Citation Nr: 0007557 Decision Date: 03/21/00 Archive Date: 03/28/00 DOCKET NO. 98-08 097 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES Entitlement to an increased rating for residuals of a shell fragment wound of the right cheek and neck, with punctuate scar and retained metallic foreign body, currently evaluated as 10 percent disabling. Entitlement to an increased rating for residuals of bilateral trench feet, rated as 10 percent disabling, prior to January 12, 1998. Entitlement to an increased rating for residuals of a frostbite injury of the left foot, currently evaluated as 10 percent disabling, effective from January 12, 1998. Entitlement to an increased rating for residuals of a frostbite injury of the right foot, currently evaluated as 10 percent disabling, effective from January 12, 1998. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Todd R. Vollmers, Associate Counsel INTRODUCTION The veteran had active service from April 1943 to October 1945. This case came before the Board of Veterans' Appeals (Board) on appeal from a decision of the Department of Veterans Affairs (VA) Regional Office (RO) decision in March 1998 which denied the claimed benefits. The Board notes that the March 1998 rating decision discontinued the 10 percent evaluation for bilateral trench feet residuals, effective January 12, 1998. The RO then established evaluations for the residuals of frostbite injuries of the left and right feet, each rated as 10 percent disabling, effective from January 1998. The veteran appears to raise the issue of service connection for a jaw injury due to shell fragment wounds, resulting in the loosening and removal of teeth, in his October 1997 claim. This issue is referred to the RO for further appropriate action. REMAND The Department of Veterans Affairs (VA) has a duty to assist the appellant in the development of facts pertaining to his claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.103(a) (1999). The United States Court of Appeals for Veterans Claims (Court) has held that the duty to assist the appellant in obtaining and developing available facts and evidence to support his claim includes obtaining medical records to which he has referred and obtaining adequate VA examinations. The Court also stated that the Board must make a determination as to the adequacy of the record. Littke v. Derwinski, 1 Vet. App. 90 (1990). Regarding the veteran's service connected residuals of a frostbite injury of the feet, it is noted that the June 1998 VA examination stated that the veteran most probably had episodes of Raynaud's phenomenon secondary to past frostbite. Another examination is need in order to ascertain the nature and severity of the veteran's frostbite residuals, and the frequency of any characteristic attacks of Raynaud's syndrome. The Board also notes that the veteran stated in his April 1998 Notice of Disagreement that he had been treated at the Northport VA medical center. The record does not indicate that the RO attempted to obtain reports of this recent VA treatment. Any previously unobtained VA treatment reports must be secured prior to deciding the veteran's claims. The United States Court of Appeals for Veterans Claims has ruled that in certain circumstances, records may be deemed to be constructively before the Board. See Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). As such the records must be obtained prior to any further appellate consideration of the merits of the veteran's claims. Furthermore, it appears that in a statement dated in March 1999, the veteran has indicated that his conditions have increased in severity since the last examination. Under such circumstances, a new examination is required. Accordingly, this case is REMANDED for the following additional actions: 1. The RO should obtain the names and addresses of all medical care providers, VA or private, who have treated the veteran for his service connected residuals of a shell fragment wound of the right cheek and neck, and service connected foot disorders, since October 1997. Specifically, the RO should request that the veteran specify all dates of treatment at the Northport VA facility, and obtain any records of such treatment. After securing the necessary release(s), the RO should obtain all records not already contained in the claims folder. Once obtained, these records must be associated with the claims folder. 2. The veteran should then be scheduled for a VA examination in order to assess the nature and extent of his service connected foot disorders and residuals of shell fragment wounds involving the right cheek and neck. The claims folder must be made available to and be reviewed by the examiner in conjunction with the examination. All special tests deemed necessary should be completed. The examiner's report should describe in detail the veteran's current symptoms related to his feet, right cheek and neck, as well as any other pertinent findings and diagnoses. The examiner should also be requested to provide a medical opinion as to the frequency and severity of any Raynaud's syndrome suffered by the veteran in conjunction with his service connected foot disorder. The opinion should be supported by reference to pertinent evidence in the claims file. 3. Upon receipt of the examination report, the RO should review the report to ensure that it is adequate for rating purposes. If not, the RO should return the examination report to the examining physician. 4. Following completion of the foregoing, the RO should readjudicate the veteran's claims and, if the decision remains adverse to the veteran, provide the veteran and his representative with a supplemental statement of the case and the applicable time to respond. Thereafter, the case should be returned to the Board, if otherwise in order. The veteran need take no action until otherwise notified, but has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). By this REMAND, the Board intimates no opinion, either legal or factual, as to any final determination warranted in this case. The purpose of this REMAND is to obtain clarifying information and to provide the veteran with due process. This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals 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 Supp. 1999) (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. C. W. Symanski Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), only a decision of the Board of Veterans' Appeals 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) (1999).