BVA9508042 DOCKET NO. 93-15 589 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an increased rating for service-connected residuals of low back strain, currently rated as 20 percent disabling. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Richard E. Coppola, Associate Counsel INTRODUCTION The veteran had active service from September 1980 to March 1989. This matter came before the Board of Veterans' Appeals (Board) on appeal from a rating decision of August 1991 from the Waco, Texas, Department of Veterans Affairs (VA) Regional Office (RO), which denied a rating in excess of 20 percent for service- connected residuals of low back strain. REMAND The veteran underwent a VA compensation examination in December 1992. The physician reported mild paravertebral muscle spasm involving the lumbar spine, limitation of motion of the spine and objective pain on motion. The diagnosis was chronic lumbosacral strain. In his substantive appeal, the veteran argued that his residual symptoms have increased in severity and that medication no longer relieves his pain symptoms. He stated that his pain symptoms have spread to his mid-thoracic area, and that he has had several occasions when he felt something snap in his back rendering him temporarily unable to move. VA outpatient records reflect that the veteran was seen in February 1993 for complaints that "something popped" in the right lower back. A questionable decrease in lower extremity muscle strength secondary to pain and an increase in deep tendon reflexes were observed. In a statement in support of his claim which was received in March 1993, the veteran stated that the residuals associated with his service-connected disability have increased in severity and his condition has deteriorated. The veteran and his representative assert that there has been a material increase in severity of the service-connected disability, and the VA has a duty to assist the veteran by providing a thorough and contemporaneous medical examination of the disability at issue. Under the present 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 when and where he has received inpatient and/or outpatient treatment for his service- connected low back strain since February 1993. After obtaining any needed authorization from the veteran, the RO should request copies of any such records. Any evidence obtained should be associated with the claims folder. 2. The veteran should undergo a VA orthopedic examination to determine the nature and extent of all residuals of the service-connected low back strain that are consistent with his complaints and symptoms. The reported medical history should include a notation of any time lost from work due to the service-connected disorder. The examination should be conducted in accordance with the Physician's Guide for Disability Evaluation Examinations. All necessary tests should be performed. The physician must be provided the claims folder for review. The physician should provide an opinion as to the extent of functional loss and limitation of activity imposed by the service-connected disorder. The claims folder must be made available to the physician prior to the examination. The physician should also comment on any subjective symptoms, including pain, that are not objectively shown on examination, testing and evaluation. 3. When the above development has been completed, the case should be reviewed by the RO, and any issues on appeal should be adjudicated. 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. 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. THOMAS J. DANNAHER 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) (1994).