BVA9500122 DOCKET NO. 93-02 983 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to an increased rating for bronchiectasis, right upper lobe, with lobectomy and bronchitis, currently evaluated as 60 percent disabling. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD K. J. Alibrando, Associate Counsel INTRODUCTION The veteran served on active duty from December 1959 to January 1963. This appeal arises from a September 1989 rating decision in which the RO denied increased rating for bronchiectasis of the right upper lobe with lobectomy and chronic bronchitis. In his May 1990 notice of disagreement, the veteran raised the issue of a total disability rating under 38 C.F.R. § 4.16(a). As that issue has not been properly developed on appeal and is not inextricably intertwined with the issue before the Board, it is referred to the RO for appropriate action. REMAND The veteran contends that his service connected lung disability has increased in severity and warrants a higher evaluation. A VA examination was conducted in June 1992. However, the examiner indicated that the veteran's claims folder was not available for review. At the time of that examination, the veteran reported that he was receiving treatment at the Hines VA Medical Center and at Cook County Hospital. Those records have not been obtained. The Board also notes that during the prior VA examination, conducted in August 1989, the veteran reported that he was receiving treatment from his private physician. Those records were not obtained. The VA has a duty to assist the veteran in the development of facts pertinent to his claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.103(a) (1993). The U.S. Court of Veterans Appeals has held that the duty to assist the veteran in obtaining and developing available facts and evidence to support his claim includes obtaining treatment records to which the veteran has referred. Littke v. Derwinski, 1 Vet.App. 90 (1990). Fulfillment of the statutory duty to assist includes conducting a thorough and contemporaneous medical examination, one which takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one. Green v. Derwinski, 1 Vet.App. 121 (1991). The RO should obtain all private and VA medical records not already contained in the claims folder. Thereafter, the veteran should be scheduled for a VA examination. Finally, the VA has a duty to acknowledge and consider all regulations which are potentially applicable to the assertions and issues raised in the record, and to explain the reasons and bases for its conclusion. Schafrath v. Derwinski, 1 Vet.App. 589 (1991). These regulations include, but are not limited to, 38 C.F.R. §§ 4.1 and 4.2 (1993). Also, 38 C.F.R. § 4.10 (1993) provides that, in cases of functional impairment, evaluations must be based upon lack of usefulness of the affected part or systems, and medical examiners must furnish, in addition to the etiological, anatomical, pathological, laboratory, and prognostic data required for ordinary medical classification, full description of the effects of the disability upon the person's ordinary activity. 38 C.F.R. §4.40 (1993) requires consideration of functional disability due to pain and weakness. 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 to enable the VA to make a more precise evaluation of the level of the disability and any changes in the condition. Under the circumstances of this case, we find that additional development is required. Accordingly, the case is REMANDED to the RO for the following: 1. The RO should contact the veteran and request him to furnish the names and addresses of all health care providers from whom he has received treatment for his lung disability from 1989 to the present time, to include all private physicians and the Cook County Hospital. Where appropriate, consent forms for the release to the VA of any private medical records should be obtained from the veteran. Thereafter, the RO should obtain legible copies of all identified treatment records and associate them with the claims folder. 2. The RO should obtain copies of all records concerning treatment of the veteran's lung disability from April 1990 to the present time from the VAMC, Hines. All records obtained should be associated with the claims folder. 3. After the above mentioned records have been obtained, the veteran should be afforded a special VA pulmonary examination to determine the nature and extent of his lung disability. Such tests as the examiner deems necessary should be performed, to include pulmonary function tests. The claims folder must be made available to the examining physician prior to the examination so that he/she may review pertinent aspects of the veteran's medical history and comment upon the effects of the veteran's service connected disability on ordinary activity and on how the disability impairs him functionally. When the above developments have been completed, the case should be reviewed by the RO. If the decision remains adverse to the appellant, he and his representative should be afforded a supplemental statement of the case and afforded a reasonable opportunity to respond. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration. I. S. SHERMAN 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).