BVA9505852 DOCKET NO. 92-24 701 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for a medial meniscus tear of the right knee. 2. Entitlement to an increased evaluation for residuals of a fracture of the right knee, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD A. K. Mulroy, Associate Counsel INTRODUCTION The veteran had active service from January 1943 to November 1945. The veteran, in a rating decision dated in December 1945, was originally granted service connection for fracture of the right patella, healed with some atrophy of quadriceps and light limitation of flexion which was determined to be noncompensable. In a rating decision dated in March 1947, the disability was recharacterized as residuals of fracture, right patella. The noncompensable evaluation assigned for this service-connected disability was continued. Subsequently, in a decision dated in March 1992, the St. Louis, Missouri, Regional Office (hereinafter the RO) increased the disability evaluation assigned to his service-connected residuals of fracture of the right patella from 0 to 10 percent. The veteran appealed the rating as inadequate. He is represented by the Veterans of Foreign Wars of the United States. Noting that an MRI performed in April 1992, revealed findings highly suspicious of a frank tear involving the right medial meniscus, the Board of Veterans' Appeals (hereinafter the Board), in a decision dated in December 1993, remanded the claim to permit the RO to consider whether a right medial meniscus tear could be reasonably recognized as a component of the veteran's service-connected residuals of a fracture of the right patella. After determining that the veteran failed to report for scheduled examinations, the RO, in a rating decision dated in February 1994, denied service connection for a possible right medial meniscus tear. The veteran was notified of this determination in a supplemental statement of the case dated in March 1994. The Board has construed a letter received from the veteran in May 1994, as a notice of disagreement and a letter received from the veteran in August 1994, after the issuance of another supplemental statement of the case, as the veteran's substantive appeal. See Sondel v. Brown, 6 Vet.App. 218 (1994) Thus, the issue of the veteran's entitlement to service connection for a right medial meniscus tear is properly before the Board. REMAND The Board initially notes that there is a computer printout message in the file dated in January 1994, indicating that the veteran failed to report for compensation and pension examinations scheduled for January 21, 1994, and January 28, 1994. The veteran subsequently submitted a copy of correspondence from the VA Medical Center confirming that he had rescheduled the January 21st appointment for January 28th. He also provided a VA outpatient clinic record which indicated that he reported to the Medical Center on January 28, 1994. However, the veteran's representative, in an Informal Hearing Presentation dated in February 1995, asserts that the January 28, 1994, VA examination is inadequate for rating purposes. The Board notes that the examiner failed to offer an opinion as to whether the right medial meniscus tear is a component of the service-connected residuals of residuals of a fracture of the right patella. In addition, the record reveals that the veteran sought an opinion from a private physician concerning whether the right medial meniscus tear is a component of the service-connected residuals of residuals of a fracture of the right patella. The physician, in a statement dated in April 1994, expressed the opinion, in part, that it is very difficult to say whether or not the veteran had had a meniscal injury in service secondary to the patella fracture. The Department of Veterans Affairs (hereinafter the VA) has a duty to assist in the development of the evidence pertinent to the claim. 38 U.S.C.A. § 5107 (West 1991); 38 C.F.R. § 3.103 (1994). Accordingly, the case is REMANDED to the RO for the following development: 1. The veteran should be asked to provide the names and addresses of all health care providers from whom he has sought treatment for his service-connected right knee. After obtaining the necessary authorizations, the RO should obtain the actual clinical records of the veteran's treatment. 2. The veteran should next be scheduled for a VA orthopedic examination in order to determine the present nature and extent of his right knee disability. The claims folder should be made available to the examiner prior to the examination for review of the pertinent medical history. All indicated tests and studies should be performed. The examiner must offer an opinion as to whether the right medial meniscus tear is a component of the veteran's service-connected residuals of the fractured right patella. When the above development has been completed, the case should again be reviewed by the originating agency. If the decision remains adverse to the veteran, he and his representative should be furnished a Supplemental Statement of the Case and should be afforded a reasonable 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 clarifying information and to ensure due process and no inference should be drawn regarding the final disposition of the claim. CONSTANCE B. TOBIAS 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).