BVA9500633 DOCKET NO. 93-05 584 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to an increased rating for bronchiectasis, currently evaluated as 30 percent disabling. 2. Entitlement to an increased rating for recurrent dislocation of second right sternocostal articulation, currently evaluated as 20 percent disabling. 3. Entitlement to an increased rating for a left knee disorder, currently evaluated as 20 percent disabling. 4. Entitlement to a total rating for compensation purposes based on individual unemployability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. A. McDonald, Associate Counsel REMAND The veteran had active military duty from July 1943 to February 1946. The Department of Veterans Affairs (hereinafter 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); 38 C.F.R. § 3.103(a) (1993). The veteran was afforded a hearing before the Board of Veterans' Appeals (hereinafter Board) in May 1993. At this hearing, the veteran and his representative presented a number of issues that need to be addressed prior to adjudication of the issues certified on appeal. Essentially, the veteran contends that he has anemia and a heart disorder which are due to his service-connected pulmonary disorder. He further states that his service medical records revealed that he injured his left clavicle in service, and therefore, these disorders should be service-connected. The United States Court of Veterans Appeals (hereinafter Court) has held that all issues "inextricably intertwined" with the issue certified for appeal, are to be identified and developed prior to appellate review. Harris v. Derwinski, 1 Vet.App. 180 (1991). As the issues of service connection for anemia, a heart disorder, and residuals from injuries to the veteran's left clavicle are "intertwined" with the issue of entitlement to a total rating for compensation purposes based upon individual unemployability, and were not addressed by the RO, the case is remanded to the RO in accordance with the holding in Harris for development The veteran's representative further contends that the rating decision in 1982 was clearly and unmistakably erroneous. This rating decision granted service connection for bronchiectasis, with resection of the right lower lobe of the lung, and assigned a 10 percent disability rating under Diagnostic Code 6601. It is maintained that this disability should have been rated under Diagnostic Code 6818, and that the minimum rating of 30 percent should have been assigned. Consideration of a 60 percent evaluation retroactive to the date of such entitlement has also been requested. Additionally, the veteran and his representative maintain that the VA examinations conducted in conjunction with his claim were inadequate as complete x-rays were not taken, nor were range of motion studies performed. The United States Court of Veterans Appeals (hereinafter Court) has held that "[w]here, as here, the record before the [Board] was clearly inadequate, remand [to the RO] is required." Littke v. Derwinski, 1 Vet.App. 90, 93 (1990). The Court has also 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). 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 (1993); See also VA Adjudication Procedure Manual, M21-1, Section 55.03; Green, 1 Vet.App. 121. As such, this case is remanded to the RO for the following actions: 1. All pertinent medical treatment records from private and VA sources subsequent to November 1992 should be obtained and associated with the claims file. 2. The veteran should be afforded VA pulmonary, and orthopedic examinations to determine the nature and extent of the disabilities pertinent to the veteran's appeal. The examinations should be performed in accordance with the VA's PHYSICIAN'S GUIDE FOR DISABILITY EVALUATION EXAMINATIONS. All pertinent symptomatology, functional limitations, and findings should be reported in detail. All necessary studies should be performed. Moreover, the examiners are requested to express an opinion as to the effect the veteran's service- connected orthopedic and pulmonary disorders have on his ability to obtain and retain employment. All medical evidence in the claims file must be made available to the examiners prior to the examinations for use in study of this case. 3. The RO should develop the issues of whether the February 1982 rating decision was clearly and unmistakably erroneous in rating the veteran's pulmonary disorder under Diagnostic Code 6601. Further, the RO should consider the additional issues of entitlement to service connection for a heart disorder, secondary to his service-connected pulmonary disorder; and entitlement to service connection for anemia, secondary to his pulmonary disorder. The RO should also consider the issues of entitlement to service connection for residuals of a left clavicle injury. Following completion of the above, the RO, in a rating decision, should reconsider the issues currently on appeal, to include the issues of whether the rating decision of 1982 was clearly and unmistakably erroneous; entitlement to service connection for a heart disorder and anemia, secondary to the veteran's service-connected pulmonary disorder; and entitlement to service connection for residuals of an injury to the veteran's left clavicle. If the benefits sought are not granted, the veteran and his representative should be furnished a supplemental statement of the case. After allowing opportunity for the veteran to respond, the case, including any additional evidence, should then be returned to the Board for further appellate review. No action is required of the veteran until he receives further notice. EDWARD W. SEERY 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) (1993).