BVA9500091 DOCKET NO. 93-05130 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in San Juan, Puerto Rico THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim for service connection for hypertension. 2. Whether new and material evidence has been submitted to reopen a claim for service connection for a genitourinary disorder. 3. Entitlement to an increased rating for lumbar paravertebral myositis, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Puerto Rico Public Advocate for Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Milo H. Hawley, Counsel REMAND The veteran had active service from May 1979 to March 1989. A rating decision in February 1990 denied service connection for hypertension and status post lues, status post chancroid penile luetin. The veteran was notified of that decision and his right to appeal therefrom, but did not initiate an appeal within one year, and that decision became final. Subsequent thereto, the veteran has submitted additional evidence in an attempt to reopen his claim for service connection for these disabilities. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 1991 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. In a December 1992 statement submitted on VA Form 1-9, the veteran indicates that he desires to claim service connection for a leg condition. This issue is referred to the RO for its consideration. The issue of entitlement to service connection for bilateral flatfoot had also been developed for appellate review. A hearing officer's decision of October 1992 granted service connection for this disorder. A rating decision on the same day implemented the grant of service connection for flat feet and assigned a 30 percent rating for the disorder. On a VA Form 1-9 dated November 16, 1992, the veteran indicated the RO "erred" because he was seeking service connection for a "bones condition do [sic] to flat feet." The RO apparently construed this document as a notice of disagreement with the 30 percent rating assigned for flat feet and issued a supplemental statement of the case on that issue. We, however, construe the document dated November 16, 1992, as seeking secondary service connection for a leg disorder and, as is indicated above, that issue is referred to the RO for appro- priate action. We note further, in regard to the above, that the substantive appeal dated January 4, 1993, refers only to decision 2 on page 3 of the statement of the cased dated December 28, 1992. Decision 2 on page 3 of the supplemental statement of the case issued on that date pertains to a claim for service connection for labile hypertension. Furthermore, the issue of an increased rating for flat feet has not been certified on appeal. In light of the foregoing, we find that an issue of entitlement to an increased rating for flat feet is not properly before us, and it will not be addressed herein. It is contended that the veteran's service-connected low back disorder is more disabling than currently evaluated. VA outpatient treatment records, dated in 1992, reflect that the veteran was seen with complaints of low back pain. A current examination with respect to his low back disability has not been accomplished. The statement of the case notes that there is a prior rating action denying service connection for hypertension and status post lues, status post chancroid penile, but does not provide the veteran with laws and regulations concerning finality of rating decisions or indicate whether his claim has been reopened or decided on the basis of the failure to present new and material evidence which would warrant reopening that claim. Since the veteran's claim for an increased rating for a low back disorder is well grounded, the VA has a duty to assist in the development of facts pertinent to that claim. 38 U.S.C.A. § 5107 (West 1991); 38 C.F.R. § 3.103 (1993). Accordingly, the case is REMANDED to the RO for the following: 1. The RO should contact the veteran and inquire where he has been receiving medical care for his back from June 1992 until the present. The RO should contact the health care provider(s) identified and request copies of all medical records relating to treatment of the veteran's low back from June 1992 until the present. 2. The veteran should then be scheduled for a VA orthopedic examination to determine the nature and extent of his low back disorder. All necessary tests and studies should be accomplished, and all clinical manifestations should be reported in detail. The veteran's claims file should be made available to the examiner for review prior to the examination. 3. The RO should determine if the veteran has submitted new and material evidence to reopen his claims for service connection for hypertension and a genitourinary disorder. If the threshold determination concerning new and material evidence remains adverse, the legal provisions governing such a determination, including 38 U.S.C.A. § 5108 (West 1991) and 38 C.F.R. § 3.156(a) (1993), should be provided. If it is held that new and material evidence has been submitted to reopen either claim, the RO should conduct a de novo review of the record with respect to the issue(s). Following completion of the above, the RO should review the evidence and readjudicate the veteran's claims. Thereafter, if appropriate, the veteran and his representative should be furnished with a supplemental statement of the case and given the appropriate opportunity to respond. Thereafter, the claims file, including any evidence obtained, should be returned to this Board for further appellate review, if in order. No action by the veteran is required until he receives further notice. The purposes of this REMAND are to procure clarifying data and accord due process. The Board intimates no opinion, either legal or factual, as to the ultimate disposition of this appeal. GEORGE R. SENYK 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).