judge_norm: MARK F HALSEY

condition: shoulder

benefit: reduction

benefit: smc

text:
Citation Nr: 0328000
Decision Date: 10/17/03    Archive Date: 10/28/03

DOCKET NO.  90-26 433	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Anchorage,
Alaska

THE ISSUES

1.  Entitlement to service connection for a left shoulder
disability.

2.  Whether a reduction in the rating for left hip disability
as a residual of Legg-Perthes disease from 80 percent to 50
percent effective from September 30, 1986, was proper.

3.  Entitlement to special monthly compensation on account of
the loss of use of the left foot in accordance with the
provisions of 38 U.S.C.A. � 1114(k) (West 2002).

4.  Entitlement to special monthly compensation based on
being permanently housebound under the provisions of
38 U.S.C.A. � 1114(s) (West 2002).

5.  Entitlement to an increased evaluation for left hip
disability as a residual of Legg-Perthes disease, currently
evaluated as 50 percent disabling.

6.  Entitlement to an increased evaluation for cervical spine
disability, currently evaluated as 40 percent disabling.

7.  Entitlement to an increased evaluation for left knee
arthritis, currently evaluated as 30 percent disabling.

8.  Entitlement to an increased evaluation for right knee
arthritis, currently evaluated as 20 percent disabling.

REPRESENTATION

Appellant represented by:	Joseph L. Kashi, Attorney at
Law

WITNESSES AT HEARING ON APPEAL

The veteran and his spouse

ATTORNEY FOR THE BOARD

Michael Holincheck, Counsel

INTRODUCTION

The veteran served on active duty from February 1964 to
September 1974 when he was placed on the temporary disability
retired list.  He was permanently retired by reason of
physical disability in June 1978.  The veteran had additional
service in the Air National Guard from January 1956 to August
1957.

This matter comes before the Board of Veterans' Appeals
(Board) on appeal from rating decisions by the Department of
Veterans Affairs (VA) Outpatient Clinic and Regional Office
(RO) in Anchorage, Alaska.  The case was remanded in August
2002.  It is again before the Board for appellate review.

The veteran's case was remanded in August 2002 in order to
afford the veteran an opportunity to testify at a hearing
before a Veterans Law Judge (VLJ) from the Board.  The
veteran was scheduled for a hearing on February 3, 2003, and
was notified of the hearing date by way of a letter dated in
December 2002.  The veteran was sent a reminder notice of the
hearing date in January 2003.

Associated with the claims file is a January 2003 letter from
the veteran's attorney to the Board requesting that the
veteran's hearing be relocated from the RO in Anchorage to
the Kenai, Alaska area.  The attorney included a letter from
the veteran's private physician.  The physician had advised
the veteran that it was not recommended that he travel beyond
the Kenai area due to medical reasons.

Associated with the claims file is a Report of Contact
between the veteran's attorney and the VLJ designated to
preside at the veteran's February 2003 hearing.  The Report
of Contact noted that the attorney was informed that the
hearing could not be held in the veteran's "home area."
The Report of Contact also showed that the veteran wanted a
decision review officer (DRO)/RO hearing in lieu of a Board
hearing.  The question of a local hearing will be further
discussed in the REMAND portion of this decision.

Subsequent to the cancellation of the February 2003 hearing,
the veteran's attorney submitted a March 2003 request for an
extension of time to submit evidence to the Board.  The
extension was granted by way of a letter dated April 15,
2003.  The veteran was given until June 1, 2003, to submit
additional evidence, information, or argument to the Board.

The veteran, through his attorney, submitted a significant
amount of additional evidence by way of paper records as well
as evidence contained on a compact disc (CD).  The latter
material was printed out and associated with the claims file
in paper form.

Finally, the Board notes that the veteran's attorney
requested in April 2003, that the Board order any necessary
medical treatment or surgery be done in Anchorage, Alaska, by
a mutually agreeable orthopedic surgeon in private practice
rather than have the veteran travel to Seattle, Washington.
The basis for the request was that the veteran's private
physician was of the opinion that air travel to Seattle could
have life-threatening consequences for the veteran.  The
Board does not have jurisdiction to rule on issues regarding
the location for providing medical treatment, the type/kind
of medical treatment to be provided, or the individual
designated to provide the treatment.  See 38 C.F.R.
� 20.101(b) (2002).  Accordingly, the Board will not address
the representative's request in the decision below.

The first three issues listed on the title page of this
document will be addressed in the decision below.  The
remaining issues will be addressed in the remand that follows
the decision.

FINDINGS OF FACT

1.  The veteran is service-connected for bilateral hip
disabilities.

2.  The veteran has suffered multiple falls that have been
attributed to problems associated with his service-connected
bilateral hip disabilities.

3.  There is a reasonable basis to attribute the veteran's
current left shoulder disability--adhesive capsulitis,
residuals of a rotator cuff tear and bursitis/tendonitis, to
falls associated with the veteran's service-connected
bilateral hip disabilities.

4.  The residuals of the veteran's left total hip replacement
are such that he has effectively loss the use of the left
foot.  The veteran is essentially unable to move his left leg
without assistance from his hands; he has severe problems
balancing on the left leg, and his propulsion is extremely
limited.  There is no effective function remaining, other
than that which would be equally well served by an amputation
stump at the site of election below the knee, with use of a
suitable prosthetic appliance.

5.  The veteran's service-connected residuals of a left total
hip replacement had been evaluated at 80 percent for more
than five years when the RO reduced the evaluation to
50 percent in March 1987.

6.  The rating reduction was based on the results of two VA
examinations conducted in December 1986 and January 1987.
The evidence on file at the time of the March 1987 reduction
decision did not warrant the conclusion that there was
sustained improvement of the left hip disability that was
likely to be maintained under the ordinary conditions of
life.

CONCLUSIONS OF LAW

1.  A left shoulder disability, including adhesive
capsulitis, residuals of a rotator cuff tear and
bursitis/tendonitis, is proximately due to service-connected
bilateral hip disabilities.  38 U.S.C.A. ��  1110, 1131 (West
2002); 38 C.F.R. � 3.310 (2003).

2.  The criteria for entitlement to special monthly
compensation based on the loss or loss of use of the left
foot has been met.  38 U.S.C.A. �� 1114(k), 5107 (West 2002);
38 C.F.R. �� 3.350, 4.63 (2003).

3.  The March 1987 reduction of an 80 percent rating for
service-connected residuals of a left total hip replacement
was not proper.  38 U.S.C.A. �� 1155, 5107 (West 2002);
38 C.F.R. �� 3.344, 4.1-4.14, 4.71a, Diagnostic Codes 5054,
5255.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Service Connection

A DA Form 261 of record contains a breakdown of the veteran's
active and inactive service.  It showed National Guard
service beginning in January 1956 and ending in August 1957.
The veteran had two periods of active duty for training
(ADT), one for 19 days in June/July 1956 and another for 15
days in June 1957.  The veteran enlisted in the active Army
in February 1964.

Service medical records (SMRs) for the veteran reflect no
evidence of a left shoulder injury or problem.  A November
1972 neurology consult noted that the veteran was struck in
the back of the neck in May 1972.  The consult reported right
arm symptoms; no left arm problems were identified.
Sensation was intact as were reflexes.  The assessment was no
evidence of a neurological deficit.  A November 1972 annual
physical examination reported that the veteran had been seen
for right arm pain and numbness with no mention of any left
shoulder problems.  A January 1974 orthopedic clinic entry
noted that the veteran had bilateral hip and back pain for
over 6 months.  It was also noted that his left arm twitched.
An April 1974 clinical notation reported on the veteran's
continued problems with both hips, left worse than right.

Additional evaluation of the veteran's bilateral hip
condition at Walter Reed Army Medical Center and Brooke Army
Medical Center did not report any incidental findings
regarding the left shoulder.

Evidence of record clearly documents that the veteran was
involved in a high-speed motor vehicle accident (MVA) while
stationed in Germany in 1965.  However, the SMRs do not
report any residual left shoulder problems as a result of the
accident.

The veteran did not list a left shoulder condition at the
time he submitted his original claim for VA disability
compensation benefits in September 1974.

At a July 1986 VA examination, the veteran reported that he
had suffered a fall two year earlier and had been knocked
unconscious.  The veteran attributed his fall to his left leg
giving way.

The veteran was also afforded a VA rheumatology examination
in January 1987 to evaluate complaints of pain in multiple
joints, to include the shoulders.  The veteran related that
he had fallen earlier in the day and landed on his left
shoulder.

Records from Peninsula Physical Therapy were associated with
the claims file in January 1987.  A January 1987 report noted
that the veteran complained of continuous pain.  The
therapist said the veteran was unable to use crutches or
canes to stabilize his gait due to pain and weakness in his
shoulder girdle and upper extremities.  She also said that
the veteran had fallen several times.  The veteran's muscle
tone was described as low in the trunk and extremities and
muscle bulk as small and atrophic in the trunk and
extremities.  The therapist reported that, in addition to the
veteran's bilateral hip condition, he also had degenerative
osteoarthritis in both shoulders, entire spine and knees.

The veteran was denied service connection for left shoulder
arthritis/tendonitis in March 1987.  The veteran submitted a
statement in May 1987 wherein he said that he no longer had
full use of his left arm and referred to a fall he had
suffered.

The veteran submitted medical records in September 1988.
Included in the records was a letter from G. B. von Wichman,
M.D., dated in November 1986.  He said that the veteran was
diagnosed with pericapsulitis of the left shoulder and had
received injections of Xylocaine and Cortisone.

The veteran and his wife testified at a hearing at the RO in
October 1988.  The veteran testified regarding the incident
in service when he was struck in the upper back and shoulders
by an A-frame.  The veteran said that he no longer used
crutches to get around because he no longer felt safe using
them.  The veteran related that his back, shoulders, knees,
arms, neck, and hips would all start hurting in the late
afternoon.

