BVA9506326 DOCKET NO. 93-13 790 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for residuals of a back injury. 2. Entitlement to service connection for residuals of a right shoulder injury. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Lois N. Petzold, Associate Counsel REMAND The veteran, who had active service from November 1973 to November 1976, asserts that he suffers from residuals of a back injury and a right shoulder injury, which were both sustained during service. He contends, therefore that both of these disabilities should be service connected. The VA has a duty to assist the veteran in the development of facts pertinent to his claim. 38 U.S.C.A. § 5107(a) (West 1991). The United States Court of Veterans Appeals (the Court) has held that the duty to assist the veteran in developing available facts and evidence to support his claim includes obtaining available medical records which are relevant to the claimant's appeal and obtaining adequate VA examinations. Littke v. Derwinski, 1 Vet.App. 90 (1990). In the case of Ivey v. Derwinski, 2 Vet.App. 320 (1992), the Court stated that even when the appellant did not request that pertinent medical records be obtained, when a claimant puts the VA on notice that such records exist, then the VA's duty to assist the claimant in developing a claim is triggered. In the case at hand, the claims folder contains an insurance record dated in December 1991, showing that the veteran received treatment from a chiropractor for cervical and thoracic muscle spasm. However, there are no treatment records from this doctor associated with the claims folder. Also, the veteran alleges in his February 1992 notice of disagreement that he was hospitalized at Fort Hood, Texas after being transported there by chopper. Although the veteran's service medical records are associated with the claims folder, there is no record of this hospitalization. There is of record a June 1974 radiology report from the hospital at Ft. Hood concerning a right shoulder injury; however, there are no records showing the referral to the radiology department. A November 1991 response to a records request from the National Personnel Records Center indicated that a further search for medical records could be conducted if the RO provided information regarding the alleged injury, place of treatment, type of treatment, and dates of treatment. The RO failed to follow up on this. Fulfillment of the statutory duty to assist includes the conduct of a thorough and contemporaneous medical examination which takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one. Green v. Derwinski, 1 Vet.App. 121 (1991). The veteran has never been afforded a VA examination in the instant claim, and the RO should schedule him for an examination so that his current disabilities can be assessed accurately. Moreover the VA has a duty to acknowledge and consider all regulations which are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusion. Schafrath v. Derwinski, 1 Vet.App. 589 (1991). In order to comply with the Court mandates discussed above, the Board finds that additional assistance is required. The case is REMANDED to the RO for action as follows: 1. The veteran should be asked to furnish the names and addresses of all medical providers from whom he has sought treatment post-service for his back and right shoulder disabilities. After obtaining the necessary release from the veteran, the named providers, to include Dr. Craig Henderson, 510 B S.W. 5th Terrace, Williston, Florida, 32696, should be contacted and requested to provide complete clinical records concerning all such post- service treatment of the veteran. 2. The veteran should be requested to provide as much specific information as possible regarding the injury he was treated for at the Fort Hood hospital, including the dates of treatment, and which injury he was treated for. The RO should then provide this information to both the National Personnel Records Center, and to the hospital at Fort Hood, and request a search for records of the alleged hospitalization to specifically include the June 1974 time frame. 3. After the above-mentioned records have been obtained, the veteran should be afforded a special VA orthopedic examination to determine the nature and extent of disability due to the back and right shoulder. All necessary tests should be performed. The claims folder must be made available to the examiner prior to the examination. If current disability is found, the examiner should render an opinion for the record as to whether it is at least as likely as not that the current disability shown is related to the injuries sustained in service. 4. Following completion of the foregoing, the RO must review the claims folder and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, including if the requested examination does not contain all test reports, special studies or opinions requested, appropriate corrective action is to be implemented. Thereafter, the claim should be reviewed by the RO. If the claim continues to be denied, the veteran and his representative should be furnished an appropriate supplemental statement of the case, and afforded a reasonable opportunity to respond. The case should then be returned to the Board for further appellate consideration. C.W. SYMANSKI Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1994).