BVA9504989 DOCKET NO. 93-14 729 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Fort Harrison, Montana THE ISSUES 1. Entitlement to an increased rating for service-connected residuals of a herniated intervertebral disc, post-operative laminectomy, currently rated as 40 percent disabling. 2. Entitlement to a total rating for compensation purposes due to individual unemployability by reason of service-connected disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD Richard E. Coppola, Associate Counsel INTRODUCTION The veteran had active service from December 1950 to December 1953, and again from September 1954 to July 1968. This matter came before the Board of Veterans' Appeals (Board) on appeal from a rating decision of September 1992 from the Fort Harrison, Montana, Department of Veterans Affairs (VA) Regional Office (RO), which denied a rating in excess of 40 percent for the veteran's service-connected low back disorder and a total rating due to individual unemployability by reason of service- connected disability. REMAND The service medical records show that the veteran underwent an L4-L5 partial hemilaminectomy secondary to a herniated nucleus pulposus in August 1966. In February 1969, the RO granted service connection for the post-operative residuals and assigned a 40 percent disability rating. At the personal hearing the veteran testified that his post- operative symptoms had increased in severity. Transcript, pp. 2- 4 (Jan. 1993). As a result, the veteran underwent a VA neurology examination in February 1993. The physician stated that unless pain was the sole criterion it would be difficult to establish progression or recurrence of the disc herniation based on his examination and evaluation. The physician commented that it would be helpful to have the veteran's previous medical records for comparison purposes in assessing the veteran's neurological status. Subsequently, the veteran forwarded medical records to the Board which show that in May 1994 he underwent a bilateral L4 and L5 laminectomy with excision of extensive adhesions, and an L4-L5-S1 fusion utilizing a right posterior iliac bone graft. The veteran indicated that he wanted this evidence considered in connection with his claim. The RO has not had an opportunity to consider this evidence. Clearly, a question has been raised regarding the current severity and symptomatology caused by the veteran's service-connected low back disability. In his January 1992 application for increased benefits, the veteran stated that he has been considered 100 percent disabled by the Social Security Administration (SSA). The representative noted in his March 1994 written argument to the Board that the records associated with that determination have not been obtained. These records are relevant to the issues on appeal, particularly the issue of unemployability. In conjunction with his claim for unemployability, the veteran testified that since leaving his security guard position he had attempted to obtain several employment positions and had even performed some painting services. Tr., at 9-10. The extent to which the back disability currently interferes with employment activities is unclear. Under the circumstances, the Board finds that additional development of the evidence is necessary. Accordingly, the case is REMANDED for the following actions: 1. The veteran should specify whether he has received any inpatient and outpatient treatment for his service-connected low back disability since May 1994. After obtaining any needed authorization from the veteran, the RO should obtain copies of all these records. Any evidence obtained should be associated with the claims folder. 2. The RO should obtain a copy of the Social Security Administration disability determination and the medical records used in that decision which are not currently part of the record. Any evidence obtained should be made part of the claims folder. 3. The veteran should then be afforded special VA orthopedic and neurologic examinations to determine the nature and extent of all residuals of the service- connected low back disorder. The examinations should include a statement of the veteran's employment history since leaving his security guard position in August 1991, including positions denied and/or any time lost from work due to the service-connected low back disorder. The examinations should be conducted in accordance with the Physician's Guide for Disability Evaluation Examinations. All necessary tests should be performed. The physicians must be provided the claims folder with a copy of this remand decision for review prior to examination so the disability may be considered in relation to its medical history. If there is an associated neurologic deficit of the lower extremities, the neurology examiner should specify whether these symptoms are persistent and compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to the diseased disc space in this case. The extent and duration of periods of relief, if any, should be described. The examiners should comment on the extent to which the veteran's employment activities are restricted by the low back disorder. 4. When the above development has been completed, the case should be reviewed by the RO. The rating decision should reflect consideration of all potentially applicable criteria, to include consideration of the applicability of 38 C.F.R. § 3.321(b)(1). If the decision remains adverse to the veteran in any way, he and his representative should be furnished with a supplemental statement of the case which summarizes the pertinent evidence, fully cites the applicable legal provisions not previously provided, and reflects detailed reasons and bases for the decision. They should then be afforded the applicable time period to respond. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if appropriate. The veteran need take no action until he is further informed. The purpose of this REMAND is to obtain additional information and to ensure due process of law. No inference should be drawn regarding the final disposition of the claim as a result of this action. CHARLES E. HOGEBOOM 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 action has been taken in accordance with the Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 303, 108 Stat. 4645, ___ (1994), and 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).