The veteran included a statement from G. F. Garnett. M. D.,
that was dated in October 1988.  Dr. Garnett said that the
veteran's leg muscles had atrophied to the point where he
would fall and was unable to support himself with crutches
due to severe limb girdle disease of the shoulders.

Additional records from Dr. von Wichman were received in
January 1989.  The records related to outpatient visits from
December 1986 to December 1988.  A December 1986 entry noted
that the veteran complained of pain in both shoulders and
wanted to have them injected.  The left shoulder was injected
at that time.  In January 1988 the veteran was seen for a
complaint of left shoulder pain and stiffness.  The veteran
related an incident when he slipped and fell on the ice a
year earlier and landed on his shoulder.  Dr von Wichman said
that would explain the atrophy of the muscles, limited motion
and recurrent pain.  He said this could only be explained by
a rotator cuff lesion.  Finally, an entry dated in December
1988 noted that the veteran had a terrible time in the winter
because he had no control over his legs.  Also, with his left
shoulder developing dystrophic changes, the veteran felt very
handicapped.

Additional medical records noted that the veteran had
suffered multiple falls over the years.  He also expressed
continued complaints related to his left shoulder.

The veteran was noted to have a frozen left shoulder as
reported at a VA examination in December 1993.  The veteran
was also noted to have decreased range of motion of his neck
in all directions tested.  The examiner stated that there was
a definite decrease in the left deltoid mass.  There was also
a definite decrease in the triceps and biceps, described as
pretty much 3.5 to 4/5 in the left upper extremity.

In January 1994 a VA orthopedic examiner provided diagnoses
of:  cervical disc degeneration at multiple levels with
possible radiculopathy involving either the right, left or
both upper extremities on that basis; and, adhesive
capsulitis of the left shoulder, etiology uncertain.  In
regard to an etiology of the left shoulder diagnosis, the
examiner said that the veteran appeared to have adhesive
capsulitis and probably some muscle wasting.  He was not sure
if this was due to an intrinsic shoulder problem to begin
with or whether it was related to the veteran's degenerative
disc disease (DDD) in the cervical area.  He noted that the
shoulder x-rays were normal but that it was conceivable that
the veteran had a tendonitis or bursitis that resulted in
decreased shoulder use and adhesive capsulitis.  The veteran
also could have developed adhesive capsulitis secondary to
not moving the extremity due to pain that was related to the
neck condition.  The examiner stated that he could not
differentiate those based on information available to him.
He said there was also a question of whether the veteran had
upper extremity radiculopathy related to his neck problem.

The Board notes that the a report from R. A. Sparks, III,
M.D., from February 1995, stands in contrast to the above
findings.  Dr. Sparks was an Army physician that was involved
in the veteran's medical board during service.  The veteran
had traveled to Alabama for an examination by the doctor.
Dr. Sparks said that the veteran's upper extremities were
well muscled.  He opined that this was probably due to the
veteran's use of crutches.  Dr. Sparks said that the
veteran's biceps, triceps, and deltoid muscles were all well
developed and demarcated.  He said that the range of motion
for the left shoulder revealed some mild crepitus that was
compatible with chronic bursitis and/or impingement syndrome.

The veteran submitted treatment records from G. Araoz-Fraser
(Fraser), M. D., in July 2000.  The records covered a period
from October 1996 to May 2000.  Dr. Fraser noted that the
veteran had decreased, mild muscular tone of the left
shoulder.  Dr. Fraser wrote a letter to VA in January 1997
requesting authorization for care of the veteran.  He said
that the veteran suffered from loss of use of his left
shoulder and left hip.  This loss of use was considered
secondary to an injury sustained in service.  Dr. Fraser said
that the veteran's loss of use of the shoulder was caused by
loss of left shoulder muscle and nerves.  He added that the
veteran had experienced frequent falls as a result of his
situation.

VA records added to the file in 2003 included a copy of a
November 1996 orthopedic evaluation.  The examiner said that
the veteran's left shoulder condition was most likely a
rotator cuff tear of the left shoulder with adhesion and
limited range of motion of the left shoulder.  This
assessment was repeated in a June 1998 clinical entry.

Additional medical records also documented an ongoing problem
with the left shoulder as well documenting a number of falls
for the veteran.

The law provides that service connection may be granted for
disability resulting from disease or injury incurred in or
aggravated by service.  38 U.S.C.A. �� 1110, 1131 (West
2002); 38 C.F.R. �� 3.303, 3.304 (2003).  In addition,
certain chronic diseases, including arthritis, may be
presumed to have been incurred during service if the disorder
becomes manifest to a compensable degree within one year of
separation from active duty.  38 U.S.C.A. �� 1101, 1112, 1113
(West 2002); 38 C.F.R. �� 3.307, 3.309 (2003).  Further, a
disability is service connected if it is proximately due to
or the result of a service-connected disease or injury.  38
C.F.R. � 3.310(a) (2003).  Moreover, when aggravation of a
nonservice-connected condition is proximately due to or the
result of a service-connected condition, such veteran shall
be compensated for the degree of disability over and above
the degree of disability existing prior to the aggravation.
Allen v. Brown, 7 Vet. App. 439, 448 (1995).

Generally, service connection requires (1) medical evidence
of a current disability, (2) medical evidence, or in certain
circumstances lay testimony, of in-service incurrence or
aggravation of an injury or disease, and (3) medical evidence
of a nexus between the current disability and the in-service
disease or injury.  Pond v. West, 12 Vet. App. 341, 346
(1999); accord Caluza v. Brown, 7 Vet. App. 498 (1995).

As noted above, despite the veteran's involvement in a severe
MVA in 1965 and being struck in the back with an A-frame in
1972, there is no evidence of a left shoulder condition in
service.  Moreover, there is no evidence to show a left
shoulder condition, to include arthritis, in the several
years immediately after service.  Thus, service connection
for arthritis of the left shoulder, on a presumptive basis,
is not in order.

The medical evidence of record clearly documents a pattern of
falls for the veteran, beginning in at least 1986.  The
several physicians of record have attributed the veteran's
falls to leg weakness and instability due to the veteran's
service-connected bilateral hip disabilities.  Further, the
veteran was noted to have poor balance and ability to walk on
slippery surfaces, again related to problems associated with
his service-connected bilateral hip disabilities.

There is no doubt that the veteran suffers from a current
left shoulder disability.  The left shoulder has been shown
to have a limited range of motion attributable to diagnoses
of adhesive capsulitis, residuals of a rotator cuff tear or
bursitis/tendonitis.  The question is whether the condition
can be linked to any service-connected disability.

The Board finds that there is credible evidence to show that
the veteran's left shoulder disorder is directly related to
falls sustained as a result of problems associated with the
veteran's service-connected bilateral hip disabilities.  As
reported, the evidence of record documents multiple falls
that the several physicians have related to the veteran's
problems with his hips.  Dr. von Wichman directly attributed
the veteran's left shoulder problems to residuals as a result
of a fall on the ice.  Other physicians have opined that a
diagnosis of adhesive capsulitis and a rotator cuff injury
are consistent with residuals from the falls.

Although the cause of the veteran's left shoulder problems is
not clearly stated in the record, the Board nevertheless
finds that by resolving reasonable doubt in favor of the
veteran, a grant of service connection for left shoulder
disability is warranted as secondary to service-connected
disabilities.  See Allen, supra; 38 C.F.R. � 3.310.

II.  Reduction of Left Hip Disability Rating

Service medical records for the veteran reflect that he was
given a medical board for his bilateral hip complaints.  The
problem was linked to Legg-Perthes disease, a typically
congenital disease.  A January 1974 orthopedic clinic entry
noted that the veteran had bilateral hip and back pain for
over 6 months.  An April 1974 clinical notation reported on
the veteran's continued problems with both hips, left worse
than right.  A treatment option was for a full left hip
replacement.

A January 1974 consultation at Walter Reed Army Medical
Center reported x-ray evidence of bilateral coxa magnum with
short necks bilaterally, worse on the left.  The assessment
was that the hip was probably not disabling at the time but
would probably need replacement in the future.

The veteran was evaluated at Brooke Army Medical Center from
May to June 1974.  The only pertinent physical examination
findings were limited to the veteran's lower extremities,
hips, and lumbar spine.  At that time neurological evaluation
of the lower extremities, including motor strength, deep
tendon reflexes and straight leg raising (SLR) testing were
all normal.  The veteran used crutches, with a four-point
gait to get around.  The diagnoses were Legg-Perthes disease
(old) with residual bony deformity, of both femoral heads,
resultant bilateral disabling hip pain, and severe bilateral
hip limitation of motion.

The veteran underwent medical board processing in July 1974.
The veteran was noted to have bilateral hip pain with a
normal neurological examination.  The medical board noted
that the Walter Reed consultation said that the veteran
needed total hip replacements.  He was told the same thing
from Brooke Army Medical Center but the veteran was
determined to be too young for the surgery.  The present
condition portion of the summary said that the veteran had
daily severe pain in his hips, and to a lesser degree in his
knees.  He was unable to run, and could not participate in
sports that involved so little activity as bowling.  He had a
difficult time walking and this was getting progressively
worse.  The veteran was said to be able to walk about two
blocks before the pain became severe.  Prolonged sitting also
caused pain and the veteran had to continually change
positions.  The pain interfered with his ability to sleep.

A physical evaluation board (PEB) recommended that the
veteran be placed on the TDRL with a diagnosis of
osteoarthritis of both hips and both knees causing painful
motion.  The diagnostic code used was 5003.  The rating was
30 percent.  The veteran was then placed on the temporary
disability retired list (TDRL) in September 1974.

The veteran submitted his original claim for disability
compensation benefits to VA in September 1974.  He sought
service connection for osteoarthritis of both hips and knees,
as these were the disabilities identified by the PEB.

