BVA9501033 DOCKET NO. 93-04 794 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to an increased rating for a back disability, currently rated as 10 percent disabling. REPRESENTATION Appellant represented by: Military Order of the Purple Heart WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD J. Connolly, Associate Counsel INTRODUCTION The veteran had active service from November 1940 to October 1945. This matter came before the Board of Veterans' Appeals (Board) on appeal from an April 1991, rating decision of the Los Angeles, California, Regional Office (RO) of the Department of Veterans Affairs (VA). The notice of disagreement was received in August 1991. The statement of the case was sent to the veteran in September 1991. The substantive appeal was received in October 1991. The veteran testified at a personal hearing at the RO in April 1992. The hearing officer issued a decision in October 1992 which confirmed and continued the denial of entitlement to an increased rating for a back disability, and denied entitlement to service connection for balance problems and right leg weakness, secondary to service-connected back disability. In November 1992, the RO issued a supplemental statement of the case which addressed the denial of the two service connection issues. However, the Board observes that this procedure was not proper. Pursuant to 38 U.S.C.A. § 7105 (West 1991) and 38 C.F.R. §§ 20.200, 20.201 (1993), the veteran must be notified of a decision following which he/she has one year to file a notice of disagreement. Therefore, the Board refers the issues of entitlement to service connection for balance problems and right leg weakness, secondary to service-connected back disability for the promulgation of a rating decision and for the RO to send the veteran notice thereof and to inform the veteran that he has one year from the date of that notice to file a notice of disagreement. In addition, at his personal hearing, the veteran related that he has not worked in many years. Although the veteran has not specifically raised the issue of entitlement to a permanent and total disability rating for pension purposes, a claim for compensation is also considered a claim for pension under 38 C.F.R. § 3.151 (1993). Ferraro v. Derwinski, 1 Vet.App. 326, 333 (1991). The United States Court of Veterans Appeals (Court) has stated that the issue of entitlement to non service-connected pension must be developed where the appellant has wartime service and alleges unemployability. Pritchett v. Derwinski, 2 Vet.App. 116 (1992) citing Ferraro. Therefore, the Board refers this issue to the RO for appropriate development. REMAND The veteran was granted entitlement to service connection for hypertrophic changes of the first and second lumbar vertebrae with probable protruded intervertebral disc in an October 1947 rating decision. Subsequently, in a February 1956 rating decision, the veteran's back disability was recharacterized as chronic lumbosacral strain. Currently, the veteran describes the symptoms of his back disability to include shooting pains and paresthesia in the right leg. He reports that he is unable to stand for prolonged periods and suffers from severe discomfort. Given the fact that the veteran was initially granted service connection for probable protruded intervertebral disc disorder which was recharacterized as lumbosacral strain, the Board finds that the veteran should be afforded a VA examination by an orthopedist as well as a neurologist. This examination should resolve what is the exact nature of the veteran's back disability and the manifestations thereof. The current back symptomatology should be distinguished from the residuals of any other disability of the veteran including Parkinson's disease and residuals of strokes. The VA has a duty to assist in the development of the claim. 38 U.S.C.A. § 5107 (West 1991). The duty to assist includes additional VA examination by a specialist, when recommended. Hyder v. Derwinski, 1 Vet.App. 221 (1991). In Schafrath v. Derwinski, 1 Vet.App. 589, 592 (1991), the Court of Veterans Appeals stated that functional loss due to pain is to be rated at the same level as functional loss where flexion is impeded pursuant to 38 C.F.R. § 4.40 (1993). The examiners should specifically address painful motion and the application of 38 C.F.R. § 4.40 (1993) in light of the veteran's complaints of severe pain due to his back disability. The Board further observes that the veteran has referred to several records which have not been presented or secured. In particular, in correspondence received in December 1991, the veteran referred to treatment rendered at the Kaiser Permanente Hospital in Fontana, California; however, medical reports from that facility are not of record. In addition, although the veteran testified at his personal hearing at the RO in April 1992 that he has received treatment from Kaiser Permanente. The Board also notes that the veteran has been treated in the past at the VA Hospital, Loma Linda, California. Therefore, records from these facilities should be requested and obtained. The VA's duty to assist includes obtaining copies of all pertinent records including those of both VA and private facilities. Murphy v. Derwinski, 1 Vet.App. 78 (1990). Under the circumstances of this case, additional development is necessary in order to fulfill the VA's duty to assist. Accordingly, this matter is REMANDED for the following action: 1. The RO should obtain and associate with the claims file copies of all inpatient and outpatient clinical records, which are not already in the claims file, of the veteran's treatment at the VA Hospital, Loma Linda, California. 2. The RO should contact and request copies of all clinical records of the veteran which are not already in the claims file, from Kaiser Permanente. These records should be associated with the claims file. 3. The veteran should be afforded a VA examination by an orthopedist and a neurologist to determine the current nature, extent, and manifestations of the veteran's back disability. In the reports of examinations, the examiners should set forth the specific manifestations of the veteran's service-connected back disability and, if there are no current manifestations, the examiners should so state. Range of motion should be set forth in degrees. All indicated x-rays and laboratory tests should be completed. The claims file, to include all evidence added to the record pursuant to this REMAND, should be made available to the examiners prior to the examination. The examiners should set forth separately the veteran's back symptomatology from the residuals of any other disability of the veteran including Parkinson's disease and residuals of strokes. 4. The RO should readjudicate the veteran's claim for entitlement to an increased rating for a back disability. If the action taken is adverse to the veteran, he and his representative should be furnished a supplemental statement of the case that contains a summary of the relevant evidence and a citation and discussion of the applicable laws and regulations. He should also be afforded the opportunity to respond to that supplemental statement of the case before the claim is returned to the Board. No action is required of the veteran until further notice. The Board expresses no opinion, either factual or legal, as to the ultimate determination warranted in this case pending completion of the requested development. E. M. KRENZER 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. (CONTINUED ON NEXT PAGE) 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).