BVA9506535 DOCKET NO. 93-16 179 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to an increased evaluation for closed fracture of the mid-distal left tibia and fibula with abnormal subluxation of the peroneal tendon, currently rated 10 percent disabling. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD S. L. Kennedy, Counsel INTRODUCTION The veteran served on active duty from April 1987 to September 1990. This appeal arises from an April 1991 rating decision of the Department of Veterans Affairs (VA), Portland, Oregon, Regional Office (RO). In that decision, the RO granted, in pertinent part, the veteran's claim of entitlement to service connection for closed fracture of the mid-distal left tibia and fibula with abnormal subluxation of the peroneal tendon, and assigned a 10 percent disability evaluation. The veteran's accredited representative in this case has raised the issue of service connection for a low back disability secondary to the veteran's service-connected disability of the left lower extremity. This issue is not currently in appellate status and is therefore, referred to the RO for appropriate action. REMAND 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). 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). In this regard, the Board of Veterans' Appeals (Board) notes that the veteran was last afforded a VA examination for rating purposes in October 1990, soon after his discharge from service. At the time of the examination, the orthopedic examiner indicated, in part, that the continuing pain and numbness at the fracture site were secondary to soft tissue scarring from the fracture as well as some continued healing of the fracture. Notably, a service medical record entry of a March 1990 bone scan of the lower legs indicated, in part, that the findings demonstrated were not abnormal as it appeared that the fracture was apparently still undergoing some remodeling and healing. Evidence added to the record since the VA examination includes statements dated in 1992 from private health care providers from whom the veteran was apparently receiving ongoing treatment for his left lower leg disability for continued complaints of pain with walking and with vigorous activity. In an April 1992 statement, one of the private orthopedists indicated that he was unable to explain why the veteran had pain at the fracture site and was not able to run; his reported findings included no limitation of motion of the left ankle and left knee, no significant degree of shortening, no significant degree of malrotation, and only a slight degree of valgus. He reported that his diagnostic impression was healed fracture, left tibia and fibula. The Board has carefully reviewed the evidence of record. However, in view of the veteran's continuing complaints of pain and impairment of function since the last VA examination of several years ago, wherein it was reported that complete healing of the fracture had not been accomplished, the Board finds that a current VA examination would enable the Board to properly assess and evaluate the current severity of the disability in question. 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 on appeal reflects that since his discharge from service, the veteran has received ongoing treatment, including physical therapy, at Kaiser Permanente. The RO should obtain all relevant treatment records and associate them with the assembled records. The Board also notes that it appears that the veteran may have been scheduled for another VA examination in September 1993; however, it is unclear whether this examination was accomplished. The RO should ensure that the reports of any VA examinations conducted subsequent to October 1990 are forwarded to the Board for review. 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 the disability at issue, 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, including clinical records from Kaiser Permanente, dated from 1992 through the present. All records obtained should be added to the claims folder. 2. The RO should obtain the reports of any VA examinations conducted for rating purposes since October 1990, and associate them with the assembled records. 3. The veteran should be afforded a VA orthopedic examination to determine the nature and severity of his closed fracture of the mid-distal left tibia and fibula with abnormal subluxation of the peroneal tendon. 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. The examination should be conducted in accordance with the VA Physician's Guide for Disability Evaluation Examinations. The examination report should include an industrial history with notation of any time lot from employment due to the left lower extremity disability. All indicated diagnostic tests and procedures, including any appropriate neurological studies, should be accomplished. 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. The claims folder should be made available to the examiner prior to the examination. 4. 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. 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) (1994).