BVA9507241 DOCKET NO. 93-13 248 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to a compensable evaluation of residuals of a fracture of the right ulna. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Melissa F. Marquez, Associate Counsel INTRODUCTION The appellant had active service from May 1968 to February 1970. This matter came before the Board of Veterans' Appeals (hereinafter Board) on appeal from an October 1991 rating decision of the Boston, Massachusetts Regional Office (hereinafter RO), of the Department of Veterans Affairs (hereinafter VA), which denied entitlement to a compensable evaluation for residuals of a right ulna fracture. REMAND The appellant filed an initial application in July 1990 for entitlement to service connection for residuals of an in-service fracture of the right ulna. By a September 1990 rating decision, service connection for a fractured right ulna was granted, with a noncompensable evaluation assigned thereto. Such noncompensable evaluation was confirmed in a March 1991 rating decision. In support of the current application for an increased rating, VA outpatient treatment (OPT) reports dated from January to May 1991 have been associated with the record. Such VA OPT reports indicated complaints of intermittent right arm discomfort, with an impression of possible traumatic osteoarthritis of the right forearm given. However, such findings were not supported by accompanying x-rays of the right wrist and forearm which indicated no abnormalities. Moreover, following examination in January 1991 including a EMG, such examiner diagnosed mild bilateral ulnar sensory neuropathy with the left greater than the right, but indicated that such EMG and x-ray evidence did not support current complaints and therefore recommended a second EMG. Subsequently, a VA examination revealed no functional abnormalities of the right ulna with some limitation of motion of the right wrist, but did not contain any findings of associated neuropathy. By a October 1991 rating decision, the noncompensable evaluation was confirmed, and the appellant expressed disagreement with such decision in January 1992. Subsequently, VA OPT treatment reports dated from May 1991 through May 1992 were associated with the claims folder. Such reports contain continued complaints of recurrent throbbing pain in the right forearm and wrist, with decreased strength and mobility of that arm also reported. Objective findings include possible mild neuropathy of the right wrist and forearm with some limitation of motion and decreased grasp of the right wrist. Associated physical therapy notes indicate increased strength and range of motion of the right wrist, as well as a trial period with a TENS unit. Accompanying x-rays were reported as demonstrating no acute abnormalities. However, a January 1992 bone scan of the wrists and forearms indicated marked increase in activity in the wrists bilaterally, right greater than left, and in the metacarpal and interphalangeal joints indicative of extensive arthritis, as well as increased activity in the elbows bilaterally. Upon examination in February 1992, the examiner diagnosed probable arthritis of the right wrist, with partial fibrosis and ankylosis secondary to an old ulnar fracture. However, such examiner did not indicate on what basis such an opinion was made. Nor was it determined whether there was other ongoing systemic pathology affecting other joints. During a July 1992 personal hearing, the appellant testified that he was employed as a policeman for 10 years prior to entering self-employment. In addition, he stated that upon recently attempting to rejoin the police force, he was rejected due to an inability to hold and operate a weapon with his right hand. Moreover, he testified that he currently suffers from constant throbbing pain radiating from his right forearm to the right wrist and fingers, as well as decreased mobility and strength associated therewith. Finally, he testified that he has undergone continuing VA OPT treatment to date for such symptomatology, and was recently referred to an arthritic specialist. Those records are not on file. The VA has a duty to assist a veteran in developing facts pertinent to his claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. §§ 3.103, 3.159 (1994). That duty includes obtaining medical records and examinations where indicated by the facts and circumstances of an individual case. See Schafrath v. Derwinski, 1 Vet.App. 599 (1991); Murphy v. Derwinski, 1 Vet.App. 78 (1990); Littke v. Derwinski, 1 Vet.App. 90 (1990). It is unclear from the medical evidence of record as to the current residuals of the appellant's service-connected fracture of the right ulna. As such, the Board concludes that more thorough examinations are necessary in order to evaluate reported residual symptomatology. In view of the above, the Board also concludes that employment records and recent VA OPT reports would greatly assist in making an adequate decision on appeal. Accordingly, the case is REMANDED for the following developments: 1. The RO should contact the appellant to determine the names, addresses, and dates of treatment of any physicians, hospitals or treatment centers (private, VA or military) who provided him with relevant treatment since May 1992, including any employment physicals. In addition, the RO should request the appellant to provide the names and current addresses for any previous employers, as well as dates of employment or applications for such employment, from which he underwent any medical treatment or physical examinations, including but not limited to the police force. After obtaining the appropriate signed authorization for release of information forms from the appellant, the RO should contact each physician, hospital, treatment center or employer specified by the appellant to obtain any and all medical or treatment records or reports relevant to the above mentioned claim. All pieces of correspondence, as well as any medical or treatment records obtained, should be made a part of the claims folder. If private treatment is reported and those records are not obtained, the appellant and his representative should be provided with information concerning the negative results, and afforded an opportunity to obtain the records. 38 C.F.R. § 3.159 (1994). 2. The RO should schedule the appellant for a complete orthopedic and neurological examinations in order to determine the severity of any residuals of the appellant's right ulna fracture currently manifested. All indicated tests and studies should be done, including objective range of motion studies of the right wrist, elbow and arm, expressed degrees, and appropriate x-rays. Specifically, the examiners are requested to determine whether any right hand or wrist symptomatology, if found, is attributable to the appellant's in-service fracture of the right ulna, intercurrent causes, or any other factors. If these matters cannot be medically determined without resort to mere conjecture, this should be commented upon in the report. In addition, all subjective complaints and objective findings should be reported in detail. The claims folder, including the service medical records and accompanying x-rays, and the records received pursuant to the above paragraph should be made available to the examiners prior to the examination, and reviewed prior thereto. The examinations should be conducted and reported in accordance with the guidelines set forth in the VA Physician's Guide for Disability Evaluation Examinations. 3. The RO should then readjudicate the appellant's claim for an increased evaluation for residuals of a fracture of the right ulna, with application of the appropriate diagnostic codes in the Schedule for Rating Disabilities to determine the percentage of impairment caused by such disability. In order to avoid undue delay in this case, the RO should make certain that the instructions contained in the REMAND decision, detailing the requested developments, have, in fact, been substantially complied with. When this developments have been completed, and if the benefit sought is not granted, the case should be returned to the Board for further appellate consideration, after compliance with appropriate appellate procedures, including issuance of a supplemental statement of the case. It is requested that this statement specifically set forth the reasons and bases for the decision. No action by the appellant is required until he receives further notice. The Board intimates no opinion, either legal or factual, as to the ultimate disposition warranted in the claim for entitlement to a compensable evaluation for residuals of the appellant's fracture of the right ulna pending completion of the requested developments. MICHAEL D. LYON 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).