BVA9505278 DOCKET NO. 93-11 320 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an increased evaluation for residuals of a fracture to the left tibia and left fibula, currently evaluated as 30% disabling. 2. Whether new and material evidence has been submitted in order to reopen a claim for entitlement to service connection for degenerative arthritis of the left ankle. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Anthony D. Dokurno, Associate Counsel INTRODUCTION The veteran performed active service from June 1959 to December 1962. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which denied an increased evaluation for residuals of a fractured left tibia and left fibula, with arthritis, currently evaluated as 30% disabling. The RO also determined that new and material evidence sufficient to reopen the claim of entitlement to service connection for arthritis to the left ankle had not been submitted. In its January 1993 rating decision, the RO also granted a 10% service connected evaluation for a foot deformity incurred as a residual of the tibia-fibula disorder. REMAND Initially, the Board has found the veteran's claim for entitlement to an increased evaluation for residuals of a fracture to the left tibia and left fibula, currently evaluated as 30% disabling, to be well grounded, 38 U.S.C.A. § 5107 (West 1991), in that this claim is meritorious on its own or capable of substantiation. Murphy v. Derwinski, 1 Vet.App. 78 (1990). This finding is based on the veteran's assertion that the service- connected residuals of his in-service fracture of his left tibia and left fibula have increased in severity. Proscelle v. Derwinski, 2 Vet.App. 629 (1992). The veteran currently has a 30% rating evaluation under 38 C.F.R. Part 4 (1994), Diagnostic Code 5262. This Diagnostic Code encompasses impairments of the tibia and fibula characterized by the malunion of the bone, with marked knee or ankle disability. A 30% rating evaluation is applied if there is a malunion of the tibia or fibula, with marked knee or ankle disability. A 40% rating evaluation is for application if there is a nonunion of the tibia or fibula, with loose motion, requiring the use of a brace. A 40% rating evaluation is also provided for limitation of extension of the leg to 30 degrees. Diagnostic Code 5261. Moreover, where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (1994). In determining the proper evaluation, consideration must be afforded to all applicable provisions of Parts 3 and 4 of 38 C.F.R.. Schafrath v. Derwinski, 1 Vet.App. 589 (1991). During an August 1992 RO hearing, the veteran and his representative indicated that, though it was not specifically prescribed, the veteran had begun to wear a brace to support his left knee, which was occasionally giving way. The veteran testified that he believed that the knee weakness, a left foot condition, and a left ankle disability were all residuals of the in-service injury to his left tibia and fibula. At the hearing, the VA and his representative also submitted into the record a June 1992 memorandum from a VA physician, who indicated that the veteran had also undergone left knee surgery in 1965. Treatment records for that surgery are not of record. A review of the record also reveals that the most recent VA examination, in September 1991, did not include range of motion testing for the left knee or ankle, nor more significantly did the examiner record any findings as to the presence or absence of loose motion. The examiner did note mild edema in the left ankle. The Board is of the opinion that in view of the testimony presented at the hearing on appeal, further medical evaluation is required to ascertain whether the veteran experiences loose motion medically requiring the use of a brace. This opportunity will also be taken to secure the records of the veteran's 1965 surgery and tests of the veteran's current range of motion in the left ankle and knee. The VA has a duty to assist a veteran in the development of facts pertinent to his or her well-grounded claim. 38 U.S.C.A. § 5107(a). The duty to assist a veteran in obtaining and developing available facts and evidence to support a claim includes obtaining thorough VA examinations. Littke v. Derwinski, 1 Vet.App. 90 (1990). Accordingly, the VA's duty to assist the veteran in the development of facts pertinent to his claim mandates that this case must be REMANDED to the RO for the following actions: 1. The RO should request the veteran to provide a comprehensive statement regarding all private treatment for his left leg, knee, or ankle that he may have received since his release from active duty, including the records pertaining to his 1965 surgery. The RO should also request the veteran to supply the necessary signed authorizations for the release of this medical information and the RO should then secure copies of the records. 2. The RO should directly contact the VA outpatient clinic at Gainesville, Florida to obtain copies of the veteran's treatment records for the period from June 13, 1991 to the present. 3. Following the above, the RO should schedule the veteran for VA examination by an orthopedist to determine the nature and severity of the residuals of the fracture of the left tibia-fibula, to include the left knee and ankle. All testing deemed necessary, to include X-rays, should be performed. The orthopedist is requested to include range of motion studies of the left knee and left ankle and specific findings as to the presence or absence of loose motion of the knee as well as whether the use of brace is medically indicated. In conjunction with a review of the claims folder, it is requested that the examiner render an opinion regarding whether any left knee and left ankle abnormalities found during the examination are a manifestation of, or were caused by, the left tibia-fibula fracture. 4. Thereafter, the RO should review the issue of entitlement to an increased evaluation for residuals of the fracture of the left tibia-fibula. This review is to include consideration of whether separate disability rating evaluation percentages are warranted for the left ankle and left knee disabilities under 38 C.F.R. Parts 3 and 4, including § 4.7 and Diagnostic Codes 5261 and 5262. The RO should then issue a supplemental statement of the case if the benefits sought on appeal are not granted to the veteran's satisfaction. The veteran should be provided an opportunity to respond. Thereafter, the case should be returned to the Board for further consideration, if otherwise warranted. By this REMAND, the Board intimates no opinion regarding any final outcome. The veteran is not required to perform any action until he is notified by the RO. RICHARD B. FRANK 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).