Citation Nr: 0003427 Decision Date: 02/10/00 Archive Date: 02/15/00 DOCKET NO. 95-34 146 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania THE ISSUE Entitlement to an increased rating for a low back disorder, currently rated 20 percent disabling. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Kimberly E. Harrison Osborne, Counsel INTRODUCTION The veteran had active military service from February 1943 to April 1946, and from October 1950 to November 1950. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 1995 rating decision by the RO which denied an increased rating for a low back disorder, rated 20 percent disabling. REMAND The Board finds that the veteran's claim for an increased rating for the service-connected low back disorder is well grounded, meaning plausible, and the file indicates there is a further VA duty to assist him in developing the claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. §§ 3.103, 3.159 (1999); Proscelle v. Derwinski, 2 Vet.App. 629 (1992). In April 1995, the veteran filed a claim for an increased rating for his service-connected low back disorder. He stated that his back disorder had worsened and that he had received treatment and had been examined at both Butler and University Drive VA Medical Centers (VAMCs). At his November 1995 hearing, the veteran also referred to apparent recent VA treatment. Although the RO obtained some VA outpatient records from 1999, it did not obtain all VA medical records pertinent to the period of the current claim. In the judgment of the Board, all such VA records should be obtained because they are constructively of record and may contain information vital to the veteran's claim. Bell v. Derwinski, 2 Vet.App. 611 (1992); Murincsak v. Derwinski, 2 Vet.App. 363 (1992). The veteran's last VA compensation examination for his low back disorder was in June 1995. In July 1998, the RO ordered another examination, but in September 1998, the VAMC reported that the veteran had twice failed to report for examination. Under the circumstances of this case, the veteran should be given one more opportunity to report for VA examination to evaluate his low back disorder. He should understand, however, that if, without good cause, he fails to report for VA examination, his increased rating claim will be denied in accordance with 38 C.F.R. § 3.655. In view of the foregoing, the case is REMANDED to the RO for the following actions: 1. The RO should ask the veteran to identify (names, addresses, dates) all VA and non-VA medical providers who have treated him for a low back disorder since 1994. The RO should obtain the related medical records, including all reports from the University Drive and Butler VAMCs. 2. Thereafter, the RO should schedule the veteran for another VA examination to determine the severity of the service- connected low back disorder. The claims folder should be provided to and reviewed by the examiner in conjunction with the examination. All findings necessary for rating the disability should be reported in detail. [The RO should remind the veteran that if, without good cause, he fails to report for the scheduled VA examination, his increased rating claim will be denied in accordance with 38 C.F.R. § 3.655.] 3. After the foregoing, the RO should review the veteran's claim for an increased rating for his service- connection low back disorder. If the veteran fails to report for VA examination, 38 C.F.R. § 3.655 should be applied. If the claim is denied, the veteran and his representative should be provided a supplemental statement of the case and given an opportunity to respond, and then the case should be returned to the Board for further appellate consideration. L. W. TOBIN Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. 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) (1999).