BVA9503266 DOCKET NO. 93-07 721 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to an increased rating for residuals of a fracture of the left femur, currently rated 30 percent disabling. 2. Entitlement to an increased rating for a chronic back disorder, currently rated 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD James J. Dunphy, Counsel INTRODUCTION The veteran had active service from August 1961 to August 1963 In addition to the issues of entitlement to increased ratings for the veteran's back and knee disabilities, the RO also denied service connection for a left hip disorder in an April 1992 rating action. The statement of the case provided to the veteran included this issue. In his appeal, he made reference to complaints involving his lower back, left leg, and ankle. At the personal hearing, he indicated that the issues were as stated on the title page; the issue of entitlement to service connection for a left hip disorder was specifically noted to have been dropped. Accordingly, the Board concludes that the only issues on appeal are those stated on the title page. The veteran has raised the issue of entitlement to a total rating based on individual unemployability due to service-connected disabilities. Such a rating was denied by the RO in August 1993. The available record does not reflect that the veteran filed an appeal from this action. REMAND At the hearing on appeal in October 1992, the veteran testified that he had had difficulty with employment because of his back and knee disabilities. He indicated that he was being treated at the Bronx VA Medical Center. VA outpatient treatment records subsequent to 1992 are not on file. The veteran's representative has requested that the records of the veteran's treatment be obtained prior to consideration of his claim. Records on file indicate that the veteran was last examined by the VA in January 1992. At that time, the veteran indicated that he could not work at all due to his back and knee conditions. The Board is of the opinion that a current examination is needed to evaluate the veteran's level of disability in consideration of the holding of the United States Court of Veterans Appeals (Court) in Caffrey v. Brown, 6 Vet.App. 377 (1994). In that case, the Court determined that an examination conducted approximately two years before the Board decision was too remote to be contemporaneous. Subsequent to the case being referred to the Board, additional evidence was received. These records are pertinent to the veteran's claim and have not been reviewed by the RO. 38 C.F.R. § 20.1304(c) provides that any pertinent evidence accepted at the Board without the benefit of RO consideration must be accompanied by a written waiver. A written waiver of RO consideration was not submitted by the veteran. The evidence submitted indicates that the veteran was awarded Social Security benefits, effective in June 1992. Also submitted was a record of treatment by Norman J. Silver, M.D., and Anthony S. Klein, M.D., which reflected entries in December 1991 and October 1993. It is not clear whether he has had any subsequent treatment. The Department of Veterans Affairs (hereinafter VA) has a statutory duty to assist the appellant in the development of facts pertinent to his well-grounded claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. §§ 3.103(a), 3.159 (1993). The Court has held that the VA's duty to assist the appellant in obtaining and developing available facts and evidence to support a claim can include the obtaining of private medical records. Littke v. Derwinski, 1 Vet.App. 90 (1990). Accordingly, the case is remanded to the RO for the following actions: 1. The veteran should provide the names and addresses of all private physicians from whom he received treatment, along with the dates of treatment. After securing appropriate releases, all records of treatment should be obtained and associated with the claims folder. 2. All records of outpatient treatment afforded the veteran by the VA subsequent to October 1992 should be obtained and associated with the claims folder. 3. The RO should obtain a copy of the determination by the Social Security Administration which awarded the veteran disability benefits. The records or examination reports utilized by the Social Security Administration in reaching their decision should also be obtained and associated with the claims folder. 4. Thereafter, the veteran should be afforded an orthopedic examination to determine the current manifestations of his service-connected low back and knee disabilities. All indicated tests and studies should be accomplished. The examiner should review the veteran's treatment records obtained pursuant to the above-requested development and the findings on the examination. An opinion should be rendered with regard to the impact of the veteran's service-connected disabilities on his industrial adaptability. The examiner should consider not only the physical limitations due to his disabilities but also functional loss related to pain as provided in 38 C.F.R. § 4.40 (1994). The veteran's claims folder should be made available to the examiner for study prior to the examination. When the requested development is completed, the RO should review the case, including all additional records added to the record since the previous supplemental statement of the case. If the benefits sought are not granted, the veteran and his representative should be provided with an appropriate supplemental statement of the case. They should also be given a reasonable period to respond. The case should then be returned to the Board for further appellate consideration. The purposes of this remand are to obtain additional information and to assist the veteran in the development of his claim. No inference should be drawn regarding the merits of the claim, and no action is required of the veteran until he is notified. V. L. JORDAN Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1993).