BVA9503783 DOCKET NO. 93-14 024 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to an increased evaluation for post-traumatic stress disorder, currently rated 50 percent disabling. 2. Entitlement to an increased evaluation for residuals of gunshot wound of the right knee with retained foreign body, currently rated 10 percent disabling. 3. Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD S. L. Kennedy, Counsel REMAND The veteran served on active duty from January 1966 to January 1968. This appeal arises from a November 1991 rating decision of the Department of Veterans Affairs (VA), Columbia, South Carolina, Regional Office (RO). In that decision, the RO denied the veteran's claim of entitlement to increased evaluations for his service connected post-traumatic stress disorder (PTSD), currently rated 50 percent disabling, and residuals of gunshot wound of the right knee with retained foreign body, currently rated 10 percent disabling. In that rating decision, the RO also denied the veteran's claim of entitlement to service connection for a low back disability. The veteran's claim was received at the Board of Veterans' Appeals (Board) in June 1993. Since that time, additional evidence has been received from the veteran. The additional evidence, which consists of medical records which appear to be related to a Social Security Administration (SSA) disability claim filed by the veteran, was received without a waiver of the veteran's right to have that evidence initially considered by the RO. Although the veteran's accredited representative in additional argument submitted to the Board made reference to this additional evidence, any such pertinent evidence submitted by the veteran or representative that is accepted by the Board must be referred to the RO for review and preparation of a supplemental statement of the case, unless this procedural right is waived by the appellant. See 38 C.F.R. § 20.1304(c) (1993). The veteran has not waived his procedural rights and, in view of other necessary developments described below, this claim must be returned to the RO for consideration of the evidence submitted directly to the Board. The VA has a duty to assist the veteran in the development of facts pertinent to his claim under 38 C.F.R. § 3.103(a) (1993). As indicated by the above-referenced evidence submitted by the veteran, it appears that the veteran has filed a claim for SSA disability benefits. As the veteran has asserted that his service-connected disabilities should be rated 100 percent and as it is unclear whether the records submitted by the veteran constitute the complete SSA medical records upon which a decision was based, the RO should ensure that the SSA decision as well as the related medical records have been associated with the record on appeal. The U.S. 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). In this case, the veteran contends that his service-connected PTSD as well as his service- connected right knee disability have increased in severity. With respect to the increased rating issues in this case, the RO based its decision, in part, on several VA outpatient treatment records. However, from a careful review of those records, the Board has determined that those records are not adequate for purposes of determining the current nature and extent of the veteran's service-connected disabilities at issue in this case. Moreover, it does not appear that the veteran has been afforded a VA examination of those disabilities for rating purposes in several years. Accordingly, the RO should ensure that the veteran is scheduled for VA examinations in the appropriate medical specialities. 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). The record assembled for appellate review includes a statement from Michael N. Brown, M.D., dated in September 1991, who reported that the veteran had a history of lumbar disc disease, and who indicated that the veteran was presently under treatment for herniated disc in the lower back. The RO should ensure that all pertinent private medical records associated with treatment of the veteran's low back disability, including the actual clinical records of Dr. Brown are of record. Moreover, the record suggests that the veteran may be receiving ongoing outpatient treatment at the VA Medical Center in Fayetteville, North Carolina for his service-connected disabilities. The RO should also ensure that all pertinent VA medical records are associated with the record on appeal 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 veteran should identify all sources of medical treatment received for a low back disability, 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, to include the actual clinical records of Michael N. Brown, M.D., Dillon Family Medical, P.A., 604 North 4th Avenue, P.O. Box 1069, Dillon, South Carolina 29536. All records obtained should be added to the claims folder. 2. The RO should obtain any available treatment records from the Fayetteville, North Carolina, VA Medical Center dated from September 1991 through the present. 3. The RO should request a copy of the SSA decision and obtain legible copies of the medical records upon which this decision was based. This evidence should be associated with the veteran's claims folder. 4. The veteran should be afforded appropriate VA examinations in orthopedics and neurology to determine the nature and extent of his service-connected right knee disability. 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, including x-rays. 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, imposed by the disorder in light of the whole recorded history. The examiners are requested to describe all symptomatology related to the veteran's service-connected residuals of gunshot wound of the right knee with retained foreign body and that related to any nonservice-connected low back disorder. The claims folder should be made available to the examiners prior to the examination. 5. The veteran should also be afforded a VA psychiatric examination to determine the nature and extent of the service-connected PTSD. The examination should be conducted in accordance with the VA Physician's Guide for Disability Evaluation Examinations, and the claims folder should be made available to the examiner prior to the examination. All indicated diagnostic tests and procedures, including appropriate psychological studies with applicable subscales, should be accomplished. The examination report should contain all five multiaxial assessment levels as provided in the Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, including a numerical and narrative assessment of the veteran's level of functioning as measured by the Global Assessment of Functioning (GAF) scale code. Additionally, the examiner should specifically state whether or not the PTSD results in reduction in initiative, flexibility, efficiency, and reliability levels, and if so, how this relates to the veteran's industrial impairment. The examiner should provide an opinion as to the degree of impairment of the veteran to perform substantially gainful employment due to PTSD. 6. Thereafter, the RO should readjudicate the veteran's claim. If the determinations remain adverse to the veteran, he should be provided a supplemental statement of the case which includes a summary of additional evidence and the reasons for the decision. The veteran 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. CHARLES E. HOGEBOOM 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) (1993).