BVA9508330 DOCKET NO. 93-18 173 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to an increased evaluation for migratory palindromic arthritis, currently rated 20 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. L. Kennedy, Counsel REMAND The veteran served on active duty from November 1947 to January 1948, August 1948 to April 1949, and November 1950 to July 1953. This appeal arises from a March 1992 rating decision of the Department of Veterans Affairs (VA), Buffalo, New York, Regional Office (RO). In that decision, the RO denied the veteran's claim of entitlement to an increased evaluation for migratory palindromic arthritis. 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's accredited representative in this case has requested that the case be remanded to the RO for additional development as it is argued on the veteran's behalf that the most recent VA examination is inadequate. The representative has asserted that the VA examiner indicated that medical reports of previous studies should be obtained in order to properly evaluate the disability at issue. Moreover, the representative argues that a current VA examination is necessary in view of the substantial amount of time since the veteran was last evaluated. The Board has reviewed the report of the December 1991 VA examination, and finds that it is inadequate for purposes of evaluating the current nature and severity of the disability in question. The VA examiner clearly indicated that he had no medical records relating to treatment of the veteran's migratory palindromic arthritis and he clearly indicated that such records would be useful in evaluating the veteran's service-connected disability. The Board observes that a substantial number of medical records were added to the veteran's claims file after December 1991 reflecting medical treatment received by the veteran both prior to and subsequent to the December 1991 VA examination. The Board finds that the VA examiner should have access to those records for review as was requested by the VA examiner in 1991 to aid in the study of this case. Thus, the Board has determined that the RO should ensure that the veteran is afforded a current VA examination. 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 reflects that the veteran has received ongoing medical treatment at the Rheumatology Clinic of the Syracuse, New York, VA Medical Center. The RO should obtain all available current treatment records from the facility and associate them with the assembled records. 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 obtain any available treatment records from the Syracuse, New York, VA Medical Center, including the Rheumatology Clinic of that facility, regarding treatment from November 1992 through the present. 2. The veteran should be afforded a VA orthopedic/rheumatology examination to determine the nature and severity of his migratory palindromic arthritis. 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 examination 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. 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) (1994). 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. THOMAS J. DANNAHER 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).