BVA9407666 DOCKET NO. 93-03 523 ) DATE ) ) ) THE ISSUES 1. Entitlement to service connection for a right ankle disability. 2. Entitlement to service connection for a right knee disability secondary to a service connected disability. 3. Entitlement to an increased rating for service connected left ankle disability, currently evaluated as noncompensable. REPRESENTATION Appellant represented by: AMVETS ATTORNEY FOR THE BOARD K. J. Alibrando, Associate Counsel INTRODUCTION In August 1984, the veteran retired after more than 20 years of active duty service. This appeal arises from a December 1990 rating decision of the Detroit, Michigan Regional Office (RO) which denied service connection for a right ankle disability and for a right knee disability secondary to a right ankle disability; and from an August 1992 rating action which denied an increased rating for a service connected left ankle disability. REMAND The veteran contends that he suffered several injuries to his right ankle while in active service. He further contends that he has developed a right knee disability as a result of his right ankle disability. The veteran also contends that his service connected status postoperative old fracture deformity of the left ankle has increased in severity and warrants a higher evaluation. A review of the record indicated that the veteran's complete service medical records have not been obtained. VA Form DD 214 shows that the veteran retired in August 1984 with over 20 years of active service. In March 1993, the veteran's representative argued that the veteran's service dates were from February 1963 to February 1965; September 1965 to September 1968; November 1968 to November 1975; and May 1976 to August 1984, with all service in the United States Army. It was argued that the case should be remanded to obtain the veteran's complete service medical records. The record shows that the RO's requests for the veteran's service medical records listed his service dates as November 1968 to November 1975. Additionally, in September 1993, the veteran submitted copies of service medical records, not included in the claims file, showing treatment for a right ankle injury in 1983 and 1984. 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). In May 1991, the veteran asserted that he had received treatment for his service connected left ankle disability from the Ann Arbor, Michigan VA Medical Center. Those records have not been obtained. Fulfillment of the statutory duty to assist includes conducting a thorough and contemporaneous medical examination, one which takes into account the record of prior medical treatment, so that the evaluation of the clinical disability will be a fully informed one. Green v. Derwinski, 1 Vet.App. 121 (1991). 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 make another attempt to obtain copies of all of the veteran's service medical records. The periods of active service are February 1963 to February 1965, September 1965 to September 1968, November 1968 to November 1975 and May 1976 to August 1984 with all service in the United States Army. All records obtained should be associated with the claims folder. 2. The RO should contact the veteran and request that he submit copies of all service medical records in his possession. He should also be advised of his right to furnish alternative forms of evidence per M21-1, paragraphs 4.25, 4.29. All records obtained should be associated with the claims folder. 3. The RO should obtain copies of all Ann Arbor, Michigan VA medical center inpatient and outpatient treatment records concerning treatment of the veteran's disabilities. The RO should also obtain all current outpatient treatment records from the Allen Park, Michigan VA Medical Center from May 1992 to the present time. All records obtained should be associated with the claims folder. 4. After the above mentioned records have been obtained, the veteran should be afforded a special VA orthopedic examination to determine the nature and extent of his right ankle, right knee and left ankle disabilities. Such tests as the examiner deems necessary should be performed. The claims folder should 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 left ankle disability upon the veteran's ordinary activity and on how the disability impairs him functionally. The examiner should also indicate if possible the likely etiology of any right ankle and/or right knee disability found to be present. 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. BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 * D. W. DATLOW, M. D. (Member Temporarily Absent) C. W. SYMANSKI (Continued Next Page) *38 U.S.C.A. § 7102(a)(2)(A) (West 1991) permits a Board of Veterans' Appeals Section, upon direction of the Chairman of the Board, to proceed with the transaction of business without awaiting assignment of an additional member to the Section when the Section is composed of fewer than three Members due to absence of a Member, vacancy on the Board or inability of the Member assigned to the Section to serve on the panel. The Chairman has directed that the Section proceed with the transaction of business, including the issuance of decisions, without awaiting the assignment of a third Member. 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).