BVA9504538 DOCKET NO. 90-25 931 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an increased rating for paralysis of the left peripheral and radial nerves, with arthritis of the left wrist, currently evaluated as 40 percent disabling. 2. Entitlement to benefits under the provisions of 38 U.S.C.A. § 1151 (formerly § 351) (West 1991) for additional left knee disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Brian J. Milmoe, Counsel INTRODUCTION The veteran served on active duty from July 1941 to October 1942. In April 1991, the Board of Veterans' Appeals (BVA or the Board) entered a decision denying the veteran's application to reopen previously denied claims of entitlement to service connection for a chronic eye disorder and for hypertension, his claim for benefits under 38 U.S.C.A. § 351, since renumbered as § 1151, and his claim for increase relating to paralysis of the left peripheral and radial nerves. The veteran appealed to the United States Court of Veterans Appeals, hereinafter the Court, and in response, the Court in a memorandum decision affirmed the BVA denial of the attempt to reopen the claims for service connection for an eye disorder and hypertension. Additionally, the Court vacated the BVA's denial regarding the § 1151 and increased rating issues and remanded those matters to BVA for further action. [citation redacted]. In Gardner v. Derwinski, 1 Vet.App. 584 (1991), the court held that 38 C.F.R. § 3.358(c)(3) was unlawful. In April 1992, the Department of Veterans Affairs (VA) instituted a VA-wide policy of holding in abeyance certain cases which were likely to fall within the precedent of Gardner, pending the Secretary's appeal. The United States Court of Appeals for the Federal Circuit and the United States Supreme Court subsequently affirmed the Court's decision. Gardner v. Brown, 5 F.3d 1456 (Fed. Cir. 1993); Brown v. Gardner, 115 S. Ct. 552 (1994). As a result, the stay on the adjudication of Gardner claims was lifted in late January 1995, and thus, that issue is now properly before BVA for consideration. REMAND Pursuant to the February 1993 decision of the Court, wherein BVA was directed to undertake certain actions, including the performance of a medical examination concerning the veteran's paralysis of the left peripheral and radial nerves and left wrist arthritis, the instant case is REMANDED to the VA Regional Office (RO) in Montgomery, Alabama, for the completion of the following actions: 1. The RO should obtain legible copies of all clinical records compiled during a period of hospitalization of the veteran at the VA Medical Center in Birmingham, Alabama, from May 3 to June 3, 1987, and all follow-up treatment, be it inpatient or outpatient, related to the total left knee replacement undertaken during the above- noted hospitalization. Once obtained, those records should be made a part of the veteran's claims folder. 2. The RO should contact the veteran in writing for the purpose of determining from which physicians and/or facilities, including those within the VA health care system, the veteran has received medical treatment for paralysis of the left peripheral and radial nerves, with arthritis of the left wrist, since 1990. Once such information is received, the RO should obtain all relevant reports of treatment from VA and non-VA sources for inclusion in the veteran's claims folder. In the event that the veteran fails to respond to the RO's request for information, all pertinent reports of inpatient and outpatient treatment compiled at the VA Medical Center in Birmingham, Alabama, since 1990 should be obtained and added to the claims file. 3. Thereafter, the veteran should be afforded medical examinations by VA board- certified specialists in orthopedics and neurology for the purpose of determining the current nature and severity of the veteran's service-connected paralysis of the left peripheral and radial nerves, with arthritis of the left wrist. Such evaluations should be performed in accordance with the provisions of Chapters 2 and 13, respectively, of the VA Physician's Guide for Disability Evaluation Examinations. Any and all indicated tests should be conducted. The claims folder in its entirety should be furnished to each examiner prior to any contact with the veteran to afford each examiner the opportunity to review the entire clinical history of the disorder in question. 4. Finally, the RO should readjudicate each of the issues identified on the title page of this remand action, based on a review of all of the evidence of record. With respect to the veteran's claim for increase, it should be determined under what Diagnostic Code or Codes is the paralysis of the left peripheral and radial nerves, with arthritis of the left wrist, most appropriately rated and for what reasons. (Note that the Court observed that the RO had previously rated such disorder under Diagnostic Codes 8512, 8612, and 8712, while BVA previously had utilized only Diagnostic Code 8512.) If the action taken remains adverse to the veteran in any way, he and his representative should be provided a supplemental statement of the case. They should then be afforded a reasonable period of time in which to respond. The cas should then be returned to the Board for further appellate consideration. ALBERT D. TUTERA 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).