BVA9503139 DOCKET NO. 93-12 325 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to an increased rating for cervical myositis with early degenerative joint disease, currently evaluated as 20 percent disabling. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Richard E. Coppola, Associate Counsel INTRODUCTION The veteran had active service from September 1979 to June 1982, and again from January 1987 to April 1988. This matter came before the Board of Veterans' Appeals (Board) on appeal from a rating decision of January 1993 from the Cleveland, Ohio, Department of Veterans Affairs (VA) Regional Office (RO), which increased the disability award for the veteran's service- connected cervical myositis with early degenerative joint disease from 10 percent to 20 percent, effective from August 6, 1992. REMAND During a September 1992 VA examination, the veteran indicated that his service-connected symptoms include headaches, motion sickness, trouble swallowing and right arm fatigue or numbness. The representative argues that it remains unclear whether these symptoms are associated with the service-connected disability, and how incapacitating they are. It is argued that this must be determined prior to final adjudication of the issue of a rating in excess of 20 percent for service-connected cervical myositis with early degenerative joint disease. In his August 1992 application for benefits, the veteran indicated that he had been treated for his service-connected disability by his private doctor from 1990 to the present. The evidence submitted includes an August 1992 statement from Michael P. DeBord, D.C., indicating that he had treated the veteran for recurrent neck pain since February 1990. This statement is accompanied by reports of private X-ray examination, Magnetic Resonance Imaging (MRI) and electromyography (EMG). The contemporaneously recorded treatment records of Dr. DeBord may provided pertinent information reflecting the severity and frequency of the reported recurrent "exacerbative episodes," and should be obtained. The statement of the case provided the veteran in March 1993 does not inform him of the requirements which must be met for the assignment of a rating in excess of 20 percent for his cervical spine disorder. 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 RO should obtain from the veteran the names and address of all medical care providers, VA or otherwise, who treated him for his cervical disorder in the recent past. After securing any necessary releases, the RO should obtain these records, including contemporaneously recorded treatment records from Dr. DeBord, for association with the claims folder. 2. The veteran should then be afforded VA orthopedic and neurologic examinations to determine the nature and extent of all residuals of hyperextension injury to the cervical spine. The scope of the examinations should be broad enough to cover all residual conditions of a hyperextension injury to the cervical spine which are suggested by the veteran's complaints, symptoms or findings at the time of examination. All complaints or symptoms having a medical cause should be covered by a definite diagnosis. The examinations should be conducted in accordance with the Physician's Guide for Disability Evaluation Examinations. The cervical disorder should be evaluated in relation to its history, with emphasis upon the limitation of activity, to include employability, imposed by the disabling condition. The physicians must be provided the claims folder prior to the examination so that they may review historical data contained therein to obtain a true picture of the progress of the cervical spine disorder. The examinations should include all appropriate diagnostic testing, such as X-rays and range of motion studies. Range of motion of the cervical spine should be recorded in numbers of degrees, with any limitation of spinal motion described, and any portion of the arcs of motion which are painful should be so designated. The neurology examination report should describe all significant positive findings, particularly those relating to limitation of function. All abnormalities in motor performance and all sensory deficits should be identified. Any evidence of recurring attacks of intervertebral disc syndrome, to include neuropathy with characteristic pain and demonstrable muscle spasm, or other neurological findings, should be noted. 3. 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 (including the criteria set forth under Diagnostic Codes 5290 and 5293), 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. GARY L. GICK 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 deter- mination. 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).