BVA9505738 DOCKET NO. 92-21 972 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to an increased evaluation for traumatic myelitis with laminectomy of the lumbar spine, currently evaluated as 40 percent disabling. 2. Entitlement to a total evaluation based on individual unemployability due to service-connected disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Christine E. Puffer, Associate Counsel INTRODUCTION The veteran had active service from October 1967 to October 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from June 1991 and September 1994 rating decisions of the Department of Veterans Affairs (VA) Seattle, Washington, Regional Office (RO). The instant appeal was remanded by Board decision of October 1993 for further development. The claims folder has been returned to the Board after completion of the requested action. REMAND The veteran essentially contends that symptomatology associated with his service-connected spinal disability is more severely debilitating that his current evaluation reflects, and renders him unable to pursue gainful employment. In February 1995 written argument, the veteran's representative alleged that the veteran's service-connected lumbar spine disability has been improperly assessed, citing a January 1992 VA examination report. A review of that report reveals that the examiner concluded that the veteran's medical history had been mischaracterized as traumatic myelitis, rather than traumatic lumbar radiculitis. The examiner also noted a history of contusion of other lumbar roots at the time the veteran sustained a gunshot wound in service. The veteran's representative has requested that the Board issue a further remand in this case as he maintains that the veteran's spinal disability has been evaluated under an inappropriate diagnostic code based on an incorrect history of his injury. The veteran has reported experiencing various neurological and strength deficits in his left lower extremity. It is noted that he sustained numerous injuries as the result of a 50-foot fall from a tree in 1988. As it is unclear what relationship any noted deficits may bear to his service-connected lumbar spine disability versus the residuals of the fall, further evaluation is warranted. In a July 1991 statement, the veteran reported that he had received treatment at two VA Medical Centers (VAMC). In response to an RO request, the Portland VAMC indicated that it had forwarded its medical records to the Roseburg VAMC. The most recent treatment records received from the Roseburg VAMC are from April 1989. In light of the Board's decision to REMAND for the noted development, the Board concludes that it would result in the most effective utilization of VA resources if the RO also obtained copies of the veteran's most recent outpatient and hospitalization treatment records. It is noted that these documents would also serve to assist the VA compensation examiner. As the Board concurs with the veteran's representative that further examination of the veteran would be of assistance in assessing the veteran's current spinal disability and any related impairment to his industrial ability, this case is hereby REMANDED for the following development: 1. The RO should contact the Roseburg VA Medical Center and obtain copies of all records of outpatient and hospitalization treatment of the veteran since April 1989. All documents obtained should be associated with the claims folder. 2. After the above development has been completed, the veteran should be afforded orthopedic and neurological examinations for the purpose of ascertaining the etiology, nature and severity of all lumbar spine disorders that may be present. The examiner is requested to express an opinion as to the relationship between any left lower extremity symptomatology and deficit and any lumbar disability noted. Any and all tests deemed necessary by the examiner should be performed, but should include electromyography, a computed tomography scan and/or magnetic resonance imaging of the lumbosacral spine, if indicated. Comparison to prior studies should be conducted, where available. The examiner is requested to offer opinions as to, 1) whether any or all lumbar spine disorders noted are related to the veteran's service- connected lumbar spine disability, and, 2) the degree of impairment of the veteran to perform substantially gainful employment attributable solely to his service- connected disabilities. The rationale for all opinions expressed should be stated. The claims folder must be made available to the examiner for review prior to, and during, the examination. 3. Thereafter, the RO should readjudicate the veteran's claims on appeal for an increased rating for the lumbar spine disorder and for a total rating based on individual unemployability due to service- connected disability. In this regard, the RO should ascertain under which diagnostic code the veteran's service-connected lumbar disability is most appropriately rated. If either claim at issue remains denied, the RO should provide the veteran and his representative with a supplemental statement of the case that includes a discussion of pertinent laws, regulations and evidence. The veteran and his representative should be allowed the applicable period in which to respond to the supplemental statement of the case before the case is returned to the Board for further review. The purpose of this REMAND is to assist the veteran in the development of his claim, and the Board does not intimate any opinion as to the merits of this case, either favorable or unfavorable, at this time. No action is required of the veteran until he is notified. WARREN W. RICE, JR. 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).