BVA9500389 DOCKET NO. 93-10 250 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for a right knee disorder. 2. Entitlement to an increased disability evaluation for gunshot wound residuals of the right (major) shoulder, currently evaluated as 30 percent disabling. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD J. T. Hutcheson, Associate Counsel REMAND The veteran had active military service from April 1948 to April 1952. This matter came before the Board of Veterans' Appeals (hereinafter "the Board") on appeal from a December 1991 rating decision of the Philadelphia, Pennsylvania Regional Office (hereinafter "the RO") which denied service connection for both gunshot wound residuals of the right leg and a right knee disorder and an increased disability evaluation for the veteran's service-connected gunshot wound residuals of the right (major) shoulder. In September 1993, the Board granted service connection for shell fragment wound scar residuals of the right leg and remanded the issues of service connection for a right knee disorder and an increased disability evaluation for the veteran's right shoulder gunshot wound residuals to the RO for additional development of the record. In October 1993, the RO established service connection for shell fragment wound scar residuals of the proximal right tibia evaluated as noncompensable. The veteran has been represented throughout this appeal by the American Legion. In the October 1994 Informal Hearing Presentation, the accredited representative advances that the November 1993 Department of Veterans Affairs (hereinafter "VA") orthopedic examination was inadequate for evaluation purposes as the veteran was wearing a T.E.N.S unit which prohibited an accurate assessment of the range of motion of his right shoulder. The accredited representative requests that the instant appeal be again remanded to the RO in order to allow for a proper evaluation of the veteran's right shoulder gunshot wound residuals. In reviewing the report of the November 1993 VA examination, the Board observes that the veteran was noted to be wearing a T.E.N.S. unit. The VA examiner commented that the range of motion of the veteran's right shoulder was compromised by the T.E.N.S. unit and the subsequently elicited right shoulder movement "did not give, in my judgment, a true picture of the range of motion." The United States Court of Veterans Appeals (hereinafter "the Court") has held that the VA has an affirmative duty to assist a claimant in developing the facts pertinent to his claim and that such a duty includes the scheduling of a thorough and contemporaneous medical examination. Proscelle v. Derwinski, 2 Vet.App. 629 (1992). The Court has clarified that where the clinical record does not adequately reveal the current state of the veteran's disability, further VA examination must be conducted. Schafrath v. Derwinski, 1 Vet.App. 589, 595 (1991). As the veteran's right shoulder gunshot wound residuals are to be evaluated, in part, upon an accurate assessment of current right shoulder motion and given the accredited representative's request that the veteran be afforded further orthopedic evaluation of the right shoulder, the Board finds that an additional VA examination would be helpful in resolving the issues raised by the instant appeal. Additionally, the veteran has advanced contentions on appeal which may be reasonably construed as a request for service connection for right thigh shell fragment wound residuals and a total rating for compensation purposes based on individual unemployability. In light of the VA's duty to assist the veteran in the proper development of his claim as mandated by the provisions of 38 U.S.C.A. § 5107(b) (West 1991) and as interpreted by the Court in Proscelle, Schafrath and Littke v. Derwinski, 1 Vet.App. 90, 92-93 (1990), this case is REMANDED for the following action: 1. The RO should again schedule the veteran for a VA orthopedic examination in order to determine the present nature and severity of his service-connected right shoulder gunshot wound residuals. The examination should be conducted in accordance with the Physician's Guide to Disability Evaluation Examinations. All indicated tests and studies should be accomplished and the findings then reported in detail. If appropriate, the veteran's T.E.N.S. unit should be removed in order to allow for an accurate assessment of right shoulder motion. The claims folder should be made available to the examiner prior to the examination. 2. The RO should then formally adjudicate the veteran's entitlement to service connection for shell fragment wound residuals of the right thigh and a total rating for compensation purposes based on individual unemployability. When the requested action has been completed, and if his claim continues to be denied, the veteran should be afforded a reasonable period of time in which to respond to a supplemental statement of the case. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration if appropriate. The veteran need not take any action unless he is further informed. The purpose of this REMAND is to allow for further development of the record and due process of law. No inference should be drawn from it regarding the final disposition of the veteran's claim. JEFF MARTIN 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 is appealable to the Court. 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).