BVA9501173 DOCKET NO. 92-24 480 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to an increased rating for residuals of a shell fragment wound to Muscle Group XXI, currently evaluated as 10 percent disabling. 2. Entitlement to an increased (compensable) rating for residuals of a shell fragment wound to the right shoulder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD Susan S. Toth, Associate Counsel INTRODUCTION The veteran had active service from February 1951 to January 1953. The Board of Veterans' Appeals (Board) remanded the case in January 1994 to further develop the evidence. REMAND The Department of Veterans Affairs' (VA) examination report of July 1994 did not fully address the questions presented by the Board in the remand of January 1994. In that regard, 38 C.F.R. § 4.2 (1993) provides that the rating board must return an examination report as inadequate for evaluation purposes if it does not contain sufficient detail. Specifically, the Board had requested that the examiners express an opinion as to whether the veteran had arthritis of the right shoulder or arm and, if so, whether arthritis of the right shoulder, arm and dorsal spine were attributable to the service-connected disabilities. In the examination report, the examiner stated that there was no arthritis in the right shoulder and arm. However, contemporaneous X-rays were not completed, nor did the examiner reconcile the prior conflicting X-ray reports. For instance, a VA X-ray report of January 1990 contained diagnoses of early osteoarthritic changes of the lumbodorsal spine and osteoarthritic involvement of the acromioclavicular joint of the right shoulder. VA X-ray reports of January 1991 and September 1992 indicated that there was no evidence of arthritis in the right shoulder or arm. Upon remand, these conflicting X-ray reports must be reconciled. The Board also notes that the RO did not adjudicate the issues of arthritis of the right shoulder, arm and dorsal spine. Since the evaluations presently assigned for the service-connected disabilities may be affected by the award of service connection for any of the disabilities listed immediately above, they are inextricably intertwined with the issues certified on appeal and must be adjudicated in conjunction with them. In that respect, the Board cannot refuse to acknowledge and act upon relevant assertions and issues which the record clearly shows. Payne v. Derwinski, 1 Vet.App. 85, 87 (1990). Theses issue are inextricably intertwined with the issues before the Board and, therefore, must be adjudicated before the increased rating issues can be addressed on the merits. The United States Court of Veterans Appeals has previously held that a claim which is inextricably intertwined with a pending claim must be adjudicated prior to rendering a final order with respect to the pending claim. Harris v. Derwinski, 1 Vet.App. 180 (1991). Under the circumstances of this case, the Board finds that additional assistance is required. Accordingly, the case is REMANDED to the RO for the following: 1. The RO should contact the veteran and obtain the names and addresses of all health care providers where he has received treatment for the service-connected disabilities and arthritis of the right shoulder, arm and dorsal spine from September 1994 to the present. Thereafter, the RO should acquire copies of all available medical records, to include those from the VA Medical Center in Huntington, West Virginia, from September 1994 to the present. Once obtained, all records must be associated with the claims folder. 2. Following the receipt of medical records, the veteran should be afforded VA special examinations in orthopedics and neurology to determine the nature and extent of the residuals of shell fragment wounds to the thoracic muscle group and the right shoulder. All indicated tests, to include X-rays and range of motion studies, should be accomplished. If feasible, those findings pertaining to the service- connected conditions should be dissociated from any coexisting nonservice-connected disability. It is imperative that the examiners review the entire claims folder prior to the examinations. The service- connected disabilities should be evaluated in relation to their history with emphasis upon the limitation of activity imposed by the disabling conditions in light of the whole recorded history. The examiners should comment on the degree of functional disability due to pain as supported by adequate pathology and as evidenced by the visible behavior of the veteran. The orthopedic examiner should express an opinion, based on contemporaneous X- ray studies, as to whether the veteran has arthritis of the (a) right shoulder; (b) right arm and; (c) dorsal spine. If the veteran has arthritis in any of the specified areas, the examiner should provide an opinion concerning whether or not any arthritis found was attributable to the service-connected disabilities, and the bases for those opinions. 3. Thereafter, the RO should adjudicate the issue of whether service connection is warranted for arthritis of the right shoulder, arm and dorsal spine. The veteran should be instructed to file a notice of disagreement in the event that he disagrees with the RO's decision on these issues. If he so files, a supplemental statement of the case should be prepared on those issues, as well as the issue on appeal. The veteran and his representative should then be given an opportunity to respond; and, with regard to the additional issue, file a substantive appeal. Thereafter, the case should be returned to the Board in accordance with current appellate procedures. The appellant need take no action until he is further informed. The purpose of this REMAND is to obtain additional information, and no inference should be drawn regarding the final outcome of this claim as a result of this action. I. S. SHERMAN 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).