BVA9504401 DOCKET NO. 93-10 624 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an increased evaluation for postoperative osteochondral fracture of the talus, left ankle, currently rated 10 percent disabling. REPRESENTATION Appellant represented by: AMVETS ATTORNEY FOR THE BOARD S. L. Kennedy, Counsel INTRODUCTION The veteran had active service from August 1980 to August 1989. A June 1990 VA administrative decision determined that the veteran's discharge for the period of service from September 14, 1987, through August 17, 1989, was under dishonorable conditions, and hence, a bar to Department of Veterans Affairs (VA) benefits. This appeal arises from a January 1993 rating decision of the St. Petersburg, Florida, VA Regional Office (RO). In that decision, an increased evaluation in excess of 10 percent for service connected postoperative osteochondral fracture of the talus, left ankle, was denied. The veteran's accredited representative has requested remand in this case in order to permit the RO to place in appellate status the issue of service connection for the residuals of a chest injury, for review by the Board of Veterans' Appeals (Board). However, the Board notes that this issue has been previously considered by the RO and that the veteran did not perfect his appeal with respect to that issue. Thus, the issue of whether new and material evidence has been received to reopen the claim of entitlement to service connection for residuals of a chest injury is referred to the RO for appropriate action. REMAND The veteran's claim was received at the Board in May 1993. In June 1993, the Board received additional evidence from the veteran in the form of private medical records documenting a recent left ankle arthroscopic procedure. However, this additional evidence was received without a waiver of the veteran's right to have that evidence initially considered by the RO. Any 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 a claimant in the development of facts pertinent to his or her claim under 38 C.F.R. § 3.103(a) (1993). The U. S. Court of Veterans Appeals (Court) 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). The record reflects that the veteran's service-connected left ankle disorder has been examined by the VA for rating purposes in July 1990 and in October 1992. However, in view of the recent indication that the veteran has undergone arthroscopic surgery for his left ankle and in light of recent findings that the veteran had symptomatology related to left ankle impingement with superficial peroneal nerve neuritis which would not be relieved by the surgery, the Board has determined that the veteran's left ankle should be examined postoperatively for purposes of determining the current nature and extent of the disability. 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 RO should ensure that the complete records from Memorial Medical Center of Jacksonville, particularly those following the arthroscopic surgery in May 1993, are of record, as well as any recent treatment records from the VA outpatient clinic in Jacksonville, Florida. 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 contact the veteran and ask him to furnish the names and addresses of all medical personnel and facilities from whom he has received treatment for the disability at issue since May 1993. After obtaining the necessary authorization from the veteran, the RO should obtain available records from the named sources, to include complete treatment records from Memorial Medical Center of Jacksonville, in Jacksonville, Florida, dated from May 1993 through the present. 2. The RO should obtain any available treatment records from the VA Medical Center in Jacksonville, Florida, since January 1993. 3. The veteran should be afforded appropriate VA examinations in orthopedics and neurology to determine the nature and extent of his service-connected left ankle 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 left ankle disability including a separate discussion of the degree of related neurological and orthopedic impairment. The claims folder should be made available to the examiners prior to the examination 4. The RO should readjudicate the veteran's claim of entitlement to an increased evaluation for postoperative osteochondral fracture of the talus, left ankle. 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 be returned to the Board for further appellate review on the issue currently in appellate status as well as any issue placed in appellate status during the course of this REMAND. The purpose of this REMAND is to afford the appellant due process of law and obtain further development of the evidence. 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).