BVA9503201 DOCKET NO. 93-05 587 ) 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 evaluated as 10 percent disabling. 2. Entitlement to an increased evaluation for bilateral pes planus with hallux valgus and hammer toes, postoperative, currently evaluated as 10 percent disabling. (The issue of whether the veteran's Chapter 31 benefits were properly discontinued effective July 7, 1992 is the subject of a separate action by the Board.) REPRESENTATION Appellant represented by: AMVETS WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Suzie St. Vil, Associate Counsel INTRODUCTION The veteran served on active duty from October 1974 to October 1976 and from January 1978 to January 1980. He has been represented throughout his appeal by AMVETS. This matter came before the Board of Veterans' Appeals (hereinafter Board) on appeal from rating decisions of the Waco, Texas Regional Office (RO). By a rating action of March 1992, the RO denied the veteran's claim for an increased rating for low back strain. The notice of disagreement with this determination was received in April 1992. The statement of the case was issued in September 1992. A substantive appeal (VA Form 1-9) was received in September 1992, wherein the veteran requested a personal hearing. A Department of Veterans Affairs (VA) examination was conducted in October 1992. Thereafter, a rating action of October 1992 confirmed the 10 percent evaluation assigned for the veteran's service-connected bilateral foot disorder. A supplemental statement of the case, addressing both issues of increased rating, was sent to the veteran in November 1992. The veteran, accompanied by his representative, appeared and offered testimony at a hearing before a hearing officer at the RO in December 1992. A transcript of the hearing is of record. Another VA Form 1-9 was received in January 1993. The hearing officer's decision was entered in February 1993 confirmed the previous denials of the veteran's claim for increased ratings for low back strain and bilateral foot disorder. The appeal was received at the Board in March 1993. REMAND The veteran essentially contends that the severity of his service-connected low back strain and bilateral foot disorder is not adequately reflected by the currently assigned ratings. The veteran maintains that he has not been afforded a proper examination to determine the severity of his disabilities. The service representative further maintains that the evaluations assigned for the veteran's disabilities are based solely on medical records rather than complete VA examinations. At the time of his personal hearing at the RO in December 1992, the veteran testified that he had continuing aches and pains in his lower back and that he did a lot of lifting during the course of his employment. The veteran also testified that he was receiving treatment from a Dr. Clark; he stated that he was taking 800 mg of Motrin and doing exercises to relieve pain in the back. The veteran further testified that following the surgery on his feet in 1982, they became worse, with constant swelling, especially in the big toe which was subject to infections, and significant problems walking. He stated that he was unable to remain on his feet for any prolonged period of time. According to history recorded in the record, this surgery apparently was performed sometime during 1992 at the Muskogee, Oklahoma VA Medical Center (VAMC). No record of this surgery is in the claims folder. The veteran's representative has advanced a claim for a temporary total disability rating pursuant to 38 C.F.R. § 4.30 (1993), based on this surgery. As this claim is inextricably intertwined with the issue of entitlement to an increased rating for the foot disability, it should be adjudicated by the RO. In light of the arguments advanced by and on behalf of the veteran, and in keeping with VA's duty to assist the veteran in the development of facts pertaining to his claim, 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.103(a) (1993), the Board believes that further development of the record, including an up- to-date VA examination, is needed for evaluation of the veteran's claims. Accordingly, this case is hereby REMANDED to the RO for the following actions: 1. The veteran should be asked to furnish the names and addresses of any private doctors and/or hospitals, other than those previously submitted, who have provided treatment for his service-connected disorders. Copies of any clinical records should be obtained and made part of the record. 2. All up to date VA outpatient treatment records and/or inpatient records, relating to treatment accorded the veteran for his service-connected disabilities should be obtained and made part of the record. In this regard, after obtaining clarifying information from the veteran, the RO should obtain the complete clinical reports of the 1992 foot surgery which was apparently performed at the Muskogee VAMC. The records obtained should include any reports showing postoperative recommendations made following the surgery. 3. The veteran should be afforded special orthopedic and podiatry examinations in order to determine the nature and extent of his low back and bilateral foot disorders. It is requested that the report of the examinations should contain detailed descriptions of the veteran's symptomatology and all clinical findings. Regarding the veteran's low back disability, the examiner should review the veteran's history of post-service low back injuries, noted in the record as having occurred in October or November 1989 and November 1990, and distinguish, to the extent possible, those manifestations attributable to the service-connected low back strain from those which are attributable to the post-service injuries. It is also requested that, prior to that examination, the examiner be given the opportunity to review the veteran's claims folder. 4. Thereafter, the case should again be reviewed by the RO and appropriate action taken. This should include consideration of the claim for a convalescent rating based on the reported 1992 foot surgery. The veteran should be notified of the determination in this regard and of his right to appeal such determination. Appropriate action should then be taken in the event that he pursues an appeal. If the determination regarding any issue on appeal remains adverse to the veteran, both he and his representative should be furnished a supplemental statement of the case, which also addresses any new evidence and discusses all pertinent laws and regulations. An opportunity to respond should be given. The case should then be returned to the Board for further appellate consideration, if otherwise in order. No action is required of the veteran until he receives further notice. By this REMAND the Board intimates no opinion, either legal or factual, as to the ultimate determination warranted in this case. The purpose of this REMAND is to develop the record and to afford the veteran due process of law. D. C. SPICKLER 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. (CONTINUED ON NEXT PAGE) 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 remand 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).