BVA9503024 DOCKET NO. 91-48 249 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for degenerative arthritis, cervical spine. 2. Entitlement to a compensable evaluation for service-connected shell fragment wound to left side of neck, with retained foreign body. 3. Entitlement to an increased rating for residuals of a gunshot wound to the left shoulder (minor), with retained foreign bodies, currently evaluated as 20 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. A. McDonald, Associate Counsel INTRODUCTION The veteran served on active duty from July 1967 to July 1969. This case was previously before the Board of Veterans' Appeals (hereinafter Board) in August 1994, at which time it was remanded to the Department of Veterans Affairs Regional Office in Louisville, Kentucky (hereinafter RO) for further development and for consideration of the intertwined issue of entitlement to an increased rating for residuals of a gunshot wound to the left shoulder (minor), with retained foreign bodies. REMAND The Department of Veterans Affairs (hereinafter VA) has a duty to assist the veteran in the development of facts pertinent to his claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.103(a) (1993). In the informal hearing presentation submitted to the Board in December 1994, the veteran's representative contended that the VA committed clear and unmistakable error in all rating decisions as they pertain to the injuries incurred by the veteran to the left upper extremity, left neck, and cervical spine. The United States Court of Veterans Appeals (hereinafter Court) has held that all issues "inextricably intertwined" with the issue certified for appeal, are to be identified and developed prior to appellate review. Harris v. Derwinski, 1 Vet.App. 180 (1991). The resolution as to whether the RO committed clear and unmistakable error with regard to previous ratings pertaining to the veteran's service-connected shoulder and neck would have direct bearing, and is therefore "intertwined" with the issues of increased ratings currently certified for appellate review. As the issue of clear and unmistakable error in all previous final rating decisions was not addressed by the RO, the case is remanded to the RO in accordance with the holding in Harris for development. Furthermore, the Court has held that "[w]here, as here, the record before the [Board] was clearly inadequate, remand [to the RO] is required." Littke v. Derwinski, 1 Vet.App. 90, 93 (1990). The Court has also held that the "fulfillment of the statutory duty to assist . . . includes the conduct of a thorough and contemporaneous medical examination . . . ." Green v. Derwinski, 1 Vet.App. 121, 124 (1991). This examination report should include "a medical opinion as to whether [the veteran's] current disabilities are in any way related to . . . those experienced in service." Witherspoon v. Derwinski, No. 89-153 (U.S. Vet. App. March 8, 1991) (per curiam). It is the Board's opinion that the medical evidence of record, as it applies to the veteran's claim of entitlement to service connection for degenerative arthritis of his cervical spine is inadequate for adjudication purposes. A medical opinion as to whether the veteran's diagnosed degenerative arthritis of the acromioclavicular joint and cervical spine are in any way related to the veteran's service-connected left shoulder and neck disorders would provide a more complete picture of the disabilities at issue on appeal. 38 C.F.R. §§ 3.326, 3.327 (1993). Therefore, this case is remanded to the RO for the following actions: 1. All VA and private medical records subsequent to August 1993, should be obtained and incorporated into the veteran's claims file. 2. The veteran should be afforded a VA orthopedic examination to determine the nature of a cervical spine and/or acromioclavicular joint disorder, if any. The examination should be performed in accordance with Chapters 1 and 2 of the VA's PHYSICIAN'S GUIDE FOR DISABILITY EVALUATION EXAMINATIONS. All pertinent symptomatology and findings should be reported in detail. Any indicated diagnostic tests or studies, to include x- rays, should be accomplished. The examiner is requested to express an opinion as to the etiology of any cervical spine and/or acromioclavicular joint disability and whether such disability has resulted from the veteran's service-connected left shoulder or neck disorders. All medical evidence in the claims file should be made available to the examiner prior to the examination for use in the study of this case. 3. The RO should adjudicate the issue of whether clear and unmistakable error was committed in all final rating decisions as they pertain to injuries incurred by the veteran to the left upper extremity, and the left neck. With regard to arthritis of the acromioclavicular joint, the RO should clarify whether such pathology is recognized as a component of the service connected left shoulder disability. If there is no basis for allowance of the claims thereafter properly on appeal, a supplemental statement of the case should be issued to the veteran and his representative. The supplemental statement of the case should include a summary of all pertinent evidence of record, along with the legal criteria governing the claims. After allowing sufficient opportunity for the veteran to respond, the case, including any additional evidence and/or issues, should then be returned to the Board for further appellate review. No action is required by the veteran until he receives further notice. JEFF MARTIN 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) (1993).