BVA9506511 DOCKET NO. 92-19 087 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to restoration of service connection for residuals of right wrist disability. 2. Entitlement to an increased (compensable) evaluation for residuals of a left wrist fracture. WITNESSES AT HEARING ON APPEAL Appellant and appellant's wife ATTORNEY FOR THE BOARD Nadine W. Benjamin, Counsel INTRODUCTION The veteran has verified service from March 1981 to April 1984. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 1990 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. That decision granted service connection for residuals of a fracture of the left wrist, residuals of a fracture of the right wrist, and for hypertension, all rated as noncompensable. The veteran disagreed with the ratings. At his February 1992 personal hearing, the veteran withdrew his claim for an increased rating for his service-connected hypertension. In a rating decision in April 1992, the RO recognized service connection for residuals of a right wrist injury, but simply eliminated the fracture residuals of the right wrist as a service-connected disability. In December 1993, the Board remanded the case to the RO to either rate the residuals of a right wrist fracture disorder or to initiate a severance action under 38 C.F.R. § 3.105(d). In March 1994, the RO proposed to sever service connection for residuals of a right wrist fracture and for residuals of a right wrist injury. By a rating decision in November 1994, service connection for residuals of a right wrist fracture was severed, as was service connection for residuals of a right wrist injury. While the veteran has not formally disagreed, for reasons which become obvious, the Board is proceeding with the restoration issue. This decision will address the issue of entitlement to restoration of service connection for right wrist disability. The remand that follows will address the issue of entitlement to an increased evaluation for the veteran's service-connected left wrist disorder. CONTENTIONS OF APPELLANT ON APPEAL In essence, it is contended by the veteran that service connection should remain in effect for residuals of a right wrist disability based on his inservice treatment as well as records of treatment after his discharge from service. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the evidence clearly is in favor of restoration of service connection for residuals of a fracture of the right wrist. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. Service connection was granted for residuals of fracture of the right wrist in May 1990, and service connection for residuals of a right wrist injury was granted in April 1992. 3. Service connection for residuals of a fracture of the right wrist and service connection for residuals of a right wrist injury were severed in November 1994. 4. There was a tenable basis for a grant of service connection for residuals of a right wrist fracture in May 1990. CONCLUSION OF LAW The RO decision in May 1990 granting service connection for residuals of a fracture of the right wrist was not clearly and unmistakably erroneous. 38 C.F.R. § 3.105 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board finds that the veteran's claim is well grounded. That is, it is not inherently implausible. The Board also finds that the facts relevant to the issue on appeal have been properly developed and the statutory duty of VA to assist the veteran in the development of his claim has been satisfied. 38 U.S.C.A. § 5107(a) (West 1991). The legal or factual issue presented for Board review is whether the May 1990 grant of service connection for residuals of a fracture of the right wrist was clearly and unmistakably erroneous (the burden of proof being upon the Government). Service connection, once granted, cannot be severed, unless such error was involved. 38 C.F.R. § 3.105. The veteran's service medical records show that at entrance in 1980, there were no musculoskeletal abnormalities. In October 1983, he was seen complaining of falling on both wrists after jumping from a fence. Right wrist pain was described as worst than the left. There was full range of motion with severe pain. Bilateral wrist sprain was diagnosed. Two days later he was again treated and in was reported that no fracture had been noted. Bilateral wrist sprain was diagnosed. In January 1984, the veteran complained of right wrist pain at the lateral aspect with no recent trauma. He gave a history of a sprain in October 1983. At separation in March 1984, and on examination for re- enlistment in September 1984, there was no showing of a right wrist abnormality. In February 1988, the veteran was treated at the Methodist Hospital for an injury to the right wrist in a fall. X-rays taken at that time revealed a fracture of the mid-portion of the carpal navicular bone, which was possibly representative of an old rather than a recent fracture. In August 1989, the veteran was treated by Howard L. Hecht, M.D., after the veteran complained of falling and injuring his right hand. The veteran gave a history of having injured his right wrist in the military. X-rays were reported to show a fracture through a cystic area of the carpal navicular bone of the wrist. It was stated that it appeared as though he had a fresh fracture superimposed on a "cystic area of the navicular, perhaps from an old injury." He subsequently underwent a bone graft in September 1989. The veteran was examined by the VA in March 1990, and he reported that he had injured his wrist during service and that X-rays taken at that time were negative. He reported that the wrist continued to hurt from time to time. Examination showed limitation of motion of the wrist, and X-rays showed an old fracture line through the navicula. No acute fractures were noted. The examiner diagnosed residual fracture of the right wrist. On the basis of the above-described medical evaluations, the RO, in May 1990, granted service connection for residuals of a fracture of the right wrist. As previously noted, service connection will be severed only where evidence establishes that it is clearly and unmistakably erroneous (the burden of proof being upon the Government). In the present case, at the time of the May 1990 grant of service connection for residuals of a fracture of the right wrist, the RO had before it three reports of X-ray evidence of an old fracture of the right wrist. Although a fracture was not documented in service, the veteran did injure the right wrist in October 1983, and had a subsequent complaint of continuing pain 3 months later. After evaluating the clinical evidence, the Board finds that there was a tenable basis for a grant of service connection for residuals of a right wrist fracture. Although the evidence did not confirm a fracture of the right wrist during service when the veteran fell and injured it, subsequent X-rays have shown evidence of an old fracture of the right wrist. Included are 1988 films, prior to which only the fall in service could have accounted therefor. In view of this evidence, the Board finds that it was reasonable to conclude, as a matter of fact, that the veteran had sustained a fracture of the right wrist in service. Therefore, the grant of service connection for residuals of a fracture of the right wrist did not involve clear and unmistakable error and the severance of service connection in November 1994 was improper. The Board also wishes to point out that in early 1992, the veteran and his wife testified at a personal hearing, with the veteran reporting having continuous pain since his injury in service. He stated that he had been told in 1989 by a physician that he had had an old injury and that the wrist had been broken, healed on its own, and grew a cyst. Additionally, the RO received a May 1994 letter from Dr. Hecht. He reported that in August 1989, the veteran had been seen by him with an old injury to his right carponavicular and a superimposed fracture thorough the carponavicular, which appeared to be of relatively recent onset. Dr. Hecht also related that the veteran had a previously injured cystic lesion in the navicular. He reported that it looked like a long standing injury and because of the large cystic area and the non-union, a bone graft was performed. It was Dr. Hecht's opinion that the veteran's major injury occurred while he was in the service when he fell while climbing a fence. This evidence further supports the finding that the March 1990 rating decision granting service connection was not clearly and unmistakably erroneous. ORDER Restoration of service connection for residuals of a right wrist fracture is granted. REMAND The veteran also seeks an increased rating for his service connected residuals of a fracture of the left wrist. The Board notes that on the most recent VA examination for disability evaluation, which was performed in March 1990, there is no mention of the left wrist. In fact, it does not appear that VA has ever examined the left wrist. VA has a duty to assist the veteran in the development of facts pertinent to his claim. 38 U.S.C.A. § 5107(a) (West 1991). This duty includes obtaining VA examinations when necessary. Littke v. Derwinski, 1 Vet.App. 90 (1991). It also includes securing records when deemed helpful. Murphy v. Derwinski, 1 Vet.App. 78 (1990). In view of the foregoing, the case is hereby REMANDED to the RO for the following development: 1. 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 may have treated him for left wrist disability recently. With any necessary authorization from the veteran, the RO should attempt to obtain copies of pertinent treatment records identified by the veteran which are not currently of record. 2. The RO should schedule the veteran for a special VA orthopedic examination, to evaluate any current manifestations of the veteran's service-connected residuals of a left wrist fracture. Any indicated tests, including X-rays, should be performed. The claims folder should be made available to the examiner for review prior to the examination. 3. Then, the RO should readjudicate the issue on appeal. If the benefit sought on appeal is not granted to the satisfaction of the veteran, a Supplemental Statement of the Case should be issued, and the veteran should be provided an 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 any final outcome warranted. No action is required of the veteran until he is otherwise notified by the RO. J. J. SCHULE 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. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals. 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).