BVA9500514 DOCKET NO. 93-06 845 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to an increased evaluation for bilateral pes planus, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Susan S. Toth, Associate Counsel INTRODUCTION The veteran had verified active service from July 1944 to June 1946 and from December 1948 to May 1950. The veteran has not perfected the issue of new and material evidence to reopen his service-connection claim for a stomach disorder as secondary to prescription medication. Accordingly, the Board of Veterans' Appeals (Board) may not take jurisdiction over that issue. The veteran originally requested that the RO reopen the service-connection claim in the substantive appeal of March 1992, which was submitted with respect to the increased rating issue. The RO issued a rating decision in August 1992, whereby it was determined that new and material evidence sufficient to reopen the claim had not been submitted. In September 1992, the RO issued a supplemental statement of the case (SSOC) which addressed the issue of new and material evidence to reopen the service-connection claim. The SSOC was returned to the RO with a notation from the United States Postal Service that the forwarding order had expired. On October 30, 1992, the RO reissued the SSOC to the veteran's new address. Under the applicable criteria, if a SSOC covers issues that were not included in the original SOC, a Substantive Appeal must be filed with respect to those issues within 60 days in order to perfect an appeal with respect to the additional issues. The date of mailing will be presumed to be the same as the date of the SSOC for purposes of determining whether a response has been timely filed. 38 C.F.R. § 20.302(c) (1993). The record shows that no correspondence was received from either the veteran or the accredited representative until March 1993, when the representative submitted a VA Form 646. As a result, the appeal has not been perfected and the Board does not have jurisdiction over the new and material evidence issue. REMAND The Board may not make an informed decision on the veteran's appeal based on the medical evidence of record. The most recent VA examination report of November 1991 is now more than 3 years old and the information contained therein is insufficient for rating purposes. In that regard, the applicable criteria provide that if a report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes. 38 C.F.R. § 4.2 (1993). In the substantive appeal of March 1992, the veteran complained of calluses, swelling and extreme tenderness. These complaints were not evaluated during the VA examination of November 1991. The Board observes that the VA has a 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. § 3.303(a). The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the veteran which takes into account the records of prior medical treatment. Green v. Derwinski, 1 Vet.App. 121, 124 (1991). This is to ensure that the evaluation of the disability is a fully informed one. Since another VA examination is to be performed, the RO should procure recent medical treatment records prior to its conduct. The United States Court of Veterans Appeals (Court) has held that the duty to assist the claimant includes obtaining available medical records that are relevant to the claimant's appeal. Littke v. Derwinski, 1 Vet.App. 90 (1990). VA regulations require that disability determinations be based upon the most complete evaluation of the claimant's condition that can feasibly be constructed. For instance, 38 C.F.R. §§ 4.1 and 4.2 require that each disability be viewed in relation to its history, that there be emphasis upon the limitation of activity imposed by the disabling condition and that the disability be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.10 provides that in cases of functional impairment, evaluations must be based upon lack of usefulness of the affected part or systems and 38 C.F.R. § 4.40 requires consideration of functional disability due to pain. These requirements for evaluation of the complete medical history of the claimant's condition operate to protect claimants against adverse decisions based upon a single, incomplete or inaccurate report and they enable the VA to make a more precise evaluation of the level of disability and of any changes in the condition. Schafrath v. Derwinski, 1 Vet.App. 589, 594 (1991). Under the circumstances of this case, the Board finds that additional assistance is required. Accordingly, the case is REMANDED to the RO for the following: 1. The RO should contact the veteran and obtain the names and addresses of all health care providers where he has received treatment for pes planus from 1992 to the present. Thereafter, the RO should acquire copies of all available medical records, to include those from the VA Medical Center in Muskogee, Oklahoma, from March 1992 to the present. Once obtained, all records must be associated with the claims folder. 2. Thereafter, the veteran should be afforded a VA special examination in orthopedics or podiatry to determine the extent of pes planus. The examiner should review the entire claims file prior to the examinations. All indicated tests should be conducted. The veteran's service- connected disability should be evaluated in relation to its history with emphasis upon the limitation of activity imposed by the disabling condition in light of the whole recorded history and the report of the examination must contain a full description of the disability. The presence or absence of calluses accentuated pain, deformity and swelling should be specified for the record. The examiner should render an opinion as to what effect the disabilities have on the veteran's ability to work and the effect of pain upon employability should be discussed. 3. When the requested developments have been completed and reviewed by the RO, and in the event that the decision remains adverse to the veteran, a supplemental statement of the case should be prepared and furnished to him and to his representative. They should then be given an opportunity to respond. Thereafter, the case should be returned to the Board in accordance with current appellate procedures. The appellant need take no action until he is further informed. The purpose of this REMAND is to obtain additional information, and no inference should be drawn regarding the final outcome of this claim as a result of this action. C. W. SYMANSKI 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) (1993).