BVA9508364 DOCKET NO. 91-52 526 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to a disability evaluation in excess of 20 percent for residuals of fractures of the right tibia and fibula, prior to April 25, 1994. 2. Entitlement to a disability evaluation in excess of 30 percent for osteomyelitis of the right tibia, prior to April 25, 1994. 3. Entitlement to a current disability evaluation in excess of 40 percent for residuals of right tibia and fibula fractures with history of osteomyelitis and status post right below the knee amputation. 4. Entitlement to service connection for back disability on a secondary basis. 5. Entitlement to service connection for bilateral knee disability on a secondary basis. 6. Entitlement to a total rating based upon unemployability due to service-connected disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD P. H. Mathis, Counsel INTRODUCTION The veteran served on active duty from January 1962 to August 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. The Board remanded the case to the RO in November 1992. In April 1994, the veteran underwent a right below the knee amputation. A total rating under 38 C.F.R. § 4.30 (1994) was assigned from April 25, 1994, until August 1, 1994, when the current 40 percent disability rating became effective for the service-connected residuals of right tibia and fibula fractures with history of osteomyelitis and status right below the knee amputation. REMAND In July 1990, the veteran reported that he had been granted disability benefits by the Social Security Administration (SSA), and he provided a copy of the decision; however, copies of the records upon which the award was based have not been obtained. Records utilized by SSA may be relevant to the veteran's claim for a total rating based upon unemployability due to service- connected disabilities. Also, the contentions include arguments that the veteran developed knee and back disability secondary to the service- connected right lower extremity disability. In May 1991, Steven A. Lamberson, M.D., a private physician in a clinic specializing in physical medicine and rehabilitation, reported that the veteran was seen in May 1991 for evaluation of mid back and left knee pain. The physician opined that the left knee and mid back pain was directly due to the right tibia and fibular fractures with subsequent shortening and osteomyelitis, and that the mid back and left knee pain would not have occurred were it not for the right leg shortening and pain resulting in a markedly antalgic gait. In February 1993, a VA examiner noted that other than disability of the right lower extremity, the veteran's other physical examinations were basically within normal limits. Further, although it was possible that the veteran could have some pain in his opposite extremity and some back pain secondary to his leg length inequality, the examiner was unable to determine if these were secondary to his leg disability or secondary to just degenerative arthritis. The examination report reflects that the X-rays were reviewed, but the X-ray reports are not included in the claims folder. The examination report is not clear concerning whether degenerative arthritis was shown in either of the knees, the back, or both. Also, because of the opinion by the veteran's private physician concerning a causal relationship between service-connected disability and the veteran's complaints of left knee and back pain, there must be additional examinations of the veteran prior to a decision on the merits of the claim. Accordingly, the case is REMANDED to the RO for the following actions: 1. The RO should obtain a copy of the records upon which the veteran's award of SSA disability benefits was based. 2. The veteran should be provided and requested to complete and return an application form for a total compensation rating based upon unemployability. 3. The RO should obtain the complete report of the VA examination on February 3, 1993, especially the report of any X-rays made which are referred to in the diagnosis section of the examination report. 4. The RO should contact the veteran and request that he identify the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who have treated him at any time since service discharge for back or knee disability, or have treated him in recent years for any currently service-connected disability. With any necessary authorization from the veteran, the RO should attempt to obtain copies of pertinent treatment records identified by the veteran, which have not been previously secured, and associate them with the claims folder. In any event, the RO should obtain copies of all VA treatment records which have not previously been secured. 5. Then, the RO should arrange for examination of the veteran by a board certified orthopedist and a board certified neurologist, if available. The orthopedist should determine the nature and extent of any back or knee disorders present as well as the nature and extent of all impairment associated with the currently service- connected right below-the-knee amputation and osteomyelitis. The orthopedist should specifically address whether the osteomyelitis is active and should identify any constitutional manifestations thereof. The orthopedist should also review the claims folder and provide opinions, with complete rationale, as to the etiology of any knee or back disability shown, to include whether it is at least as likely as not that any currently present back or knee disability was caused or chronically worsened by the service-connected osteomyelitis or right lower extremity disability. The orthopedist should also comment on the impact of the veteran's currently service-connected disabilities on his ability to work. The neurologist should determine the nature and extent of any currently present back disability. He should also review the claims folder and provide an opinion, with complete rationale, as to the etiology of any currently present back disability, to include whether it is at least as likely as not that it was caused or chronically worsened by the service-connected osteomyelitis or right lower extremity disability. With respect to each examination, all indicated studies must be performed and the claims folder must be made available to the examiner for review prior to the examination. 6. Following completion of the foregoing, the RO must review the claims folder and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. 7. Thereafter, the RO should undertake any other indicated development, readjudicate the issues currently certified on appeal and adjudicate any additional claims presented. In addressing the service connection claims, the RO should consider whether the veteran's back and knee disabilities were aggravated by service- connected disability. See Allen v. Brown, No. 93-245(U.S. Vet.App. Mar. 17, 1995). If the benefits sought on appeal are not granted to the appellant's satisfaction or if a timely Notice of Disagreement is received with respect to any other matter, a Supplemental Statement of the Case addressing all issues in appellate status should be prepared and furnished to the appellant and his representative. They should be provided an opportunity to respond. Thereafter, in accordance with proper appellate procedures, the case should be returned to the Board for further appellate review, if otherwise in order. All issues properly in appellate status should be returned to the Board at the same time. In taking this action, the Board implies no conclusion, either legal or factual, as to any final outcome warranted. The appellant need take no action until otherwise notified by the RO. _____________________________ SHANE A. DURKIN Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 State. 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).