BVA9502560 DOCKET NO. 92-01 471 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUES 1. Entitlement to an increased rating for the residuals of a stress fracture of the left heel calcaneus, currently rated 10 percent disabling. 2. Entitlement to an increased (compensable) rating for the residuals of a 1989 laceration of the left ankle. REPRESENTATION Appellant represented by: J.F. Atkinson, Jr., Attorney ATTORNEY FOR THE BOARD D.P. Dean, Counsel INTRODUCTION The appellant served on active duty in the U.S. Air Force for 20 days in July and August 1985. He then served in the Army National Guard of Arkansas, serving on active duty for training from January to June 1989. This matter came before the Board of Veterans' Appeals (Board) on appeal from rating determinations by the North Little Rock, Arkansas, Regional Office (RO) of the Department of Veterans Affairs (VA). In an appellate decision dated in January 1993, the Board denied the appeal with respect to four issues, including the two issues listed on the cover page of this decision. Subsequently, the case was appealed to the United States Court of Veterans Appeals (Court). In November 1994, both parties filed a Joint Motion for Remand, which the Court granted in an order dated in December 1994. In accordance with the Joint Motion for Remand, the Court affirmed the Board's January 1993 decision with respect to two issues; vacated that decision with respect to the two issues listed on the cover page of this decision; and then remanded the case for further action. The Court did not retain jurisdiction over the matter. Copies of the Court's order and of the Joint Motion for Remand have been placed in the claims file. REMAND In their Joint Motion for Remand, both parties agreed that, during the course of the present appeal, the appellant had raised an additional issue claiming entitlement to service connection for reflex sympathetic dystrophy (RSD) involving the left ankle which was inextricably intertwined with the certified issue of entitlement to an increased rating for the residuals of a stress fracture of the left calcaneus, requiring that both issues be adjudicated at the same time. See Harris v. Derwinski, 1 Vet.App. 180, 183 (1991). In addition, the parties agreed that both the Board and the RO had erred in describing the service-connected scar of the left ankle as being on the lateral malleolus. It is noted on further study that the injury in March 1989 during active service was to the medial surface of the left ankle. The scar on the lateral malleolus dates from a postservice mass excision operation in July 1990 which was many years after service. Accordingly, the parties agreed that the issue of a proper rating for the residuals of a left ankle laceration be remanded for corrective action and another rating examination. The latest official VA medical examination of the appellant for compensation purposes occurred in March 1991. There is considerable doubt that this examination is current enough to fulfill VA's obligation to accord the appellant a "contemporaneous" examination. Caffrey v. Brown, 6 Vet.App. 377 (1994). Finally, service medical records pertaining to the appellant's first period of active service in the Air Force have never been obtained and incorporated into the claims file. Although these records most likely are not relevant to the issues presently on appeal, an attempt should be made to locate and obtain them since a claims file has been established for the appellant. Accordingly, this appeal is remanded for the following further actions: 1. The RO should contact the service department and attempt to locate and obtain the service medical records pertaining to the appellant's service in the Air Force in July and August 1985. If obtained, these should be incorporated into the claims file. 2. The RO should review all of the relevant evidence in order to determine if the rating action of January 1990 reflects clear and unmistakable error in describing the service-connected residuals of a laceration of the left ankle as involving the left lateral malleolus, rather than the left medial ankle. 3. The RO should also obtain and incorporate into the claims file copies of any medical records not already contained in the claims file which pertain to the treatment of RSD, residuals of the March 1989 left ankle laceration, or the residuals of a February 1989 stress fracture of the left calcaneus since 1989. 4. The RO should next schedule the appellant for an examination by a specialist in neurology (board certified, if available) in order to confirm or refute the proposed diagnosis of RSD in the left ankle. If the diagnosis is confirmed, the examiner should also be directed to express an opinion, based upon a review of the material in the claims file, as to the etiology of that disability. The claims file and assembled data should be made available to the examiner. 5. At the same time, the RO should schedule the appellant for an examination by an orthopedic specialist (board certified, if available) in order to determine the current nature and severity of the service-connected residuals of a stress fracture of the left calcaneus and of a laceration of the left ankle. The examiner should take special care to examine and report on the scar on the correct side of the left ankle, as decided by the RO previously. The claims file and assembled data should be made available to the examiner. 6. The RO should next review all the relevant evidence and readjudicate the claims seeking increased ratings for the service-connected residuals of a stress fracture of the left calcaneus and of a laceration of the left ankle. At the same time, after undertaking any additional development felt to be necessary, the RO should also address the additional issue of entitlement to service connection for RSD. If any of these determinations are unfavorable to the appellant, he should be informed in writing of the reasons and bases for the RO's unfavorable determination, and he should be informed of his appellate rights with respect to the new issue. If the benefits sought on appeal are not granted to the appellant's satisfaction, or if a timely Notice of Disagreement is received with respect to any other matter, including the additional issue raised by the appellant, a Supplemental Statement of the Case addressing all issues in appellate status should be prepared and furnished to the appellant and his representative. They should be provided an opportunity in which to respond. Thereafter, in accordance with proper appellate procedures, the case should be returned to the Board for further appellate review, if otherwise in order. All issues properly in appellate status should be returned to the Board at the same time. In taking this action, the Board implies no conclusion, either legal or factual, as to any final outcome warranted. No action is required of the appellant until he is otherwise notified by the RO. SAMUEL W. WARNER 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).