The RO granted service connection for osteoarthritis of both
hips and knees in November 1974.  The veteran was assigned a
100 percent prestabilization rating, under 38 C.F.R. � 4.28,
effective from September 30, 1974.  The rating decision did
not provide for any division of the hips and knees as
separate and distinct disabilities.  Rather they were rated
as a single disability.  The rating decision also indicated
that the prestabilization rating was assigned pending a
physical examination to be scheduled prior to the expiration
of one year.

The veteran was afforded a VA examination in May 1975.  The
report said that the veteran had marked discomfort at extreme
ranges of motion for the left hip.  The veteran had flexion
to 85 degrees with a 15-degree flexion contracture.
Abduction was measured to 25 degrees.  X-rays of the
hips/pelvis were interpreted to show bilateral coxa magna
senilis.  Coxa magna is defined as an enlargement and often
deformation of the femoral head; usually referring to a
sequela of Legg-Calve-Perthes disease or osteoarthritis.
STEDMAN'S MEDICAL DICTIONARY 406 (26th Ed., 1995).  The
examiner said that the veteran currently had very painful
motion of the hips and was unable to walk without limping.
The examiner recommended hip replacement surgery because of
the severe changes in both of the veteran's hips.  He said
that this would relieve the pain, give the veteran more
stable hips, and allow for a freer range of motion.

The veteran underwent left total hip arthroplasty in May
1975.  A September 1975 letter from Dr. von Wichman noted
that the veteran had discontinued use of his crutches two
weeks earlier but still had a limp and problems with his left
hip.  Dr. von Wichman said it was too early for a meaningful
evaluation.

The RO issued a rating decision in October 1975 in order to
replace the prestabilization rating.  The veteran's
disability was recharacterized as postoperative residuals of
left hip total arthroplasty and osteoarthritis of the right
hip.  The veteran's disability rating was separated into an
80 percent rating for the left hip and a 30 percent rating
for the right hip.  The combined ratings, along with a
bilateral factor, kept the overall disability rating at the
100 percent level.  The effective date of the change was from
October 1, 1975.  The veteran's bilateral hip disabilities
were rated under Diagnostic Code 5255.

A statement from the veteran's surgeon, D. R. Nolan, M.D.,
dated in April 1976, reported that the veteran still had some
left hip pain but that all of his old pain was gone.  Dr.
Nolan said that the veteran's right hip pain was almost
crippling, whether at rest or with activity.  He anticipated
the veteran having the right hip replaced in the near future.

Physical therapy records from Peninsula General Hospital
reflect that the veteran received physical therapy for both
hips for the period from June 1976 to August 1976.  The
veteran's therapist said that the veteran did express relief
from the treatments but this varied with each treatment.  She
noted that the veteran continued to complain of much pain in
the right hip and extreme sensitivity of the left hip to
cutaneous pressure.

A March 1977 note from Dr. von Wichman reported that the
veteran continued to have pain over the greater trochanter on
the left and required periodic cortisone shots.  He said that
the veteran had flexion to 90 degrees but had a 50 percent
limitation in external-internal rotation and abduction.  The
veteran was noted to walk with the assistance of two
crutches.  He also said that the veteran was greatly disabled
for any functional activities.  He said that he did not
believe that the veteran's disability would improve.

Dr. von Wichman again evaluated the veteran in March 1978.
The veteran was noted to continue to use Canadian crutches.
He complained of pain in both hips, slightly more on the
right than the left.  The veteran was noted to have limited
external-internal rotation as well as abduction and flexion
on the right side, although no specific measurements were
provided.  Dr. von Wichman reported that even passive
movement, especially at the extremes caused discomfort.  The
veteran's movements of the left hip were said to be limited
to the same degree as on the right.  The veteran was noted to
be an electrical engineer but felt totally disabled, as he
was not able to move or sit in front of a computer.  He
planned to make a career change.  Dr. von Wichman concluded
by saying that the veteran was quite incapacitated since
walking, standing, and sometimes even prolonged sitting
caused discomfort in his hips.

The RO received notice from the Army of the veteran's
permanent retirement for physical disability in June 1978.
The notification letter said that the veteran was permanently
retired as of June 30, 1978.  Specific information as to the
actual disability was not included in the letter; however,
the veteran's final disability rating was 80 percent (an
increase from the original 30 percent when he was placed on
the TDRL in 1974).

Another evaluation was received from Dr. von Wichman in May
1979.  The veteran had been evaluated in April 1979.  The
veteran was noted to be doing relatively well considering his
severe incapacitation from the flattened right head of the
femur and his left hip arthroplasty.  The veteran's right hip
was noted to not work well and was limited in motion.  Dr.
von Wichman said that this put a tremendous strain on the
left hip.  He said that the veteran appeared to have to spend
twice the amount of energy on regular walking than the normal
person because of his bilateral deformity.

Confirmed rating decisions continued the veteran's combined
100 percent schedular rating in 1977, 1978, and 1979.  The
ratings were based on the evaluations from Dr. von Wichman.

The veteran was evaluated by Dr. von Wichman in May 1980.
The veteran was noted to continue using crutches.  He
complained of intermittent problems that alternated between
his hips.  The veteran continued to have a great deal of
intermittent pain on the left side.  He attempted to relieve
the pain by using his right side.  Dr. von Wichman said that
this was a tremendous problem that could not be solved since
the veteran's disease was bilateral.  He said that the
veteran's actions to relieve the pain caused pressure on both
the right and left hips.  He said that no drastic approach to
treatment was recommended and that a conservative approach
would be continued.  He also recommended that the veteran be
reevaluated on the basis of necessity rather than
arbitrarily.  He felt that evaluating the veteran on a
routine basis was sort of awkward and probably not medically
necessary.

The veteran's combined 100 percent rating was continued by
way of a rating decision dated in July 1981.  The veteran was
notified of the rating action that same month.  The RO also
informed the veteran that, due to the chronic nature of his
disability, he would not be scheduled for another review
examination for five years.

The veteran was next afforded a VA examination in July 1986.
The veteran reported that his hip function had deteriorated
since his last examination.  The veteran said that he could
walk approximately 1,000 feet at a slow pace on level ground.
He said that he experienced frequent popping in his right
hip.  He also said that he had very little muscle control
over his left hip.  The veteran related that he suffered a
fall two years earlier where he was rendered unconscious
after striking his jaw.  He said that his hip gave way and
caused the fall.  He reported that most of his pain was
reasonably controlled through a combination of three
different medications.  He took the medications in varying
degrees depending on the severity of his pain.  The veteran
related that if he exerted himself unduly he would have to
resort to bedrest and sitting in a recliner for two to three
days at a time.  This usually happened approximately twice a
month; however it had had happened as often as 8-10 times per
month.  He said that his right hip was starting to feel like
the left hip just prior to the 1975 surgery.  He was very
reluctant to consider surgery for the right hip because of
the continued problems he experienced with his left hip.  The
examiner said that x-rays of the hips showed the presence of
a total hip prosthesis on the left and changes in the right
hip consistent with old aseptic necrosis as well as increased
deterioration of the acetabulum when compared to x-rays from
1975.  The diagnoses were left hip replacement, status post
aseptic necrosis of the hip and right hip arthritis.  The
examiner said that the major problem with the left hip was a
limitation of activity because of loss of muscle control.
She said that there was no prospect for any improvement in
his situation this far after surgery.  She said his activity
level would be limited to sedentary and light walking.

The examiner provided an addendum to her report in September
1986.  She reported a range of motion for the right hip from
the earlier examination.

The RO issued a rating decision in September 1986 that
proposed to reduce the veteran's disability ratings for his
hips.  The rating incorrectly listed the veteran's left hip
rating as 70 percent (but no reduction) and proposed to
reduce the right hip from 30 percent to 20 percent.  In
addition, the rating decision established separate
noncompensable disability ratings for each knee due to
arthritis/limitation of flexion, rating both as
noncompensable.  The result of the proposed rating would be a
reduction from the veteran's prior combined 100 percent
evaluation to 80 percent.

The veteran disagreed with the proposed reduction in
September 1986.  The veteran said that the examination report
did not adequately assess his level of hip pain or note that
he would be able to walk any distance only if it was under
ideal conditions and he had taken medications and was able to
take a break.  Overall the veteran strongly disputed that his
bilateral hip disabilities had shown any level of
improvement.

The veteran was scheduled for a hearing in November 1986.
However, it was decided at the hearing to cancel any further
proceedings and afford the veteran a comprehensive VA
examination.

The RO issued a rating decision in December 1986.  The rating
decision correctly listed the veteran's left hip disability
as 80 percent and said that it was "restoring" the prior 30
percent rating for the right hip pending receipt of a VA
examination report.  Bilateral noncompensable ratings for
arthritis of the knees remained in effect.

The veteran was afforded a VA orthopedic examination in
December 1986.  The examiner stated that his examination was
limited to the hips.  The examiner said that the veteran had
used crutches in the past but said that the veteran had not
used any ambulatory aid since 1976.  He said the veteran said
that it was because pain in both upper extremities precluded
his use of crutches or canes.  The veteran's estimated
standing time was given as 15 minutes and estimated walking
distance as 200 feet.  The veteran's medications were listed
as Vicodin, Nalfon, Ponstel and Norgesic Forte.  The examiner
reported that the veteran walked with a slow gait but did not
use crutches or a cane at the examination.  The examiner
reported that the veteran had a range of motion of extension
to 0 degrees and flexion to 90 degrees for the left hip.
Abduction of the left hip was recorded as 35 degrees and
right hip as 20 degrees.  The examiner reviewed x-rays from
1975, 1981 and October 1986.  He said that they demonstrated
a left total hip replacement with wiring around the
trochanter on the left side.  The diagnostic impressions were
status post left total hip replacement with continued chronic
hip complaints and incongruity of the right hip joint,
etiology uncertain.

