BVA9505982 DOCKET NO. 93-15 191 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to an increased rating for residuals of a gunshot wound of the right foot, currently rated as 10 percent disabling. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Richard E. Coppola, Associate Counsel INTRODUCTION The veteran had active service from March 1943 to February 1946. This matter came before the Board of Veterans' Appeals (Board) on appeal from a rating decision of January 1992 from the Detroit, Michigan, Department of Veterans Affairs (VA) Regional Office (RO), which denied a rating in excess of 10 percent for the veteran's service-connected right foot disorder. In July 1989, the veteran submitted a claim for an increased rating for a service-connected left shoulder condition. He is not service-connected for a left shoulder disability. He also claimed service connection for arthritis of the neck, upper back, left shoulder and right foot. The RO requested evidence and information to support his claim by letter dated August 25, 1989; the veteran did not respond. The veteran's representative states that perhaps the veteran is seeking service connection for "left shoulder, arthritis, neck or upper back." It is unclear whether the veteran is currently seeking service connection for additional disabilities, and, if so, the nature of such disorders. This is referred to the RO for further action. REMAND The veteran has claimed that the residuals of a gunshot wound of the right foot have increased in severity. He maintains that he has incurred additional lower right extremity disability secondary to his service-connected right foot disability. The representative argues that the veteran should be service- connected for residuals of the entire lower right extremity that is inextricably intertwined with the issue of an increased rating for the service-connected residuals of the right foot. It is requested that the case be remanded to the RO for additional medical examination and testing to determine if there is a relationship between the service-connected disorder and any other disability of the lower right extremity. The December 1991 report of VA examination indicates that the veteran underwent open heart surgery in 1989. It appears that donor veins were removed from the lower extremities above the ankles in order to complete the coronary bypass. Based on that examination and evaluation of the residuals, the diagnosis was minimal sequelae manifested by slight loss of dorsiflexion of the first metatarsophalangeal joint and slight reduction in plantar flexion of the second metatarsophalangeal joint of the right foot. The physician did not report any additional disability of the lower right extremity secondary to the service-connected residuals. The February 1993 report of VA examination includes a history of in-service treatment of the gunshot wound of the right foot, and a history of removal of a donor vein from the right leg necessary to complete a coronary bypass. The physician noted that post- surgical therapy necessitated ten months of physical therapy which caused right leg pain. The veteran stated that he was advised to walk for two hours a day and that the walking for that length of time causes pain in the foot, calf and thigh. The physician stated that "[t]he most recent symptoms are associated with his (the veteran) open heart surgery." The physician also commented that most of the pain described was on the dorsum of the foot, the calf and the thigh. The physician concluded that the right leg pain was caused by prolonged walking in order to prevent coronary artery disease and its progression, and possible peripheral vascular disease of the lower right extremity. The Board finds that the claim of secondary service connection for disability of the lower right extremity is inextricably intertwined with the claim for an increased rating for residuals of a gunshot wound of the right foot. This claim should be adjudicated by the RO prior to review by the Board. The Board also finds that a current VA examination should be conducted in order to assist the veteran in accordance with 38 U.S.C.A.. § 5107(a) (West 1991). Under the present circumstances, the Board finds that additional development of the evidence is necessary. Accordingly, the case is REMANDED for the following actions: 1. The veteran should identify the names and addresses of any medical care providers, VA or otherwise, who have treated him for residuals of a gunshot wound of the right foot or symptoms of the lower right extremity since February 1993. After obtaining any needed authorization from the veteran, the RO should obtain copies of all these records. 2. The veteran should then be afforded special VA orthopedic examination to determine the nature and extent of all residuals of the service-connected residuals of a gunshot wound of the right foot. The scope of the examination should be broad enough to cover all residual conditions which are suggested by the veteran's complaints, symptoms or findings. The examination should be conducted in accordance with the Physician's Guide for Disability Evaluation Examinations. All necessary tests should be performed, including range of motion studies and stability testing of the right foot. The physician should be provided the claims folder for review prior to the examination. The disability should be evaluated in relation to its history, with emphasis upon the limitation of activity imposed by the service-connected foot disability, including any abnormal ambulation. The physician should indicate the extent of functional loss, including that which is due to pain, and whether such impairment is consistent with the objective findings. The physician should also express an opinion as to the etiology of any symptoms or disabilities of the lower right extremity that are not related to or are secondary to residuals of the in-service gunshot wound. 3. The case should then be reviewed by the RO and any issues on appeal should be adjudicated, including service connection for disability of the lower right extremity. The rating decision should reflect consideration of all potentially applicable criteria, to include consideration of the applicability of 38 C.F.R. § 3.321(b)(1). If the decision remains adverse to the veteran in any way, he and his representative should be furnished with a supplemental statement of the case which summarizes the pertinent evidence, fully cites the applicable legal provisions not previously provided, and reflects detailed reasons and bases for the decision. They should then be afforded the applicable time period to respond. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if appropriate. The veteran need take no action until he is further informed. The purpose of this REMAND is to obtain additional information and to ensure due process of law. No inference should be drawn regarding the final disposition of the claim as a result of this action. EUGENE A. O'NEILL 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 action has been taken in accordance with the Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 303, 108 Stat. 4645, ___ (1994), and 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).