BVA9502453 DOCKET NO. 92-08 994 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to an increased rating for arthritis of the lumbar spine, currently evaluated as 40 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD P. Greif, Associate Counsel INTRODUCTION The veteran had active military service from March 1941 to January 1946. This matter came before the Board of Veterans' Appeals (Board) on appeal from a February 1991 rating decision from the St. Paul, Minnesota, Regional Office (RO) of the Department of Veterans Affairs (VA). In that rating decision the RO denied entitlement to an increased rating for arthritis of the lumbar spine (low back disorder) and continued the 40 percent evaluation which had been in effect since March 1987. The case was remanded by the Board for further development in May 1991 and July 1992. In September 1993, the Board confirmed the RO denial of an increased rating for arthritis of the lumbar spine and entitlement to an extension of a temporary total rating under 38 C.F.R. § 4.30. The veteran appealed to the United States Court of Veterans Appeals (Court) with respect to the issue of an increased rating for the low back disorder. In an October 1994 order, the Court vacated the Board's September 1993 decision only as to the increased rating issue and remanded the case for further development in compliance with a joint motion for remand. [citation redacted]. Following the Court's remand, the veteran submitted a December 1994 statement in which he appeared to raise the issues of service connection for arachnoiditis and entitlement to a total disability rating based on individual unemployability. However, since those issues are not currently on appeal they are referred to the RO for action deemed appropriate. REMAND As noted, the Court remanded the case to the Board for further development. Specifically, the Court instructed the Board to accord the veteran updated VA orthopedic and neurology examinations. In addition, on the veteran's December 1994 statement he indicated that he received medical treatment from two private doctors following his August 1991 low back surgery. However, it does not appear that all the records from his private physicians have been obtained. These records are pertinent to the current claim and should be associated with the claims folder. The Court has held that the duty to assist the veteran in obtaining and developing available facts and evidence to support his claim includes obtaining evidence from any source, and obtaining adequate VA examinations. Littke v. Derwinski, 1 Vet.App. 90 (1990). This duty also includes obtaining available evidence to support the claim. Murphy v. Derwinski, 1 Vet.App. 78 (1990). In view of the foregoing, the Court found that further development was in order to assist the veteran in the development of his claim. Therefore, the case is REMANDED to the RO for the following action: 1. The veteran should be requested to furnish the names of all health care providers who have treated him for his service-connected low back disorder since August 1989. After having obtained the appropriate releases, the RO should make the necessary arrangements in order to obtain copies of all private medical records not already on file, concerning treatment of the veteran. The Board is particularly interested in medical records from Drs. Gordon E. Chatterton, D.C. and Sharon Woods, M.D. The RO should also obtain copies of any VA outpatient reports, not already on file, concerning treatment of this veteran. If any records are not available, that fact should be annotated in the claims folder. 2. After the foregoing is accomplished and associated with the claims file, the veteran should be accorded orthopedic and neurologic examinations to determine the nature and extent of the service-connected low back disorder. The Court has specified that the examinations must fully comport with the Physician's Guide for Disability Evaluation Examinations. All necessary tests and X-rays should be conducted and the results reviewed by the examiners prior to the completion of their reports. The reports of examination should include a detailed account of all manifestations of lumbosacral pathology found to be present. Special attention should be given to any limitation of motion, pain, the presence or absence of muscle spasm on extreme forward bending, neuropathy and instability. The report should also include a detailed description of all neurologic pathology resulting from the low back disorder. The examiners' attention is directed to the fact that service connection has been established for post-traumatic arthritis of the left knee and scars of the left leg with damage to Muscle Group XI. The physicians must specify those findings which are the result of the low back disorder and distinguish them from any findings due to the other service-connected disorders. All ranges of back motion should be reported in degrees. The complete claims folder and a copy of this remand should be made available and reviewed by the examiners prior to the examinations. The reports of examinations should include a complete rationale for all conclusions reached. 3. The RO should review the reports of examination and determine if they are adequate for rating purposes and in compliance with this Remand. If not, they should be returned for corrective action. 4. After the foregoing, the RO should again formally adjudicate the issue of entitlement to an increased rating for arthritis of the lumbar spine. Following completion of these actions and, if the decision remains unfavorable, the veteran and his representative should be provided with a supplemental statement of the case and afforded a reasonable period of time in which to respond. Thereafter, in accordance with the current appellate procedures, the case should be returned to the Board for completion of appellate review. No action is required of the veteran until further notice is issued. JAN DONSBACH 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).