The veteran was also afforded a VA rheumatology examination
in January 1987 to evaluate complaints of pain in the hips,
knees, cervical and thoracic spine and both shoulders.  The
veteran reported continuous aching in the area of the left
hip.  The veteran related that he had fallen earlier in the
day and landed on his left shoulder.  The examiner said the
veteran was limited to sitting to about 30 minutes and
walking for 100 yards without rest.  The examiner also said
that the veteran used crutches and got around slowly.  The
veteran was observed to move slowly in the examining room
without assistance but was also observed using crutches in
the hallway and relying on physical assistance from his wife.
The examiner said that the veteran's range of motion
measurements were contained in a separate report from a
physical therapist.  The examiner reported that there were a
number of trigger points including the lateral aspects of the
hips.  Response to light touch was normal over the distal
extremities.  Deep tendon reflexes were symmetric and present
bilaterally.  Manual muscle testing could not be accurately
performed because of pain and restricted motion of the
extremities.  The examiner said that x-rays of the hips
demonstrated a total left hip replacement and an abnormal
configuration of the right femoral head which was incongruent
relative to the architecture of the right acetabular portion
of the ilium bone.

The examiner provided a pertinent impression of status post
left hip replacement.  The examiner said that he believed
that the veteran sustained developmental or acquired
anomalies of the hip joints prior to military service with
subsequent related occurrence of osteoarthritis that involved
first the left hip and subsequently the right hip.

Records from Peninsula Physical Therapy were associated with
the claims file in January 1987.  A January 1987 report noted
that the veteran complained of continuous pain.  His gait was
described as stiff and guarded.  The physical therapist said
that the veteran manifested a right lateral list of his trunk
and stepped heavier on his right lower extremity during gait.
The veteran's gait was described as slow and laborious and
unsteady.  She said the veteran was unable to use crutches or
canes to stabilize his gait due to pain and weakness in his
shoulder girdle and upper extremities.  She also said that
the veteran had fallen several times.  The veteran's muscle
tone was described as low in the trunk and extremities and
muscle bulk was described as small and atrophic in the trunk
and extremities.  The therapist reported that, in addition to
the veteran's bilateral hip condition, he also had
degenerative osteoarthritis in both shoulders, entire spine
and knees.  She said that the veteran was in constant pain
and movement and position change was severely painful.  Even
at rest the veteran was in pain.  She said that sleep and
rest were interrupted and intermittent due to a lack of
finding a position comfortable to him.  Active range of
motion for the left hip measured flexion to 85 degrees and
extension to -15 degrees.  Abduction was listed as 5 degrees.
Passive range of motion for the left hip was 95 degrees of
flexion, -10 degrees of extension and 17 degrees of
abduction.  The therapist reported that the veteran was in
constant pain throughout the examination.  She said that she
had worked on and off with the veteran for the past 10 years
and that physical therapy had provided only mild temporary
pain relief.  She said that his hip range of motion and
strength were inhibited by pain and that this interfered with
his normal activities of adult daily living (ADL).  She also
said that he required assistance with some ADL but was able
to do others independently but with great difficulty.  She
opined that the veteran's condition had worsened a great deal
since she first saw him in 1976.  She felt that his prognosis
for improvement was poor and that the degenerative nature of
his illness would only worsen.

A letter from Senator Stevens of Alaska was received in
January 1987.  The letter transmitted a separate letter and
medical evidence submitted by the veteran.  One item was a
letter from D. O. Pitts, D.D.S. and dated in October 1986.
Dr. Pitts said that he had treated the veteran over the past
several months for problems with his teeth associated with
severe clenching and bruxism.  He said that the veteran
associated his clenching and bruxism with extreme pain
radiating from his hip area.  Dr. Pitts stated that he could
attest to the pain because of the difficulty he had in
arranging the veteran in a dental chair for treatment.

Another item was a letter from Dr. Garnett, also dated in
October 1986.  Dr. Garnett said that he had followed the
veteran since August 1986 due to significant pain from
degenerative arthritis of the shoulders and knees.  He said
that x-rays also demonstrated marked degenerative changes
throughout his spine and hips and that the veteran was kept
pain free only through the use of Talacen.  He said that the
veteran reported significant enough pain that he even had to
have reconstructive dental surgery done due to clenching his
teeth from the pain.  He said that, based on August 1986 x-
rays, the veteran's overall prognosis was very poor.  Dr.
Garnett said that, because of the significant degenerative
changes throughout the veteran's spine and hips, he
anticipated a course of unrelenting pain that would become
gradually less controllable with time.  He said that he had
cautioned the veteran about the use of chronic narcotic
analgesics over a long term because of his anticipated
permanent course of pain from the slowly progressive
degeneration of his joints.

The RO issued a comprehensive rating decision in March 1987.
In regard to the veteran's left hip the decision reduced his
rating from 80 percent to 50 percent and referred to
Diagnostic Codes 5054-5255 as the pertinent codes for the
disability.  The veteran's rating for right hip arthritis was
reduced from 30 percent to 20 percent.  In addition, service
connection was established for lumbar arthritis (40 percent),
cervical arthritis (30 percent), thoracic arthritis (10
percent), lip and nasal scars (10 percent), and nasal
fracture without breathing obstruction (noncompensable).
Further, the veteran's left knee arthritis rating was
increased to 30 percent and his right knee rating increased
to 20 percent.  The veteran's overall combined disability
rating remained at the 100 percent level.  The only evidence
reviewed by the RO was the December 1986 and January 1987 VA
examination reports.  There was no reference to the physical
therapy report or the letters from Dr. Pitts or Dr. Garnett.

The issue identified throughout the pendency of this appeal
has been entitlement to an increased evaluation for the
veteran's left hip.  Although this issue has been developed
and will be addressed in the remand portion of this decision,
the related issue of the veteran's entitlement to a
restoration of the 80 percent evaluation, effective from the
date of reduction to 50 percent in September 1986 must first
be addressed.

A total hip replacement with prosthesis at the head of the
femur or acetabulum will receive a 100 percent evaluation for
one year following implantation of prosthesis.  Thereafter, a
90 percent evaluation is warranted when there is painful
motion or weakness such as to require the use of crutches.  A
70 percent evaluation is warranted for markedly severe
residual weakness, pain or limitation of motion.  A
50 percent evaluation is warranted for moderately severe
residuals of weakness, pain, or limitation of motion.  The
minimum rating is 30 percent.  38 C.F.R. � 4.71a, Diagnostic
Code 5054.  The same rating criteria were in effect from
1986.

In addition, disabilities involving the hip and thigh will be
rated at 90 percent where there is extremely unfavorable
ankylosis of the hip, the foot not reaching the ground and
crutches necessitated.  A 70 percent rating would be granted
for intermediate ankylosis and a 60 percent rating for
favorable ankylosis in flexion at an angle between 20 and 40
degrees and alight adduction or abduction.  See 38 C.F.R.
� 4.71a, Diagnostic Code 5250.  Also a disability involving a
flail joint of the hip warrants an 80 percent rating under
Diagnostic Code 5254.  Finally, an impairment of the femur
involving a fracture of the shaft or anatomical neck with
nonunion, loose motion (spiral or oblique fracture) is to be
rated as 80 percent disabling.  38 C.F.R. � 4.71a, Diagnostic
Code 5255.  Where there is nonunion without loose motion,
weightbearing preserved with aid of brace, a 60 percent
rating is in order.  Where there is a fracture of the
surgical neck with a false a joint, a 60 percent rating is
appropriate.  Id.

As noted above, the veteran was originally granted a 100
percent prestabilization rating in November 1974 in
accordance with 38 C.F.R. � 4.28.  The disability rating
referred to osteoarthritis of both hips and knees.

The veteran underwent a left total hip replacement in May
1975.  The RO issued a rating decision in October 1975 to
replace the prestabilization rating.  The veteran's
disabilities were listed as postoperative residuals of a left
hip total arthroplasty and arthritis of the right hip.  The
veteran was assigned an 80 percent rating for the left hip
under Diagnostic Code 5003-5255 and a 30 percent rating for
the right hip under the same diagnostic codes.  The combined
disability rating, with the addition of a bilateral factor,
was 100 percent.  The veteran was also assigned a 100 percent
rating for one year to be reevaluated one year after surgery.
(The Board notes that Diagnostic Code 5003 is used to
evaluate disabilities relating to degenerative arthritis
under 38 C.F.R. � 4.71a).

The veteran was evaluated a number of times over the next
several years with rating decisions being issued in February
1977, March 1977, March 1978, June 1979, and July 1981 that
confirmed, and continued, his 80 percent disability rating
for the left hip as well as his combined rating of 100
percent.  The veteran was informed in July 1981 that he would
not be reexamined for another five years because of the
chronic nature of his disabilities.

In light of the above evidence it is clear that the veteran's
80 percent rating for his service-connected left hip
disability was clearly in effect for more than five years.
Therefore, the provisions of 38 C.F.R. � 3.344 are for
application.

The provisions of 38 C.F.R. � 3.344(a) require a review of
the entire record of examinations and the medical-industrial
history to ascertain whether the recent examination was full
and complete.  Examinations less full and complete than those
on which payments were authorized or continued will not be
used as a basis of reduction.  Ratings will not be reduced on
any one examination, except where all the evidence of record
clearly warrants the conclusion that sustained improvement
has been demonstrated, and it is reasonably certain that any
material improvement will be maintained under the ordinary
conditions of life.  38 C.F.R. � 3.344.  The United States
Court of Appeals for Veterans Claims (Court) has held that
the circumstances on which rating reductions can occur are
specifically limited, and carefully circumscribed by
regulations promulgated by VA.  Dofflemyer v. Derwinski,
2 Vet. App. 277, 280 (1992).

