BVA9503439 DOCKET NO. 93-25 563 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an increased evaluation for low back strain, currently rated 10 percent disabling. 2. Entitlement to service connection for residuals of a left knee injury. 3. Entitlement to service connection for residuals of a right knee injury. 4. Entitlement to service connection for tibial tenosynovitis. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD S. L. Kennedy, Counsel REMAND The veteran served on active duty from November 1986 to December 1991. This appeal arises from a November 1992 rating decision of the Department of Veterans Affairs (VA), Waco, Texas, Regional Office (RO). In that decision, service connection for low back strain was granted, evaluated as 10 percent disabling. In that rating decision, the RO also denied service connection for the residuals of injuries to the left and right knees, and tibial tenosynovitis. The veteran's appeal was received at the Board of Veterans' Appeals (Board) in November 1993. Since that time, the veteran has submitted a statement and additional medical evidence in the form of private medical records relating to medical treatment for a back disorder furnished to the veteran between June 1992 and July 1993. However, this 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 will 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). 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 additional evidence submitted by the veteran and referenced above, indicates that the veteran has received recent medical treatment at the University of Texas at Austin, Student Health Center. On remand, the RO should ensure that any additional records from that facility are associated with the record on appeal. The Board also observes that the veteran in his substantive appeal has indicated that the VA examination conducted in June 1992 was inadequate in that he was not afforded an orthopedic examination and no x-rays were taken of his lower back. He also indicated in this statement that he has neurological symptomatology which he relates to his service-connected low back strain. The Board notes that a review of the June 1992 examination report reflects that an orthopedic evaluation was recommended as well as x-rays of the pertinent joints. It does not appear that an orthopedic examination was conducted, and the reports of any x- rays that were conducted are not of record. Moreover, although the RO indicated in its November 1992 rating decision that no residuals of a left knee injury were shown at the time of the June 1992 examination, it is unclear whether the left knee was actually examined. 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 Board finds that further examination is warranted in this case. The record on appeal also contains a VA Form 9 (Appeal to Board of Veterans' Appeals) which appears to relate to request for a waiver of indebtedness. The RO should ensure that all issues in appellate status are returned to the Board for appellate review. In view of the foregoing, and in order to fairly and fully adjudicate the veteran's claim, the case is REMANDED to the RO for the following action: 1. The RO should request the veteran to identify the names and addresses of any medical care providers, VA and otherwise, who treated him for a back disorder or for a left or right knee disorder. After securing any necessary release, the RO should obtain records of any treatment identified by the veteran, to include treatment records not currently of record from the University of Texas at Austin, Student Health Center, dated from June 1992 through the present. 2. The veteran should be afforded appropriate VA examinations in orthopedics and neurology to determine the nature and extent of his service-connected low back strain as well as any current left and right knee disabilities. 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 low back strain and that related to any nonservice- connected low back disorder, and to express a medical opinion as to the degree of probability, if any, that any low back disability is the direct result of the veteran's service-connected low back strain. The claims folder should be made available to the examiners prior to the examination. 3. The RO should readjudicate the veteran's claim of entitlement to an increased evaluation for low back strain as well as his claim of entitlement to service connection for the residuals of injuries to the left and right knees. The rating should reflect consideration of the provisions of 38 C.F.R. § 3.321(b)(1). 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 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. A decision on the issue of entitlement to service connection for tibial tenosynovitis is deferred pending completion of the developments requested pursuant to this REMAND. 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).