BVA9505881 DOCKET NO. 91-39 810 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in San Juan, Puerto Rico THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of service connection for a back disorder. 2. Entitlement to an increased evaluation for a right knee disorder, currently evaluated as 20 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Horrigan, Counsel INTRODUCTION The veteran served on active duty from September 1951 to September 1960. This matter came before the Board of Veteran's Appeals (Board) from an October 1990 rating action from the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. The case was remanded by the Board in March 1992 for further development. The veteran had also been seeking a compensable evaluation for atrophy of the right thigh. However, subsequent to the Boards remand of March 1992, a rating action of October 1992 assigned a 10 percent evaluation for this disability from April 24, 1990. Neither the veteran nor his representative has expressed dissatisfaction in regard to this evaluation and, accordingly, this issue is no longer before the Board for appellate consideration. Only those issues listed on the preceding page are currently on appeal. REMAND During a March 1993 hearing at the RO, the veteran's raised the issue of service connection for left knee disability as secondary to his service connected right knee disorder. He also raised the issue of entitlement to benefits for back disability under 38 U.S.C.A.§ 1151 (West 1991) based on a fall incurred during a hospitalization at a VA facility in August 1980. During the hearing, reference was also made to an accident the veteran had in January 1993 but it appears from the hearing transcript that this referred to a knee injury. In a statement dated in December 1993, however, the veteran stated that the claim for service connection for a back condition due to a fall at a VA hospital in January 1993 was being "placed" under the provisions of 38 U.S.C.A. § 1151. It is also noted that there are no clinical records reflecting the August 1980 VA hospitalization and subsequent contemporaneous treatment for back complaints in the claims folder. In addition the record contains no clinical documentation regarding any back injury sustained at a VA facility in January 1993. The record also indicates that other medical evidence relevant to the veteran's claim may also be available but is not currently in the claims folder. In the March 1992 remand, the RO was instructed to afford the veteran an orthopedic examination in which the examiner was to render an opinion regarding the etiology of the veteran's back complaints. The claims folder was to be made available to the examiner for his review prior to the examination. The requested examination was conducted in September 1992 but it does not appear that the claims folder was reviewed by the examiner and no clear opinion was rendered regarding the etiology of the veteran's back disability. The veteran also received a VA orthopedic examination of his right knee disability in August 1992. However, the evidence of record indicates that the veteran's right knee disorder may have worsened subsequent to that evaluation. Finally, the record contains several documents in Spanish for which there are no English translations in the claims folder. In view of the above and given the duty to assist the veteran in the development of his claim under 38 U.S.C.A. § 5107(a) (West 1991), this case is again remanded to the RO for the following development: 1. The RO should arrange for all documentation in the claims folder to be translated from Spanish to English and copies of all such translations should be associated with the pertinent document in the claims folder. 2. The RO should contact the veteran and ask him to identify the names, addresses, and approximate dates of treatment of all VA and non-VA health care providers who have provided him treatment at any time subsequent to discharge for his back disorder and right knee disorder as well as for his left knee disability from 1992 to the present. With any necessary authorizations from the veteran, the RO should attempt to obtain copies of all pertinent treatment records identified by the veteran which are not currently of record, including all relevant records from the VA Medical Center and Outpatient Clinic at San Juan, Puerto Rico, especially regarding treatment for the veteran's claimed back injuries sustained at that facility in August 1980 and January 1993; Ramon Luis Collazo-Bigles, M.D.; Raoul Saldana Schmeir, M.D.; and Juan R. Cabera, M.D.. All records obtained should be associated with the claims folder. 3. The RO should also contact the veteran and ask him to clarify his apparent claim for benefits under 38 U.S.C.A. § 1151 for back disability which was contained in his statement of December 3, 1993. In particular, the veteran should indicate whether he is still seeking secondary service connection for a back disability or whether he wishes to seek benefits under for back disability solely under 38 U.S.C.A. § 1151. When the veteran responds, the RO should take any and all appropriate evidentiary development including the obtaining of any additional relevant clinical documentation. 4. Then, the veteran should be afforded a VA examination, by a board certified orthopedist, if available, to determine the nature and severity of the veteran's back disorder(s) and his bilateral knee disabilities. All indicated special studies should be performed and all pertinent clinical findings reported in detail. The claims folder must be made available to the examining physician prior to his evaluation so that he may study the pertinent clinical records in detail. At the conclusion of the evaluation, the physician should express his opinion, with complete rationale, as to whether it is at least as likely as not that the veterans back disability is due to his service connected right knee disorder or to any injuries sustained at a VA hospital in either August 1980 or January 1993. 5. Then, in light of the additional evidence obtained pursuant to the above requested development, the RO should readjudicate the issues currently certified for appeal. The RO should also adjudicate the issues of entitlement to secondary service connection for a left knee disability and entitlement to benefits for back disability under 38 U.S.C.A.§ 1151 based on injuries sustained at a VA hospital in August 1980 if warranted. If appropriate, the RO should also adjudicate the issue of benefits under 38 U.S.C.A. § 1151 for back disability resulting from a fall at a VA hospital in January 1993. If the benefits sought on appeal are not granted to the veteran's satisfaction, or if a timely Notice Of Disagreement is received with respect to any other issue, the veteran and his representative should be provided with a Supplemental Statement of the Case and afforded a reasonable opportunity to respond. Thereafter, the case should be returned to the Board for further consideration, if otherwise in order. By this remand, the Board intimates no opinion as to the final outcome warranted in this case. No action is required of the veteran until he is so informed by the RO. 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) (1994).