In Brown v. Brown, 5 Vet. App. 413, 419 (1993), the Court
interpreted the provisions of 38 C.F.R. � 4.13 to require
that in any rating reduction case, it must be ascertained,
based upon a review of the entire recorded history of the
disability, whether the evidence reflects an actual change in
the disability and whether the examination reports reflecting
such change are based upon thorough examinations.  Moreover,
38 C.F.R. �� 4.2 and 4.10 provide that, in any rating
reduction case, not only must it be determined that
improvement in the disability has occurred, but also that
improvement reflects an improvement in the veteran's ability
to function under the ordinary conditions of life and work.
In Brown, the Court also held that where a rating had been in
effect for over five years, based upon a review of the entire
record of examinations, and not merely the most recent
examination, a specific finding of "material improvement" in
the condition must be made to sustain a reduction action.
Brown, 5 Vet. App. at 419-20.

The Board finds that the evidence in March 1987 did not
demonstrate that the veteran's left hip replacement residuals
underwent material or sustained improvement during the period
of his long-standing 80 percent evaluation.  The Board also
finds that the RO's rating reduction was based, in large
part, upon the results of the December 1986 and January 1987
VA examinations with neither a review nor objective
discussion of the entire clinical-industrial history.
Moreover, these examinations did not include any opinion or
discussion with respect to any improvement in the veteran's
left hip disability.  This is noteworthy in light of the
multiple statements of record regarding the severity of the
veteran's left hip disability to include the many comments
that there was no improvement expected.  This very statement
was repeated by the VA examiner in July 1986 when she said
that there was no prospect for improvement that far after
surgery.  The December 1986 and January 1987 examinations did
not demonstrate "sustained improvement" of the veteran's left
hip that was likely to be maintained under the ordinary
conditions of life.

Accordingly, the Board finds that the reduction in the rating
assigned the veteran's service-connected left total hip
replacement from 80 to 50 percent effective from September
1986 was not proper.  The 80 percent evaluation should be
restored as though the reduction had not occurred.

III.  Loss of Use of the Left Foot

The veteran contends that the residuals from his left hip
surgery have effectively resulted in the loss of use of his
left foot.  The veteran maintains that he is unable to
maintain his balance, or walk because of weakness and severe
pain in the left hip.

The veteran submitted additional medical records in September
1988.  Included in the records was a letter from Dr. von
Wichman dated in November 1986.  Dr. von Wichman said that it
was his medical opinion that the veteran was severely
incapacitated, especially on account of his hips and that
they would progressively give him more problems.

The veteran and his wife testified at a hearing at the RO in
October 1988.  The veteran said that he no longer used
crutches to get around because he no longer felt safe using
them.  The veteran said that on a majority of nights he would
experience severe pain, from several areas of his body not
just his hips that would cause him to clamp down with his
jaws.  He said he would work his teeth to the point of
causing bleeding in his mouth.  He described his difficulties
in getting out of bed and how easy it was for him to fall
because of his legs giving way.  He said that he did not get
out of the house often but would drive his wife to work.  He
described other activities that he would engage in while at
home.  He said that he tried to stay active.  The veteran
said that some days he could walk 5 feet on a level surface,
some days 50 feet and other days up to 100 feet.  He could go
up steps but said that it was a major problem to go down
steps.

The veteran included a statement from Dr. Garnett that was
dated in October 1988.  Dr. Garnett said that the veteran had
been totally disabled for many years due to severe
degeneration in his hips.  He said that the veteran's left
hip had gotten progressively weaker and lost considerable
support in the last few years.  He said that it appeared that
the veteran's prosthesis was probably loosening to the point
where it was becoming totally useless for him for a left leg
support.  Dr. Garnett added that the veteran's leg muscles
had atrophied to the point where he would fall and was unable
to support himself with crutches due to severe limb girdle
disease of the shoulders.  Dr. Garnett further stated that
the veteran had ". . . reached the point where he had
significant loss of use of his left leg.  He has less
functional use of his left leg than if he was to have an
amputation and a prosthesis."  He also said that the veteran
had become unstable in balance and propulsion with the left
leg.  This was further exacerbated by the severe degenerative
arthritis of the veteran's right leg, which had caused
significant atrophy in that leg.  Finally, Dr. Garnett said
that the veteran had fallen many times and did not have the
muscle control to keep from falling.  It was noted that the
veteran was becoming progressively more limited in his
capabilities of moving.

Additional records from Dr. von Wichman were received in
January 1989.  An entry dated in December 1988 noted that the
veteran had a terrible time in the winter because he had no
control over his legs.  Dr. von Wichman noted that the
veteran said that he had trouble navigating on a normal floor
and that his left leg would frequently give way on him.

The veteran was afforded a VA Aid and Attendance examination
in November 1993.  The examiner included a copy of his
examination report and a transmittal letter to VA, both of
which were dated in November 1993.  In the examination report
the examiner noted that the veteran related his problems to
his hips and knees.  The veteran said that his problem was
that his left leg would give way and cause him to fall.  His
right leg had also started to give way as well and he would
suffer falls as a result.  The veteran told the examiner that
he sometimes would fall down and be unable to get up.  The
veteran did leave his home unaccompanied on occasion.  He
said that this might be once a year.  He also told the
examiner that he walked with a cane at home but did not have
a cane at the examination.  The veteran said that he had to
use his left arm to put pressure on his left thigh as he
walked.

On physical examination the veteran was noted to sit with a
normal posture.  He was observed to lean toward his right and
press his right hand on the anterior thigh.  The examiner
said that there was no evidence of asymmetry of the lower
extremities, although they were not measured specifically.
The examiner said that it was very difficult to assess the
veteran's true functional abilities.  He noted that the
veteran had significant pain behavior.  The examiner remarked
that the veteran might benefit from a very objective
assessment from someone such as a physical therapist that was
trained in measuring functional capacity.  The examiner said
that it was clear from the veteran's interview and history
that he had a strong belief in his need for assistance.  The
examiner concluded by saying that, based on this brief
meeting and assessment, he was not able to truly determine
the veteran's functional capacity.

The veteran was afforded a VA neurological examination in
December 1993.  The veteran appeared at the examination with
a cane.  The examiner noted that the veteran complained that
his knees ached frequently because of uneven wear secondary
to trying to favor his left leg and left hip.  The veteran
said that he frequently used his right leg to support himself
and that his left leg would give out.  The veteran also
frequently used a cane or crutches to get around.  The
examiner said that there was decreased left quadriceps and
hamstring strength but this seemed mostly secondary to
response of pain.  He said that it was quite difficult to get
the veteran to fully contract his leg because of a
significant amount of pain.  The examiner said that the
veteran was quite unstable because of a diffuse weakness of
the hip musculature.  Tandem and reverse tandem gait could
not be done because of the hip instability.

The veteran was afforded a VA orthopedic examination in
January 1994.  The examiner noted that the veteran estimated
that he could sit for 2 hours, stand for 5-7 minutes, and
walk 100 feet without a cane and 200 feet with a cane.  The
veteran was noted to walk with a marked limp, antalgic type,
which favored the left lower extremity.  The veteran said
that he was unable to toe or heel walk on the left side but
could do this on the right side.  The veteran could do a one-
quarter squat or deep knee bend and recover but did this with
the left knee extended.  A measurement of the veteran's thigh
circumference was equal for both thighs.  X-rays of the left
hip showed a cemented acetabulum with superior lateral
lucency around the cement.  There was also apparent
protrusion position of the acetabulum.  There was a cemented
femoral component which seemed solid without lucency and the
trochanter was wired.  The examiner's impression was status
post left total hip replacement with possible loosening of
the acetabular component.

The veteran submitted additional evidence in February 1996.
Included was a chart entry from Dr. Anderson, dated in
December 1993.  The veteran had pain in both hips.  The left
hip was noted to feel like it was grating and the right hip
would pop.  Dr. Anderson said that he had watched the veteran
function in public for the last year and said that he had
difficulty moving except on level ground and then only at a
slow pace.  Dr. Anderson said he had seen the veteran nearly
fall on a number of occasions.  He said that the veteran had
difficulty in using crutches or a cane for support due to
weakness in his shoulder.  Dr. Anderson noted that the
veteran was capable of driving a car but was virtually
incapable of any emergency action or handling problems by
himself and desired to have his wife with him when he
traveled.  He said that this was a convenience that was fully
warranted by the veteran's physical condition.

The veteran submitted additional evidence to include a number
of x-ray reports regarding his left hip.  A number of the
reports indicated that there appeared to be loosening of the
veteran's prosthesis and that there was an acetabular
protrusio.  Clinical records from Dr. Fraser, dated in March
1999, noted complaints of severe left hip pain.  Dr. Fraser
noted that the veteran said that he had fallen at home the
previous December and continued to experience severe left hip
pain.  The veteran said that he had fallen three times in the
past year.  Dr. Fraser noted that the left leg was shorter
than the right and that the veteran leaned to the left.  He
said that the veteran was able to flex his leg but had a pop
when the leg was flexed to about 80 degrees.  He said that
the leg could be flexed more than the 80 degrees.  The
veteran had extension to 90 degrees.  The veteran could not
rotate his hip secondary to severe pain.

The veteran also submitted a letter he received from S. S.
Tower, M.D., dated in May 1999.  Dr. Tower said that he had
reviewed x-rays of the veteran's left hip.  He said that the
x-rays showed that the socket was very loose and that it was
probably prudent to have the hip re-done within the next six
months.  He advised the veteran that it was prudent for him
to use his walker and avoid putting any more pressure on the
left foot than absolutely necessary.

The veteran also included clinical records, and several
letters, from Dr. Fraser for the period from October 1996 to
May 2000.  An entry dated in January 1997 noted that the
veteran had to move his left leg with his hands in order to
move the leg.  The doctor noted that the difficulty moving
the leg was due to atrophy of the muscles.  Dr. Fraser wrote
a letter to VA in January 1997 requesting authorization for
care of the veteran.  He said that the veteran suffered from
loss of use of his left shoulder and left hip.  He noted that
the veteran's left hip prosthesis had broken loose, deepening
its position and rotating in the acetabular bone area.  He
said that the veteran had real difficulty using his left leg
and walked with a cane.  The veteran was seen in July 1999
for complaints of severe left leg pain.  The veteran had
fallen on the previous Thursday.  Dr. Fraser noted that the
veteran complained of having difficulty in standing up from a
chair or from changing positions and was not able to put any
weight on the left leg.  An entry dated in October 1999
reported that the veteran had fallen on his right hip and
developed a hematoma.  He noted that the veteran was walking
with two crutches and had a lot of difficulty moving.  He
said that the veteran appeared to be in constant pain.  Dr.
Fraser noted that he advised the veteran to have surgery done
before he fell and had a serious problem with perforation of
the acetabulum.  He said the veteran was encouraged to have
the preparation done for replacement of the left hip as soon
as possible.

