BVA9504024 DOCKET NO. 93-09 252 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to service connection for osteoarthritis of the right hip. 2. Entitlement to service connection for a disability manifested by floaters in the eyes. 3. Entitlement to service connection for tinnitus. 4. Entitlement to service connection for fungal infection of the toenails. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C.M. Flatley, Counsel INTRODUCTION The veteran had active service from November 1969 to December 1989. Initially, the veteran's appeal included the issue of entitlement to service connection for ulcerative colitis and back pain. By a July 1992 rating decision, service connection for ulcerative colitis (in combination with the veteran's previously service- connected proctitis) and low back strain with traumatic arthritis was allowed. As the benefit sought on appeal has been allowed with respect to these issues, they are no longer for consideration by the Board of Veterans' Appeals (Board). In addition, the Board notes that the issue of service connection for "hip pain" was initially developed on appeal. The Board has reframed the issue for reasons which will become clear in the decision below. In this regard, it is also noted that although the issue was developed without specifically identifying which hip was at issue, the record clearly indicates that the veteran's complaints of "hip pain" were limited to the right hip; it was essentially confirmed at the veteran's personal hearing that his claim was referable to the right hip. Transcript (T.) at 8. The Board, therefore, will limit its consideration accordingly. Lastly, the Board points out that the issues of entitlement to service connection for a disability manifested by floaters in the eyes, tinnitus, and for fungal infection of the toenails will be addressed in the REMAND section at the conclusion of this decision. CONTENTIONS OF APPELLANT ON APPEAL The veteran essentially contends that service connection for a right hip disability is warranted. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is in favor of the claim of service connection for osteoarthritis of the right hip. FINDINGS OF FACT 1. All evidence necessary for an equitable disposition of the veteran's appeal has been obtained. 2. Service connection was in effect for chronic posterior cruciate ligament tear, anterior ligament tear, and Grade III chondromalacia of the right patella, femur, and tibia, rated at 20 percent from December 1989 through May 1990; and for Grade III right femur segmental mid-shaft fracture, rated at 10 percent from December 1989 and at 100 percent from April 1990 through May 1990 under 38 C.F.R. § 4.30 (1993). 3. Service connection is currently in effect for Grade III right femur segmental mid-shaft fracture, chronic posterior cruciate ligament tear, anterior ligament tear, and Grade III chondromalacia of the right patella, femur, and tibia, rated at 60 percent from June 1990. 4. The veteran complained of right hip pain in and subsequent to service; an etiologic relationship between the osteoarthritic changes in the right hip demonstrated shortly after separation from service and the veteran's service-connected Grade III right femur segmental mid-shaft fracture, chronic posterior cruciate ligament tear, anterior ligament tear, and Grade III chondromalacia of the right patella, femur, and tibia is established. CONCLUSION OF LAW Osteoarthritis of the right hip is proximately due to or the result of a service-connected disability. 38 U.S.C.A. § 5107 (West 1991); 38 C.F.R. § 3.310 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION Review of the record indicates that the veteran has submitted a well-grounded claim. 38 U.S.C.A. § 5107(a). The Department of Veterans Affairs (VA) therefore has a duty to assist the veteran in the development of facts pertinent to his claim. 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet.App. 78, 81-82 (1990). In this regard, we note that duplicates of the veteran's service medical records have been submitted, which extend from the veteran's entrance to his separation and that post-service VA and non-VA clinical data have been associated with his claims folder. Upon review of such material, the Board concludes that with respect to the right hip claim, the veteran has been adequately assisted in the development of his case and that the evidence currently of record provides an adequate basis upon which to address the merits of his claim. Osteoarthritis of the Right Hip The veteran's service medical records reflect intermittent complaints of hip pain subsequent to a fracture of the right femur in February 1987, which involved an open reduction and internal fixation and required extended convalescence and physical therapy. Continual follow-up treatment was indicated in service. In May 1987, muscle spasm from the right hip to the knee was noted. Loosening of the intramedullary rod screw and a moderately displaced comminuted mid-shaft femur, status-post open reduction and internal fixation, showing evidence of healing, was shown on a July 1987 x-ray study. In October and November 1987, complaints of a persistent dull ache in the right knee and hip and pain and tenderness of the right hip were recorded. In December 1987, the veteran's right hip pain had reportedly increased in cold weather. Complaints of right hip pain were also noted in January 1989. Post-service records include those associated with treatment at an Air Force Base facility, and reflect continued complaints of right hip pain on hospitalization in April 1990, at which time a history of rod fixation and a bone graft in 1987 associated with a right femur fracture was noted. On examination, a positive posterior drawer sign and pivot shift were found. The veteran was hospitalized and underwent revision of orthopedic hardware in the right femur, including removal of broken hardware; as noted above, he received a 100 percent evaluation under 38 C.F.R. § 4.30 as a result. A July 1990 outpatient entry reflects that right hip pain had resolved. An x-ray study revealed persistent non-union of the femur. The veteran also complained of right hip pain on VA examinations in December 1990 and January 1992; on the latter occasion, it was noted that since a right femur fracture in service, the veteran had experienced symptomatology involving the right hip and knee. Examination of the right lower extremity showed significant relaxation of the cruciate ligaments on the right; the knee could therefore be pulled forward and back. The head of the femur appeared to be able to rotate right and left with the hip flexed. An x-ray study revealed osteoarthritic changes of the right hip and knee. A report of a follow-up orthopedic evaluation in February 1992 reiterates the veteran's history of injury of the right femur and records his complaints of chronic pain and weakness in the right lower extremity and an abnormal gait due to the aforementioned