BVA9503145 DOCKET NO. 93-12 420 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUE Entitlement to service connection for a back disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Mark J. Swiatek, Counsel REMAND The veteran had active service from June 1981 to January 1991. This matter comes before the Board of Veterans' Appeals (Board) from a November 1991 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. A review of the record discloses that in June 1991, the RO granted service connection for a right knee disability, identified as chondromalacia, based on aggravation of a prior injury. In August 1991, the veteran submitted a claim seeking secondary service connection for a back disability. On the October 1991 VA examination, the diagnoses included thoracolumbar pain. At the November 1992 hearing, the veteran testified regarding her back complaints. The VA outpatient treatment records received following the hearing show a diagnosis of lumbosacral strain in November 1992. In December 1992, the hearing officer, in affirming the RO decision, held that back complaints had preexisted service and were not aggravated by service. In January 1994, the representative presented written argument to the Board seeking the return of the case to the RO for further development. The Board observes that in the November 1991 decision, the rating board held, in essence, that the veteran had had no more than acute transitory back complaints during service. The June 1992 supplemental statement of the case that initially addressed service connection contained laws and regulations appropriate to direct service connection. Following the hearing officer's decision, a December 1992 supplemental statement of the case advising the veteran of the hearing officer's determination referred to the previous statement of the laws and regulations and did not included the law and regulations pertinent to claims for service connection based on aggravation. In view of the decision of the United States Court of Veterans Appeals in Crowe v. Brown, No. 93-550 (U.S. Vet. App. Dec. 20, 1994), the Board finds that additional development is required in order to provide a record upon which an informed determination of the issue on appeal can be made. A copy of this decision is enclosed. Accordingly, the case is REMANDED to the RO for the following action: 1. The veteran should be contacted and asked to provide the names and addresses of all VA and non-VA health care providers who have treated her for any back disability since her separation from active service. She should also be requested to identify those physicians who treated her at any time for such disability prior to service. After obtaining the appropriate release for medical information, the RO should request all records which have not been previously obtained and associate them with the claims folder. 2. Thereafter, the veteran should be scheduled for an examination by a board- certified orthopedist, if available, to determine the nature and extent of any back disability found. The examiner is requested to review the claims folder and provide an opinion regarding the following questions: (1) Did a history of back complaints, in the absence of medical records showing treatment for, or a diagnosis of, a back disability prior to service conclusively establish that the veteran had a back disability upon entering service; (2) If so, was there a worsening of the veteran's back disability during service; and (3) if so, is there clear and unmistakable evidence that the increase in severity was due to the "natural progress" of the disease; (4) or did the back symptoms in service rendered the veteran more susceptible to back symptoms later and; (5) could a worsening of the condition reasonably have been expected to have been found at the time of the separation examination. If the first question is answered in the negative, the examiner is requested to provide an opinion regarding etiologic significance, if any, of the back complaints prior to and during service, and the degree of probability the back disability currently found is causally related to the service-connected right knee disability. The examiner should provide a rationale for all opinions and conclusions expressed. 3. Thereafter, the RO should readjudicate the issue on appeal to include consideration of Crowe v. Brown. If the benefit sought on appeal is not granted, a supplemental statement of the case should be issued and the veteran and her representative provided the applicable period in which to respond. Thereafter, the case should be returned to the Board for further consideration, if in order. By this REMAND, the Board intimates no opinion as to the final outcome warranted. No action is required of the veteran until she is notified by the RO. 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. Since this action has been taken in accordance with the Veterans Benefits Improvement 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. 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).