Associated with the claims file are copies of VA records for
the period from November 1996 to February 2003.  The veteran
was noted to use a wheelchair to get around and to not have
muscular control of his left leg.  A November 2002 clinical
entry noted that the veteran complained of pain of 9 on a
scale of 1-10.  He complained of pain and weakness in his
left leg and left arm.  He reported very little activity
outside of his house other than going to the doctor, drives
and haircuts.  The examiner reported marked atrophy of the
left hamstring and left quad.  The examiner said that there
was a marked decrease in the range of motion for the left hip
with flexion to 20 degrees.  X-rays of the hips and pelvis
were done in February 2003.  The x-rays were interpreted to
show that the veteran's left hip prosthesis was superiorly
rotated.  There was some lucency surrounding the acetabular
prosthesis that suggested loosening.  There also appeared to
be superior and lateral subluxation of the femoral prosthesis
relative to the acetabular prosthesis and superior
displacement of the proximal femur, which appeared to abut
bony portions of the acetabulum.  The radiologist said that
the findings had worsened since the previous examination of
"March 2003".

Additional medical records reflect that the veteran continued
to have problems with his left hip to include severe pain,
weakness and difficulty in using the leg.  The veteran was
advised by Dr. Fraser not to travel any distance because of
the danger posed by the loosened prosthesis in the left hip.

Special monthly compensation is payable if the veteran, as
the result of service-connected disability, has suffered the
anatomical loss or loss of use of a foot.  Loss of use of a
foot will be found to exist when no effective function
remains, such as the properties of balance and propulsion,
other than that which would be equally well served by an
amputation stump with use of a suitable prosthetic device.
For example, complete paralysis of the external popliteal
nerve and consequent foot drop, accompanied by characteristic
organic changes including trophic and circulatory
disturbances, will be taken as loss of use of the foot.
38 U.S.C.A. � 1114 (k) (West 2002); 38 C.F.R. �� 3.350(a),
4.63 (2003).

In reviewing the evidence of record the Board finds that the
veteran's medical condition is such as to satisfy the
criteria for the award of special monthly compensation for
the loss of use of his left foot.  The evidence shows a
continuous, and inexorable, decline in the condition of the
veteran's left hip from the time of his surgery in May 1975.
Initially, the veteran enjoyed some success in regaining use
of the left leg; however, the success was not long lived.
The veteran began to experience increased pain and loss of
function over the years, to include a loss of balance and
propulsion as noted by both VA and private doctors.

A number of falls is clearly documented in the treatment
records.  Dr. Anderson related in December 1993 that he had
observed the veteran in public for the previous year and
noted that the veteran had difficulty moving except on level
ground and then only at a slow pace.  He also said that he
had personally seen the veteran nearly fall on a number of
occasions.  Further, the veteran had difficulty in using
crutches or a cane due to problems with his upper
extremities.  Dr. Fraser reported in January 1997 that the
veteran had to move his left leg with his hands in order to
move the leg.  He ascribed the difficulty in moving the leg
to atrophy of the muscles.  Dr. Tower advised in 1999 that
the veteran use a walker to avoid putting any unnecessary
pressure on the left foot.  These items are highlights of a
significant body of evidence that support those findings.

In light of these findings, the Board concludes that the
weight of the evidence supports the claim for special monthly
compensation based on the loss of use of the left foot.  In
other words, no effective function remains other than that
which would be equally well served by an amputation stump
with use of a suitable prosthetic device.

ORDER

Service connection for a left shoulder disability (adhesive
capsulitis, residuals of a rotator cuff tear and
bursitis/tendonitis) is granted.

Subject to the law and regulations governing the payment of
monetary benefits, restoration of an 80 percent evaluation
for residuals of a left total hip replacement from September
30, 1986, is granted.

Entitlement to special monthly compensation because of loss
of use of the left foot is granted, subject to the
regulations governing the payment of monetary awards.

REMAND

The veteran's case is a complicated one that encompasses
several disparate issues and extends over a number of years.
Because of the complexity of the case and the passage of
time, circumstances have necessitated a remand in the past to
comply with the dictates of then-existing law and
regulations, and changes thereto.  Sometimes a remand has
been required to afford the veteran due process in light of
his own requests.  Such is the situation at this time.  A
remand is required to comply with changes in the law and to
afford the veteran due process.

At the outset, the Board notes that the issue of a hearing
for the veteran has been addressed several times since his
original hearing in October 1988.  At various times the
veteran was scheduled for Travel Board hearings in Portland,
Oregon, Seattle, Washington, and Anchorage, Alaska.  However,
the veteran has not reported for any of the scheduled
hearings for a number of reasons.  The most recently
scheduled hearing, a Board hearing, was scheduled to be held
at the RO in Anchorage, Alaska, in February 2003.  The
veteran submitted evidence that he would not attend the
hearing because he was advised by his doctor not to travel
any significant distance as it could be harmful to the
veteran's health.

The veteran's attorney informed the assigned VLJ that the
veteran no longer wanted a Board hearing but desired a DRO/RO
hearing, preferably in the Kenai, Alaska, area.  The Board
contacted the RO, via e-mail, in April 2003 to inquire if it
were possible to accommodate the veteran's request for a
hearing outside of the Anchorage area.  The RO responded that
they could not provide a hearing outside of Anchorage.

Accordingly, given the arrangement made by the VLJ who was
assigned to hear the veteran's case in February 2003, the RO
must again contact the veteran and his attorney to ascertain
if the veteran still desires to attend a hearing at the
Anchorage RO before a DRO.  The veteran and his attorney are
advised that, unless circumstances change, the RO (and the
Board on a travel basis) can only hold hearings at the RO in
Anchorage.  If the veteran still desires to be afforded a
hearing it will have to be at the RO.

The Board notes that the August 2002 Board remand was limited
to the sole issue of scheduling the veteran for a Travel
Board hearing.  The previous remand occurred in August 2000
when the case was returned to the RO in order to obtain VA
examinations and outstanding evidence.

Subsequent to the August 2000 remand, the Veterans Claims
Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096,
(codified as amended at 38 U.S.C.A. �� 5100, 5102, 5103,
5103A, 5106, 5107, 5126 (West 2002)), was enacted in November
2000.  VA has also issued final regulations to implement
these statutory changes.  See Duty to Assist, 66 Fed. Reg.
45,620-32. (Aug. 29, 2001) (codified as amended at 38 C.F.R.
�� 3.102, 3.156(a), 3.159 and 3.326(a)).  Except for the
amendment to 38 C.F.R. � 3.156(a), the second sentence of 38
C.F.R. � 3.159(c), and 38 C.F.R. � 3.159(c)(4)(iii), which
are not applicable in this case, the changes "merely
implement the VCAA and do not provide any rights other than
those provided by the VCAA."  See 66 Fed. Reg. at 45,629.

The VCAA, and its implementing regulations, require that VA
provide specific notice to claimants regarding information
needed to complete an application for benefits as well as
specific notice regarding information or evidence required to
substantiate a claim.  See Quartuccio v. Principi, 16 Vet.
App. 183 (2002) (addressing the duties imposed by 38 U.S.C. �
5103(a) and 38 C.F.R. � 3.159 to provide adequate notice).
VA also has a duty to assist claimants in the development of
their claims.  The Court has strictly interpreted the
requirements to provide the required notice and the duty to
assist in the development of a claim.  Accordingly, the
veteran must be informed of the evidence necessary to
substantiate his claims for the benefits sought on appeal.

The Board notes that the RO wrote to the veteran on January
17, 2002.  The letter was to provide notice to the veteran of
his rights in the VA claims process.  The letter notified the
veteran of elements he needed to satisfy to establish service
connection, entitlement to SMC, or entitlement to increased
ratings for the issues on appeal.  The letter also informed
the veteran that he had until February 17, 2002, to submit
the necessary evidence.  The letter did not tell the veteran
that he had up to one year to submit any additional evidence
or information in support of his claim.  38 U.S.C.A.
� 5103(b).

In May 2003, the United States Court of Appeals for the
Federal Circuit, in Disabled Am. Veterans v. Sec'y of
Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003) (DAV), held
that 38 C.F.R. � 19.9(a)(2)(ii) (allowing the Board "to
provide the notice required by 38 U.S.C. [�] 5103(a)" and
providing for "not less than 30 days to respond to the
notice") was invalid because it was contrary to
38 U.S.C. � 5103(b), which allows a claimant one year to
submit evidence.  The practical result of the DAV decision is
that it prohibits the Board from providing notice of the VCAA
to claimants in the first instance.

In a decision promulgated on September 22, 2003, Paralyzed
Veterans of Am. v. Sec'y of Veterans Affairs, No. 02-7007
(Fed. Cir. Sept. 22, 2003), the Federal Circuit invalidated
the 30-day response period contained in 38 C.F.R. �
3.159(b)(1) as inconsistent with 38 U.S.C.� 5103(b)(1).  The
Federal Circuit found that the 30-day period provided in �
3.159(b)(1) to respond to a VCAA duty to notify letter is
misleading and detrimental to claimants whose claims are
prematurely denied short of the statutory one-year period
provided for response.  Therefore, since this case is being
remanded for additional development and to cure a procedural
defect, the RO must take this opportunity to inform the
veteran that notwithstanding the information previously
provided, a full year is allowed to respond to a VCAA notice
to submit additional information or evidence.  38 U.S.C.A.
� 5103.

