the RO denied entitlement to secondary service connection for optic atrophy and myopic astigmatism but the Supplemental Statement of the Case issued on September 29, 1994 did not provide the veteran with the applicable laws and regulations governing finality of the 1984 Board decision and the need to submit new and material evidence inorder to reopen his claim. In view of the above, and given the duty to assist the veteran in the development of his claim under the provisions of 38 U.S.C.A. § 5107(a) (West 1991), this case is remanded to the RO for the following development; 1. The veteran should be afforded an examination by an orthopedist, board certified if available, to determine the severity of his residuals of a shell fragment wound to the left superciliary region. Any indicated special studies of the left superciliary region, should be performed and all pertinent findings, including an exact description of the veteran's scar in the left superciliary region, and any resulting disfigurement, reported in detail. An unretouched color photograph clearly showing the veteran's scar in the left superciliary region should be taken and associated with the examination report. The claims folder must be made available to the examining physician, prior to the evaluation, so that all pertinent clinical records may be studied in detail. The notice to report for the examination must be mailed at least 25 days prior to the examination to insure its timely delivery. 2. Thereafter, the RO should again adjudicate the issue of entitlement to a compensable evaluation for the residuals of a shell fragment wound to the left superciliary region. If this benefit is denied, the veteran and his representative should be provided a Supplemental Statement of the Case and afforded a reasonable opportunity to respond. He should also be provided a Statement of the Case containing the law and regulations governing finality of the 1984 Board decision denying entitlement to secondary service connection for defective vision and the need to provide new and material evidence to in regard to this issue. He should be provided a reasonable opportunity to respond. Thereafter, the claim should be returned to this Board for further appellate consideration, if otherwise appropriate. No action is required of the veteran until he is so informed by the RO. The purpose of this remand is to obtain additional clinical evidence and to afford the veteran due process of law. By this remand, the Board intimates no opinion as to the appropriate outcome in this case. The other issues certified for appeal will be held in abeyance pending completion of the above development. F. JUDGE FLOWERS 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).