BVA9505193 DOCKET NO. 93-16 401 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an increased evaluation for status postoperative fracture of the left ankle with traumatic arthritis, currently rated 20 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. L. Kennedy, Counsel INTRODUCTION The veteran served on active duty from October 1985 to October 1991. This appeal arises from a February 1992 rating decision of the Department of Veterans Affairs (VA), San Francisco, Regional Office. In that decision, service connection for status postoperative fracture of the left ankle with traumatic arthritis was granted, and evaluated as 20 percent disabling. The veteran's claims folder was subsequently transferred to the St. Petersburg, VA Regional Office (RO). The veteran has raised the issues of service connection for the residuals of an injury to the nose and a right knee disability. She has also indicated that she has filed a claim for VA vocational rehabilitation training, but has not received any information on her claim. Those issues are referred to the RO for appropriate action. REMAND The Board of Veterans' Appeals (Board) notes that the veteran was afforded a VA examination for rating purposes for the disability at issue in November 1992. In February 1993, the veteran requested that the VA forward copies of her records to her as she planned on seeking further treatment for her left ankle. By VA letter dated in July 1993, the veteran was notified that her records were being transferred to the Board for appellate review. Subsequently, additional VA medical evidence was received by the Board indicating that the veteran had received recent treatment of her left ankle, including surgery. 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 United States Court of Veterans Appeals has held that fulfillment of the VA's duty to assist the veteran includes providing him or her with a thorough and contemporaneous medical examination. Littke v. Derwinski, 1 Vet.App. 90, 92 (1990). The record indicates that the veteran has recently undergone arthrodesis of the left ankle, and recent VA medical records appear to indicate that the veteran's left ankle may have worsened since the last VA examination such that surgical intervention was deemed necessary. In light of this additional evidence, the Board has determined that the VA examination accomplished in November 1992 is inadequate for purposes of determining the current postoperative manifestations of the veteran's left ankle disability. The RO should ensure that the veteran is afforded a current VA examination for rating purposes. 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 above-referenced VA medical reports indicates that there may be additional VA treatment records, including postoperative treatment records from the Montgomery, Alabama, VA Medical Center. As these records may be useful in evaluating the veteran's claim, the RO should ensure that all available treatment records are associated with the records assembled for appellate review. The Board also notes that the veteran has indicated that a vocational rehabilitation and counseling folder may be available. The record on appeal does contain two VA Forms 28-1900 (Disabled Veterans Application for Vocational Rehabilitation), one dated in March 1992 and another dated in March 1993, and it is indicated that at least with respect to the March 1992 application, a counseling file had been made. The RO should ensure that this folder is 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 obtain any available treatment records from the Montgomery, Alabama VA Medical Center dated from July 1994 through the present. 2. The RO should associate any VA vocational rehabilitation and counseling folders which may be available with the records assembled for appellate review. 3. The RO should schedule the veteran for a VA orthopedic examination to assess the nature, severity, and manifestations of the veteran's left ankle disability. The examination should be conducted in accordance with the guidelines provided in the Physician's Guide for Disability Evaluation Examinations. All related complaints should be investigated and those which have a medical cause should be covered by a definite diagnosis. All indicated tests should be conducted and any additional indicated special examinations should be accomplished. The report should summarize all significant positive findings, with emphasis upon the limitation of activity, to include interference with employability, and any functional loss due to pain, imposed by the disorder. The examiner should be requested to describe the nature and extent of ankylosis of the left ankle joint, if any. The claims folder should be made available to the examiner prior to any examination. 3. Thereafter, the RO should readjudicate the veteran's claim. The rating should reflect consideration of the applicability of 38 C.F.R. § 3.321(b)(1). The veteran and her representative should then be provided a supplemental statement of the case which includes a summary of additional evidence, citation of the provisions of 38 C.F.R. § 3.321(b)(1), and the reasons for the decision. The veteran and her 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. GARY L. GICK 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 deter- mination. 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).