The veteran's cervical spine disability has been evaluated
under Diagnostic Code 5293 relating to disabilities involving
intervertebral disc syndrome.  See 38 C.F.R. � 4.71a (2003).
The regulations pertaining to rating intervertebral disc
syndrome disabilities were amended in August 2002 and again
in August 2003.  See 67 Fed. Reg. 54,345-54,349 (Aug. 22,
2002); 68 Fed. Reg. 51,454-51,458 (Aug. 27, 2003).  As such,
the veteran's cervical spine disability must be reevaluated
in light of the amended regulations.

In regard to the veteran's service-connected bilateral knee
disabilities, the Board notes that the RO has rated them
under Diagnostic Codes 5003-5257 pertaining to disabilities
involving degenerative arthritis (Diagnostic Code 5003) and
disabilities involving instability of the knee (Diagnostic
Code 5257).  38 C.F.R. � 4.71a.

In a precedent opinion by VA General Counsel, it was noted
that separate ratings may be assigned in cases where service-
connected knee disability includes both limitation of motion
and instability, provided of course, that the degree of
disability is compensable under each set of criteria.
VAOPGCPREC 23-97.  The basis for this opinion was that the
applicable rating criteria "suggest that those codes apply
either to different disabilities or to different
manifestations of the same disability. . ."  Id.

The veteran's bilateral knee disabilities must be reevaluated
and the appropriate diagnostic code(s) should be used to
reflect the actual status of the veteran's current
disabilities.  The Board notes that the assignment of a
particular diagnostic code to evaluate a disability is
"completely dependent on the facts of a particular case."
See Butts v. Brown, 5 Vet. App. 532, 538 (1993).  One
diagnostic code may be more appropriate than another based on
such factors as an individual's relevant medical history, the
diagnosis and demonstrated symptomatology.  Any change in a
diagnostic code by a VA adjudicator must be specifically
explained.  See Pernorio v. Derwinski, 2 Vet. App. 625, 629
(1992).

The issue of an increased rating for the veteran's service-
connected left hip disability must also be reassessed in
light of the restoration of the 80 percent disability rating.

Because of the passage of time, it has been a number of years
since the veteran was afforded a VA compensation and pension
(C&P) examination to assess the current level of his several
service-connected disabilities.  The Board notes that the
issues of scheduling examinations, location for the
examinations, and whether or not x-rays should be part of the
examinations have resulted in disagreements in the past, to
include the veteran not reporting for an examination
requested in response to remands from the Board.  The Board
is not unsympathetic to the veteran's concerns both in regard
to being subjected to more examinations and being able to
have the examinations near his home because of the status of
his left hip.  However, unless the veteran can provide
private records that are suitable for use in lieu of a C&P
examination or there are VA treatment records that could
serve the same purpose, it appears that new examinations will
be necessary in order to afford the veteran the assistance he
is entitled to and to provide current information regarding
his disabilities.  The veteran is free to decline to report
for any examination; however, he must be made aware that if
he chooses to not report for an examination, without good
cause, any original claim may be decided based on the
evidence of record and any claim for an increase must be
denied.  38 C.F.R. � 3.655 (2003).

The last supplemental statement of the case was issued in
February 2000.  Since that time a substantial amount of
evidence has been submitted or developed in the case.  This
includes a VHS tape submitted by the veteran in February 2002
as well as a significant amount of evidence submitted by the
veteran since February 2003.  The VHS tape was noted on the
VA Form 8 when the veteran's case was certified on appeal to
the Board in February 2003; however, the contents of the tape
have apparently not been addressed by the RO.  A supplemental
statement of the case must be issued that takes into
consideration all of the evidence added since February 2000,
to include a discussion of the contents of the VHS tape.  See
38 C.F.R. � 19.31 (2002).

Finally, the veteran's rating for osteoarthritis of the right
hip was also reduced at the time of the March 1987 rating
decision.  The veteran wrote to the VA Chief of Staff in May
1987.  In his letter, the veteran expressed his disagreement
with the reductions of his service-connected bilateral hip
disabilities.  He also argued for an increased rating for
both disabilities.  The veteran's letter was forwarded to the
RO in July 1987.

The RO wrote separate letters to the veteran and his attorney
in August 1987.  The letters advised that the RO was unable
to determine if there was any valid notice of disagreement on
file.  The attorney was requested to provide a statement
detailing any specific disagreement or claim that should be
processed.

Additional correspondence from the veteran dated in August
1987 is of record.  The items of correspondence contained
several detailed submissions from the veteran wherein he
expressed his displeasure and disagreement with VA's actions
concerning his disability status.  The veteran continued to
object to the reduction of his disability ratings for his
service-connected hip disabilities.

A review of the claims file shows that the issue involving an
increased rating for the left hip disability was carried
forward.  The right hip disability evaluation was not.  This
was noted at the time of the Board remand in August 2000.

The Board finds that the veteran has submitted a timely
notice of disagreement with the reduction of his rating for
his service-connected right hip disability and has expressed
his belief that a higher rating for his right hip is
warranted rather than a reduction.  38 C.F.R. �� 20.201,
20.302 (2002).  He must therefore be issued a statement of
the case (SOC) in response to his timely notice of
disagreement.  See Manlincon v. West, 12 Vet. App. 328
(1999).  An SOC should be issued on this issue unless the
veteran's claim is resolved in some manner, such as by a
decision review officer (DRO) review or a complete grant of
benefits sought, or the claim is withdrawn.

The remanding of this issue must not be read as an acceptance
of jurisdiction over the same by the Board.  The Board may
only exercise jurisdiction over an issue after an appellant
has filed both a timely notice of disagreement to a rating
decision denying the benefit sought, and a timely substantive
appeal.  38 U.S.C.A. � 7105 (West 1991); Roy v. Brown, 5 Vet.
App. 554 (1993).  The RO should return this issue to the
Board only if the veteran perfects his appeal in accordance
with the provisions of 38 U.S.C.A. � 7105 (West 2002).

Accordingly, the case is REMANDED to the RO for the following
action:

1.  The RO must review the claims
file and ensure that all
notification and development actions
required by 38 U.S.C.A. �� 5102,
5103, and 5103A (West 2002) are
fully complied with and satisfied.
See also 38 C.F.R. � 3.159 (2003).
The veteran should be specifically
told of the information or evidence
he should submit, if any, and of the
information or evidence that VA will
obtain with respect to his claim.
38 U.S.C.A. � 5103(a) (West 2002).
He should also be told of the period
for response as set forth in
38 U.S.C.A. � 5103(b) (West 2002).

2.  The veteran must be contacted
and requested to state his desires
in regard to a hearing at the RO.
The veteran should be advised as to
whether or not the hearing can be
held away from the RO and near the
veteran.  If the veteran still
desires to have a hearing, a hearing
to be conducted by RO personnel must
be scheduled for him.

3.  After completion of these
actions, the veteran should be
afforded an examination of his
cervical spine, left hip, left knee
and right knee disabilities.  The
examination for the cervical spine
disability must include the
orthopedic and neurological
components to comply with the change
in regulations.  The claims file and
a copy of this remand should be made
available to and reviewed by the
examiner prior to the examination.
Any and all indicated evaluations,
studies, and tests deemed necessary
by the examiner should be
accomplished.  All clinical findings
necessary to apply rating criteria
found at 38 C.F.R. � 4.71a,
Diagnostic Code 5293 (2001), those
set forth at 67 Fed. Reg. 54,349
(Aug. 22, 2002), and the new general
criteria used to evaluate diseases
and injuries of the spine found at
68 Fed. Reg. 51, 456-57 (Aug. 27,
2003) should be made.  Range of
motion studies must be conducted and
all functional losses should be
identified, such as pain on use,
weakness, incoordination,
fatigability, etc.  Functional loss
should be equated with limitation of
motion beyond that shown clinically.
Left or right knee instability
should be specifically noted in
addition to limitation of motion or
other functional losses.  The report
of examination must include a
complete rationale for all opinions
expressed.

4.  The veteran should also be
afforded a VA examination to
determine his ability to leave his
home.  The claims file should be
provided to the examining physician
for review prior to the examination.
At the conclusion of the evaluation,
the examiner should express an
opinion as to the medical
probability that the veteran is
housebound due to his service-
connected disabilities. A complete
rationale should be provided for any
conclusions reached.

5.  After undertaking any other
development deemed appropriate, the
RO should readjudicate the issues on
appeal.  If any benefit sought is
not granted, the veteran and his
attorney should be furnished with a
supplemental statement of the case
and afforded an opportunity to
respond before the record is
returned to the Board for further
review.  The supplemental statement
of the case should specifically
refer to the new rating criteria for
Diagnostic Code 5293.

6.  The RO should issue a SOC
pertaining to the issues of
propriety of a reduction of a 30
percent rating for osteoarthritis of
the right hip as well as an
increased rating for the same
disability.  If, and only if, a
substantive appeal is timely filed,
these issues should be returned to
the Board.

Thereafter, the case should be returned to the Board for
further appellate review, if in order.  By this remand, the
Board intimates no opinion as to any final outcome warranted.
No action is required of the veteran until he is notified by
the RO.  The veteran has the right to submit additional
evidence and argument on the matters the Board has remanded
to the RO.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This case must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board or by the Court for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans' Benefits Improvements Act of 1994, Pub. L.
No. 103-446, � 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
� 5101 (West 2002) (Historical and Statutory Notes).  In
addition, VBA's Adjudication Procedure Manual, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.

