BVA9503691 DOCKET NO. 93-11 884 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to an increased (compensable) rating for hallux valgus of the right foot, post-operative. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD P. M. Lynch, Associate Counsel INTRODUCTION The veteran's active military service extended from October 1942 to January 1949, from March 1949 to June 1952 and from July 1952 to December 1957. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 1991 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky which continued a noncompensable rating for hallux valgus of the right foot, post-operative. A recent statement from the veteran refers to entitlement to a temporary total rating pursuant to paragraph 30 of the rating code. This issue has not been developed for appellate consideration is referred to the RO for appropriate action. REMAND The veteran's claim is "well grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). That is, he has presented a claim which is plausible. However, for the reasons that follow, it appears that the statutory duty to assist the veteran mandated by 38 U.S.C.A. § 5107(a) has not yet been fully met. The veteran contends that the RO erred in denying his claim for an increased rating for hallux valgus of the right foot. He argues that his disability is more severely disabling than currently evaluated. In support of his claim, the veteran has submitted VA medical records dated from October 1993 to November 1994 from the VA Medical Center in Lexington, Kentucky which indicate that he has had additional surgery for his service connected hallux valgus of the right foot. However, these records do not appear to be complete. The duty to assist requires that VA obtain the veteran's complete medical records. See Ferraro v. Derwinski, 1 Vet.App. 326 (1991). Therefore, the RO should make arrangements to obtain the veteran's complete medical records from this facility and associate them with the claims folder. Moreover, the medical records on file indicate that the veteran has had surgery and gone through the healing process. The duty to assist also includes a duty to develop facts when the record before the Board is clearly inadequate. See E.F. v. Derwinski, 1 Vet.App. 324 (1991); Littke v. Derwinski, 1 Vet.App. 90 (1990). In light of the evidence of record, the Board finds that it would be appropriate to afford the veteran a special VA orthopedic examination in order to determine the current nature and extent of his disability. It is also noted that on a previous VA examination in December 1992, the examiner noted symptomatology of the veteran's right foot which appears to be associated with both residuals of his lumbar disk disease and hallux valgus. The residuals of each disorder should be clearly identified on examination. To ensure that VA has met its duty to assist the claimant in developing the facts pertinent to the claim and to ensure full compliance with due process requirements, the case is REMANDED to the RO for the following development: 1. The RO should contact the veteran and request that he provide the names and addresses of all health care providers which have treated him for his right foot disorder since his discharge from service. The Board is particularly interested in treatment that the veteran received at the VA Medical Center in Lexington, Kentucky from December 1992 to present, including records with respect to any hospitalization and surgery that was performed on the veteran's right foot in 1994. 2. After securing the necessary releases, the RO should obtain all treatment reports and hospital treatment folders from all private health care providers listed by the veteran that are not already on file. The RO should also obtain all treatment records pertaining to the veteran's right foot from the VA medical center and outpatient clinic. If any records are not available, that fact and the reason(s) should be annotated in the claims folder. 3. Following the above, the veteran should be afforded an examination by a VA orthopedist. The report of examination should include a detailed account of all manifestations of right foot pathology found to be present. All necessary tests and x- rays should be conducted and the examiner should review the results of any testing prior to completion of the report. Special attention should be given to the presence or absence of pain, any limitation of motion, instability and weakness. The examiner should clearly identify which symptomatology is associated with the veteran's hallux valgus and which symptomatology is associated with any other disorder, including residuals of lumbar disk disease. The claims folder must be made available to and reviewed by the examiner prior to the examination. The orthopedist should provide complete rationale for all conclusions reached. 5. The RO should review the examination report and determine if it is adequate for rating purposes and in full compliance with this remand. If not, the report should be returned to the examiner for corrective action. Once the foregoing has been accomplished, and if the benefits are not granted to the satisfaction of the veteran, both the veteran and his representative should be furnished a supplemental statement of the case covering all the pertinent evidence, law and regulatory criteria. They should be afforded a reasonable period of time in which to respond. Thereafter, the case should be returned to the Board for further appellate consideration. The veteran need to take no action until so informed. The purpose of this REMAND is assist the veteran and to obtain clarifying information. JOAQUIN AGUAYO-PERELES 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 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) (1994).