BVA9508470 DOCKET NO. 93-10 099 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to service connection for a left knee disorder. 2. Entitlement to service connection for a left ankle disorder. 3. Entitlement to service connection for a low back disability. 4. Entitlement to an increased rating for residuals of a right ankle injury, currently evaluated as 10 percent disabling. 5. Entitlement to a compensable rating for a right wrist fracture. ATTORNEY FOR THE BOARD J. A. McDonald, Counsel INTRODUCTION The veteran had active military duty from January 1983 to August 1991. This case comes before the Board of Veterans' Appeals (hereinafter Board) on appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington (hereinafter RO). REMAND The veteran's service medical records reveal that the veteran complained of chronic knee pain which was unresolved by conservative treatment. X-rays documented mild tricompartment degenerative joint disease of the right knee and medial compartment of the left knee. The veteran complained of right knee pain in December 1987. The left knee showed no effusion however, mild crepitance and retropatellar pain were noted. The remainder of the examination of the left knee was within normal limits. The diagnosis included retropatellar pain syndrome worse on the right than on the left, worsened by trauma on the right. On follow-up examination, it was noted that the veteran's pain decreased by taking Motrin, although an attempt at running worsened the pain. In February 1988, the veteran struck her knees on the dashboard of an automobile when she was involved in a car accident. Abrasions to both knees were reported, with a laceration over the left patella. Subsequent to service discharge, the veteran was afforded a VA examination in November 1992. However, an examination of the left knee was not conducted. The Department of Veterans Affairs (hereinafter VA) has a duty to assist the veteran in the development of facts pertinent to her claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.103(a) (1994). Under VA Adjudication Regulations and Guidelines, "if the [examination] report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate . . . ." 38 C.F.R. § 4.2 (1994); see also VA Adjudication Procedure Manual, M21-1, Section 55.03. The United States Court of Veterans Appeals (hereinafter Court) has held that the "fulfillment of the statutory duty to assist...includes the conduct of a thorough and contemporaneous medical examination...." Green v. Derwinski, 1 Vet.App. 121, 124 (1991). The Board therefore concludes that a VA examination would provide a record upon which a fair, equitable, and procedurally correct decision on the veteran's claim for entitlement to service connection for a left knee disorder, can be made. 38 C.F.R. § 3.326 (1994). Service connection was granted for residuals of a right ankle disability by a rating decision in October 1991, and a noncompensable evaluation was assigned. The veteran filed a notice of disagreement to the rating in March 1991, and a statement of the case was issued in July 1992. In September 1992, the veteran perfected her appeal by filing a substantive appeal. By a rating decision in December 1992, a 10 percent disability rating was assigned for this disability. However, the supplemental statement of the case dated January 1993, failed to include the issue of an increased rating for residuals of a right ankle disability as an issue on appeal. The Court has held that where a veteran has filed a notice of disagreement as to the assignment of a disability evaluation, a subsequent rating decision awarding a higher rating, but less than maximum available benefit, does not abrogate the pending appeal. AB v. Brown, 6 Vet.App. 35 (1993). It is further noted that the statement of the case and supplemental statement of the case did not contain appropriate laws and regulations pertinent to claims of entitlement to increased ratings, specifically 38 C.F.R. § 1155 (1994). The Board deems the statement of the case and supplemental statement of the case inadequate in this regard. 38 C.F.R. § 19.29 (1994). Accordingly, the case is remanded to the RO for the following actions: 1. The RO should contact the veteran to determine if she is satisfied with the current disability rating of 10 percent for her service-connected right ankle disability. If so, the veteran should be requested to withdraw her appeal on this issue in writing. 2. Any additional pertinent treatment records from private and VA sources subsequent to November 1992 should be obtained and associated with the claims file. 3. The veteran should be afforded an examination to determine the nature and extent of any current left knee disorder. This examination is to be conducted in accordance with the VA's PHYSICIAN'S GUIDE FOR DISABILITY EVALUATION EXAMINATIONS. All pertinent symptomatology and findings should be reported in detail. Any indicated diagnostic tests and studies, to include range of motion studies and x-rays, should be accomplished. The claims file must be made available to the examiner prior to the examination to facilitate a thorough, longitudinal review of the evidence. 4. When the above actions have been completed, the case should be reviewed by the RO to ensure that all of the foregoing development has been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. Thereafter, if the issues on appeal remain denied, a supplemental statement of the case should be provided to the veteran. If the veteran wishes to pursue her appeal for an increased rating for her service-connected right ankle disability, the supplemental statement of the case should include this issue. The supplemental statement of the case should provide a discussion of the evidence considered, as well as a recitation of pertinent laws, regulations, and diagnostic codes applicable to all issues on appeal. After the veteran has had an adequate opportunity to respond to the supplemental statement of the case, the appeal should be returned to the Board for appellate review. No action is required by the veteran until she receives further notice. CONSTANCE B. TOBIAS 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).