BVA9504948 DOCKET NO. 91-46 818 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to an increased (compensable) evaluation for the residuals of a fracture of the right clavicle. 2. Entitlement to an effective date earlier than September 19, 1990, for the assignment of a 20 percent evaluation for a right knee disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD W. H. Wetmore, Counsel INTRODUCTION The veteran served on active duty from February 1973 to February 1975. The Board of Veterans' Appeals (Board) received this case on appeal from a March 1991 RO rating decision. The Board returned this case to the RO in January 1992 to afford the veteran an opportunity to provide sworn testimony. He did so in May 1992. The hearing officer determined in February 1993 that the 10 percent evaluation assigned the veteran's right knee disability should be raised to a 20 percent evaluation. The RO effectuated this determination and assigned an effective date of September 19, 1990, the date the veteran's most recent claim for this benefit was received. In a statement from the veteran received by VA in September 1990, he indicated that his service-connected knee disorder prevents him from performing his previous occupation as a construction worker. The Board construes this statement as raising the issue of a total rating based on individual unemployability, and the RO should take appropriate action. REMAND When the Board remanded this case in August 1994, it was pointed out that when the veteran was examined for compensation purposes by a VA neurologist in December 1992, it was reported that there was no limitation of right upper extremity motion. During orthopedic examination several days later, in January 1993, right shoulder motion was restricted in virtually all planes. X-ray examination of the shoulder was essentially normal, but the examiner's diagnosis included arthritis of the right shoulder. The basis of the diagnosis of arthritis was thus not clear. Before the RO and the Board consider the propriety of an evaluation based on arthritis, clarification of the diagnosis and the basis thereof were deemed necessary and the Board requested that an orthopedic examination of the veteran be scheduled. Subsequent to the August 1994 remand, the veteran was reported to have been incarcerated in a county jail in another state from that where the RO is located. While the Board can understand that this presents the RO with practical problems in terms of solving the dilemma outlined above, the Board still believes that an effort should be made to reach a resolution of those issues. The RO took no action once information was obtained concerning the veteran's incarceration. Therefore, while holding a decision with respect to the claim for an earlier effective date in abeyance, the Board still believes that further development of the medical record with respect to the degree of impairment of the veteran's right shoulder is desirable. Accordingly, this case is REMANDED for the following: 1. The veteran should be requested to identify any treatment received for his right shoulder since his separation from active duty. Any necessary authorizations should be obtained and copies of all clinical records regarding such treatment should be associated with the claims file. 2. Following completion of the above, the veteran should be scheduled for an examination by an orthopedist to determine the extent of the residuals of a fracture of the right clavicle. All indicated studies, as contemplated by The Physician's Guide for Disability Evaluation Examinations, (IB 11-56, VA Department of Medicine and Surgery, 1985, with supplements), should be undertaken. The examiner should review the claims file and provide an opinion as to the severity of the impairment of the right clavicle. Moore v. Derwinski, 1 Vet.App. 401 (1991). If the veteran is still incarcerated, the supervising officer should be contacted to explore the best course to be followed in obtaining a current examination of the veteran. If feasible, it might be appropriate to have him transported to the nearest VA facility. Alternatively, arrangements for examining him in the county jail, by an doctor who could complete the examination under the guidelines specified above, might be best. Any treatment records regarding his right shoulder compiled during his incarceration would be useful and should be obtained. If a current examination is not feasible, the claims file should be referred to an orthopedist for review and the preparation of a report that clarifies the current diagnosis of the impairment of his right shoulder, with a supporting rationale. 3. The RO should take adjudicatory action based on the evidence obtained pursuant to the development sought above, including consideration of additional regulations that might be applicable to the current diagnosis of his right shoulder disability. If the benefit sought by the veteran is not granted, a supplemental statement of the case should be prepared. After the veteran and his representative have been given an opportunity to respond to the supplemental statement of the case, the claims folder should be returned to this Board for further appellate review. No action is required by the veteran until he receives further notice. The purpose of the remand is to procure clarifying data and to comply with governing adjudicative procedures. The Board intimates no opinion, either legal or factual, as to the ultimate disposition of this appeal. BARBARA B. COPELAND 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).