BVA9506345 DOCKET NO. 93-19 199 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to an increased evaluation for degenerative arthritis of the right knee, currently rated 10 percent disabling. REPRESENTATION Appellant represented by: AMVETS ATTORNEY FOR THE BOARD S. L. Kennedy, Counsel REMAND The veteran served on active duty from April 1971 to August 1991. This appeal arises from a July 1992 rating decision of the Department of Veterans Affairs (VA), San Diego, California, Regional Office (RO). In that decision, the RO granted service connection for degenerative arthritis of the right knee and assigned a 10 percent disability evaluation. In written argument submitted to the Board of Veterans' Appeals (Board) dated in September 1993, the veteran's accredited representative in this case requests that the Board remand the case to the RO for additional development. It is asserted that the veteran has indicated that there are available treatment records relating to treatment received by the veteran since the last VA examination in April 1992 which have not been obtained by the VA. Hence, it is requested that the Board remand the case to the RO to procure such records, and to then schedule the VA for a reexamination of his right knee. The VA has a duty to assist a claimant in the development of facts pertinent to his or her claim under 38 C.F.R. § 3.103(a) (1994). Fulfillment of the duty to assist the appellant includes the procurement and consideration of any relevant VA or other medical records. Ferraro v. Derwinski, 1 Vet.App. 326 (1991). As noted by the veteran's representative in this case, the veteran has reported that he continues to be followed by the medical community, and that it was his hope that he would receive a total knee replacement. The Board observes further that there is a notation in the file by the RO to the veteran's representative relating to the procurement of additional treatment of the veteran's right knee from June 1992 to the present. However, there is no indication that further development of this matter was accomplished. Thus, the Board has determined that the RO should obtain such information from the veteran and ensure that all available treatment records are associated with the record on appeal. The United States Court of Veterans Appeals has held that fulfillment of the VA's duty to assist the veteran includes providing him with a thorough and contemporaneous medical examination. Littke v. Derwinski, 1 Vet.App. 90, 92 (1990). Following receipt of the additional medical evidence referenced above, the RO should ensure that the veteran is afforded a current VA examination. In view of the foregoing, and in order to fully and fairly adjudicate the veteran's claim, the case is REMANDED to the RO for the following action: 1. The RO should request that the veteran identify all sources of medical treatment received for his right knee disability since April 1992, and furnish signed authorizations for release to the VA of private medical records in connection with each non-VA medical source he identifies. Copies of the medical records from all sources he identifies (not already in the claims folder) should then be requested. All records obtained should be added to the claims folder. 2. The veteran should be afforded a VA orthopedic examination to determine the nature and severity of his right knee disability. The scope of the examination should be broad enough to cover all residual conditions which are suggested by the veteran's complaints, symptoms or findings at the time of examination. All pertinent complaints or symptoms having a medical cause should be covered by a definite diagnosis. The examinations should be conducted in accordance with the VA Physician's Guide for Disability Evaluation Examinations. All indicated diagnostic tests and procedures should be accomplished. The report should summarize all significant positive findings. All disability should be evaluated in relation to its history, with emphasis upon the limitation of activity, to include employability, and any functional loss due to pain, imposed by the disorder in light of the whole recorded history. The claims folder should be made available to the examiner prior to the examination. 3. Thereafter, the RO should readjudicate the veteran's claim. The rating should reflect consideration of the provisions of 38 C.F.R. § 3.321(b)(1). If the determination remains adverse to the veteran, he should be provided a supplemental statement of the case which includes a summary of additional evidence submitted, any additional applicable laws and regulations, and the reasons for the decision. The veteran and his representative should be afforded the applicable time to respond. The case should then be returned to the Board for further appellate review. The purpose of this REMAND is to obtain additional evidence and ensure that the veteran is afforded all due process of law. The Board intimates no opinion, either factual or legal, as to the ultimate conclusion warranted in this case. EUGENE A. O'NEILL 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 action has been taken in accordance with the Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 303, 108 Stat. 4645, ___ (1994), and 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).