________________________________
MARK F. HALSEY
Veterans Law Judge, Board of Veterans' Appeals

 Department of Veterans Affairs

YOUR RIGHTS TO APPEAL OUR DECISION

The attached decision by the Board of Veterans' Appeals (BVA or Board) is
the final decision for all issues addressed in the "Order" section of the
decision.  The Board may also choose to remand an issue or issues to the
local VA office for additional development.   If the Board did this in your
case, then a "Remand" section follows the "Order."  However, you cannot
appeal an issue remanded to the local VA office because a remand is not a
final decision. The advice below on how to appeal a claim applies only to
issues that were allowed, denied, or dismissed in the "Order."
If you are satisfied with the outcome of your appeal, you do not need to do
anything.  We will return your file to your local VA office to implement
the BVA's decision.  However, if you are not satisfied with the Board's
decision on any or all of the issues allowed, denied, or dismissed, you
have the following options, which are listed in no particular order of
importance:
?	Appeal to the United States Court of Appeals for Veterans Claims
(Court)
?	File with the Board a motion for reconsideration of this decision
?	File with the Board a motion to vacate this decision
?	File with the Board a motion for revision of this decision based on
clear and unmistakable error.
Although it would not affect this BVA decision, you may choose to also:
?	Reopen your claim at the local VA office by submitting new and
material evidence.
There is no time limit for filing a motion for reconsideration, a motion to
vacate, or a motion for revision based on clear and unmistakable error with
the Board, or a claim to reopen at the local VA office.  None of these
things is mutually exclusive - you can do all five things at the same time
if you wish.  However, if you file a Notice of Appeal with the Court and a
motion with the Board at the same time, this may delay your case because of
jurisdictional conflicts. If you file a Notice of Appeal with the Court
before you file a motion with the BVA, the BVA will not be able to consider
your motion without the Court's permission.

How long do I have to start my appeal to the Court?  You have 120 days from
the date this decision was mailed to you (as shown on the first page of
this decision) to file a Notice of Appeal with the United States Court of
Appeals for Veterans Claims.  If you also want to file a motion for
reconsideration or a motion to vacate, you will still have time to appeal
to the Court.  As long as you file your motion(s) with the Board within 120
days of the date this decision was mailed to you, you will then have
another 120 days from the date the BVA decides the motion for
reconsideration or the motion to vacate to appeal to the Court.  You should
know that even if you have a representative, as discussed below, it is your
responsibility to make sure that your appeal to Court is filed on time.

How do I appeal to the United States Court of Appeals for Veterans Claims?
Send your Notice of Appeal to the Court at:

Clerk, U.S. Court of Appeals for Veterans Claims
625 Indiana Avenue, NW, Suite 900
Washington, DC 20004-2950

You can get information about the Notice of Appeal, the procedure for
filing a Notice of Appeal, the filing fee (or a motion to waive the filing
fee if payment would cause financial hardship), and other matters covered
by the Court's rules directly from the Court. You can also get this
information from the Court's web site on the Internet at
www.vetapp.uscourts.gov, and you can download forms directly from that
website.  The Court's facsimile number is (202) 501-5848.

To ensure full protection of your right of appeal to the Court, you must
file your Notice of Appeal with the Court, not with the Board, or any other
VA office.

How do I file a motion for reconsideration? You can file a motion asking
the BVA to reconsider any part of this decision by writing a letter to the
BVA stating why you believe that the BVA committed an obvious error of fact
or law in this decision, or stating that new and material military service
records have been discovered that apply to your appeal. If the BVA has
decided more than one issue, be sure to tell us which issue(s) you want
reconsidered. Send your letter to:
Director, Management and Administration (014)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420

VA
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CONTINUED

Remember, the Board places no time limit on filing a motion for
reconsideration, and you can do this at any time. However, if you also plan
to appeal this decision to the Court, you must file your motion within 120
days from the date of this decision.

How do I file a motion to vacate? You can file a motion asking the BVA to
vacate any part of this decision by writing a letter to the BVA stating why
you believe you were denied due process of law during your appeal. For
example, you were denied your right to representation through action or
inaction by VA personnel, you were not provided a Statement of the Case or
Supplemental Statement of the Case, or you did not get a personal hearing
that you requested. You can also file a motion to vacate any part of this
decision on the basis that the Board allowed benefits based on false or
fraudulent evidence.  Send this motion to the address above for the
Director, Management and Administration, at the Board.  Remember, the Board
places no time limit on filing a motion to vacate, and you can do this at
any time. However, if you also plan to appeal this decision to the Court,
you must file your motion within 120 days from the date of this decision.

How do I file a motion to revise the Board's decision on the basis of clear
and unmistakable error? You can file a motion asking that the Board revise
this decision if you believe that the decision is based on "clear and
unmistakable error" (CUE).  Send this motion to the address above for the
Director, Management and Administration, at the Board. You should be
careful when preparing such a motion because it must meet specific
requirements, and the Board will not review a final decision on this basis
more than once. You should carefully review the Board's Rules of Practice
on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified
representative before filing such a motion. See discussion on
representation below. Remember, the Board places no time limit on filing a
CUE review motion, and you can do this at any time.

How do I reopen my claim? You can ask your local VA office to reopen your
claim by simply sending them a statement indicating that you want to reopen
your claim.  However, to be successful in reopening your claim, you must
submit new and material evidence to that office. See 38 C.F.R. 3.156(a).

Can someone represent me in my appeal?  Yes. You can always represent
yourself in any claim before VA, including the BVA, but you can also
appoint someone to represent you.  An accredited representative of a
recognized service organization may represent you free of charge.  VA
approves these organizations to help veterans, service members, and
dependents prepare their claims and present them to VA. An accredited
representative works for the service organization and knows how to prepare
and present claims. You can find a listing of these organizations on the
Internet at: www.va.gov/vso.  You can also choose to be represented by a
private attorney or by an "agent." (An agent is a person who is not a
lawyer, but is specially accredited by VA.)

If you want someone to represent you before the Court, rather than before
VA, then you can get information on how to do so by writing directly to the
Court.  Upon request, the Court will provide you with a state-by-state
listing of persons admitted to practice before the Court who have indicated
their availability to represent appellants.  This information is also
provided on the Court's website at www.vetapp.uscourts.gov.

Do I have to pay an attorney or agent to represent me?  Except for a claim
involving a home or small business VA loan under Chapter 37 of title 38,
United States Code, attorneys or agents cannot charge you a fee or accept
payment for services they provide before the date BVA makes a final
decision on your appeal. If you hire an attorney or accredited agent within
1 year of a final BVA decision, then the attorney or agent is allowed to
charge you a fee for representing you before VA in most situations.  An
attorney can also charge you for representing you before the Court.  VA
cannot pay fees of attorneys or agents.

Fee for VA home and small business loan cases:  An attorney or agent may
charge you a reasonable fee for services involving a VA home loan or small
business loan.  For more information, read section 5904, title 38, United
States Code.

In all cases, a copy of any fee agreement between you and an attorney or
accredited agent must be sent to:

Office of the Senior Deputy Vice Chairman (012)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420

The Board may decide, on its own, to review a fee agreement for
reasonableness, or you or your attorney or agent can file a motion asking
the Board to do so. Send such a motion to the address above for the Office
of the Senior Deputy Vice Chairman at the Board.

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series: legacy

disposition: remanded

text: These claims must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West 2002) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handli

text:
Citation Nr: 0329000
Decision Date: 10/24/03    Archive Date: 11/04/03

DOCKET NO.  03-07 714	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
Muskogee, Oklahoma

THE ISSUES

1.  Entitlement to service connection for residuals of a
broken nose.

2.  Entitlement to service connection for cysts.

3.  Entitlement to service connection for skin rashes.

REPRESENTATION

Appellant represented by:	Oklahoma Department of
Veterans Affairs

ATTORNEY FOR THE BOARD

M. Overly, Associate Counsel

REMAND

The veteran had active service from August 1981 to June 1983,
and from May 1986 to July 1991.

This matter comes before the Board of Veterans' Appeals
(Board) on appeal from an August 2002 rating decision by
which the RO denied service connection for residuals of a
broken nose, painful joints, cysts, loss of concentration,
and skin rashes.  The veteran disagreed with these decisions.
During the course of the ensuing appeal, the RO granted
service connection for painful joints as due to an
undiagnosed illness and loss of concentration as due to an
undiagnosed illness.  Consequently, those issues are not
before the Board.

In his substantive appeal of March 2003, the veteran
indicated that he wanted a hearing before a member of the
Board held at a local VA office.  On the appeal form, the
veteran wrote the following:  "[r]equest
video[t]elecoference [h]earing [a]t the VARO, Muskogee."  By
letter dated in September 2003 the veteran was notified that
a hearing was scheduled at the Muskogee office and would be
conducted using "video conferencing" techniques.  In a
letter received by the RO later in September 2003, the
veteran declined the video hearing, preferring to wait for a
future visit by a member of the Board.  In light of this most
recent request, this matter is remanded to the RO for the
following:

The RO should schedule the veteran for a
hearing before a member of the Board
sitting at the RO.  The veteran should be
informed that he will be scheduled on a
Travel Board hearing docket, unless he
withdraws his request.  The claims folder
should be made available to the veteran
and his representative so that they may
prepare for the hearing.  They should be
notified of the date and time of the
hearing.

After the veteran and his representative have been given an
opportunity to appear at the hearing, the claims folder
should be returned to this Board for further appellate
review.  The purpose of this remand is to satisfy a hearing
request, and the Board does not intimate any opinion as to
the merits of the case, either favorable or unfavorable.  The
appellant has the right to submit additional evidence and
argument on the matters the Board has remanded to the RO.
Kutscherousky v. West, 12 Vet. App. 369 (1999).  No action is
required of the veteran until he is notified.

These claims must be afforded expeditious treatment by the
RO.  The law requires that all claims that are remanded by
the Board or by the United States Court of Appeals for
Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans' Benefits Improvements Act of 1994, Pub. L.
No. 103-446, � 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
� 5101 (West 2002) (Historical and Statutory Notes).  In
addition, VBA's Adjudication Procedure Manual, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.

________________________________
MARK F. HALSEY
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. � 7252 (West 2002), only a decision of the
Board is appealable to the United States Court of Appeals for
Veterans Claims.  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)
(2002).