BVA9502866 DOCKET NO. 93-10 469 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Whether new and material evidence has been presented to reopen a claim for service connection for a back disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Lois N. Petzold, Associate Counsel REMAND The veteran, who had active service from September 1950 to July 1952, contends, in effect, that the private medical records, doctors' statements, and personal testimony submitted constitute new and material evidence warranting reopening of his claim for entitlement to service connection for a back disability. 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). This duty is heightened in situations where, as in this case, some of the veteran's service medical records may have been destroyed at a fire in a records center in the early l970's. Information in the claims file indicates that the veteran's dental records and the report of examination at induction and separation were requested not long after the veteran's discharge from service. Subsequent attempts to obtain the complete records occurred after the above-mentioned fire. The veteran has reported being hospitalized for his back in service, and the RO has not tried every available avenue to locate copies of these records. 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. During a June 1992 personal hearing, the veteran testified that within the first few years after his discharge from service, he received treatment from Providence Hospital in Ohio, Mt. Pleasant Hospital in Pennsylvania, and Frick Hospital, the location of which was unmentioned. The veteran also testified that he lost time from his job after service, at the Cones Engine Company in Columbus, Ohio, because of his back, and that they would probably have records of this and physical examinations. He also mentioned receiving treatment from the Pittsburgh VAMC about two years after his discharge from service as well. However, the RO has never requested the veteran's medical records from any of these facilities. Furthermore, in an October 1982 letter, R.E. Springhorn, D.C., explained that he treated the veteran in May 1957 for what the veteran claimed was a back injury he incurred in the military. The RO must attempt to obtain the actual clinical records from Dr. Springhorn. 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). Therefore, if the RO is able to obtain any additional pertinent records, the veteran should be afforded a current VA examination. 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 RO should contact the Surgeon General's office to attempt to confirm the veteran's reported hospitalization in l951 at Camp Adderbury through review of extracts obtained from magnetic tapes discovered in 1988. The RO should also attempt to obtain sick and morning reports to confirm this same period of hospitalization. 2. After obtaining the necessary release and complete addresses where necessary from the veteran, the RO should obtain copies of all treatment records for the period l952 to l965 from the following sources and associate them with the claims folder: Providence Hospital, Ohio; Mt. Pleasant Hospital, Pennsylvania; Frick Hospital; the Pittsburgh VAMC; R.E. Springhorn, D.C., 2520 California Street, Tipton Park West, Columbus, Indiana, 47201; and Cones Engine Company, Columbus, Indiana. 3. If pertinent records are secured, any additional development deemed necessary by the RO should be accomplished, to include a VA examination and an opinion as to whether any current back disability is related to a back disability of service origin. All necessary tests should be performed. The claims folder must be made available to the examiner prior to the examination so that he or she may review pertinent aspects of the veteran's medical history. 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. I. S. SHERMAN 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. (Continued on Next Page) 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).