fracture. He noted that the symptomatology caused right hip "difficulty." Normal range of motion of the right hip was found, with complaints of discomfort on all motion. The diagnoses included residuals of a fracture of the right femur, postoperative, with instability of the right knee. At his personal hearing in March 1992, the veteran testified that the private examination of the right hip showed bone spurs through the middle of the femur; it was clarified that his testimony was referable to the right hip. T. at 8. He stated that he occasionally experienced locking of the hip. T. at 10. VA regulations provide that service connection may be allowed for a disability which is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310 (a). In this instance, the record clearly establishes that the veteran sustained a significant injury to the right lower extremity in service which required extensive treatment, including revision of orthopedic hardware surgically placed at the time of the injury. The record also shows that complaints referable to the right hip and knee have been consistently made since shortly after the injury. The injury clearly resulted in appreciable impairment of the right lower extremity, as demonstrated by the veteran's complaints generally and by clinical findings, for example, regarding instability of the veteran's right knee and evidence of an abnormal gait as a result of right lower extremity impairment. The degree of disability currently associated with the veteran's right femur fracture is further illustrated by the 60 percent rating currently in effect, which represents fracture of the shaft or anatomical neck of the femur, with non-union, without loose motion, and with weight bearing preserved with the aid of a brace. 38 C.F.R. Part 4, § 4.71a, Diagnostic Code 5255 (1993). Although service medical records do not identify a right hip disability in and of itself, the Board is of the opinion that the veteran's right hip symptomatology and the radiographic finding of osteoarthritic changes in the right hip, cannot be dissociated from the veteran's service-connected Grade III right femur segmental mid-shaft fracture; chronic posterior cruciate ligament tear, anterior ligament tear, and Grade III chondromalacia of the right patella, femur, and tibia. The record indicates that the veteran's impairment of the right lower extremity, service- connected in various forms, is etiologically related to the veteran's right hip symptomatology and the consequent osteoarthritic changes currently identified. Accordingly, an allowance of service connection for osteoarthritis of the right hip on a secondary basis is in order. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.310. ORDER Entitlement to service connection for osteoarthritis of the right hip as secondary to a service-connected disability, is granted. REMAND As noted above, the VA has a duty to assist the veteran in the development of facts pertinent to his claim. 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet.App. at 81-82. Upon review of the record with respect to the issue of service connection for a disability manifested by floaters in the eyes, tinnitus, and for fungal infection of the toenails, the Board concludes that further development is indicated. The record indicates that the veteran complained of floaters in service, and although a recent VA ophthalmoscopic examination was conducted, further findings are indicated in light of the veteran's complaints. In addition, the veteran has asserted that he complained of tinnitus in service and that he has since complained of a fungal infection of the toes, but has not been examined therefor. The record indicates that service medical records on file are duplicates received from the veteran; an attempt to obtain potentially outstanding service medical records is indicated. Overall, in order to fully assist the veteran in the development of his case and extend to the veteran every equitable consideration, we conclude that additional development is warranted. This case is therefore REMANDED for the following: 1. The regional office (RO) should attempt to obtain any outstanding service medical records. Any records obtained should be associated with the veteran's claims folder. 2. After any necessary information and authorization are obtained from the veteran, duplicates of any post-service treatment, VA or private, inpatient or outpatient, associated with the disabilities at issue for which the veteran seeks service connection and which are not already of record, should be obtained by the RO and incorporated into the claims folder. 3. Special VA ophthalmoscopic and dermatologic examinations should be scheduled to determine the nature and etiology of any eye disability manifested by floaters and any fungal infection of the toes, respectively. The examinations should be conducted in accordance with the appropriate provisions of the VA's Physician's Guide for Disability Evaluation Examinations. All indicated studies should be conducted. The examination reports should include a full description of the veteran's symptoms, clinical findings, and associated functional impairment. All findings should be recorded in detail. The ophthalmologist should provide specific findings as to the presence of floaters and should offer an opinion as to the presence of any disability associated therewith. The dermatologist should comment upon the nature and etiology of the veteran's claimed fungal infection of the toes. Comprehensive reports, which represent consideration of the aforementioned, as well as the history of the veteran's disability, should be provided. The veteran's claims folder should be provided to the examiner for review prior to the examination. 4. The RO should then review the veteran's claim. All pertinent law, regulations, and United States Court of Veterans Appeals (Court) decisions should be considered. If the veteran's claim remains in a denied status, he and his representative should be provided with a supplemental statement of the case, which includes any additional pertinent law and regulations and a full discussion of action taken on the veteran's claim, consistent with the Court's instruction in Gilbert v. Derwinski, 1 Vet.App. 49 (1990). Reasonable response time should be allowed. The case should then be returned to the Board, if in order, after compliance with customary appellate procedures. No action is required of the veteran until he is so informed. The Board intimates no opinion as to the ultimate decision warranted in this case, pending completion of the requested development. WILLIAM J. REDDY 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. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals. With respect to the veteran's claim of service connection for a disability manifested by floaters in the eyes, tinnitus, and for fungal infection of the toenails, the Board notes that 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).