BVA9508327 DOCKET NO. 93-14 933 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to an increased disability rating for chronic myofascitis of the dorsal lumbar spine with lumbosacral strain, currently evaluated as 20 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Theresa M. Catino, Associate Counsel INTRODUCTION The veteran served on active military duty from December 1950 to December 1952. REMAND A review of the claims file indicates that the most recent VA examination accorded to the veteran was conducted in January and February 1993. However, in a letter dated April 29, 1993, Dr. Clinton Glaspy indicated that, since April 8th, he had treated the veteran for back problems six times. In addition, Dr. Glaspy expressed his opinion that the veteran's back condition was progressive and deteriorating. Furthermore, Dr. Glaspy appeared to indicate that the veteran now has intervertebral disc syndrome. However, Dr. Glaspy did not express an opinion as to whether the veteran's service-connected back disability caused or aggravated any intervertebral disc syndrome that the veteran may have. Moreover, the claims file does not contain a medical opinion as to whether the veteran's service-connected back disability aggravated the degenerative arthritis of his lumbar spine. The United States Court of Veterans Appeals has recently held that, when aggravation of a veteran's non-service-connected condition is proximately due to or the result of a service-connected condition, the veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Allen v. Brown, No. 93-245, slip op. at 16 (U.S. Vet. App. March 17, 1995). The Board of Veterans' Appeals (Board) notes that, in a July 1993 statement, the veteran's representative requested that an independent medical expert's opinion be obtained. The Board, however, has determined as a preliminary matter that additional development of the record should be undertaken by the regional office. Therefore, an the request for an independent medical expert opinion at the present time is premature. Furthermore, the Board notes that the most recent supplemental statement of the case was furnished to the veteran in April 1993. However, Dr. Glaspy's letter was not received by the VA until July 1993. In addition, the cover letter from the veteran's representative, which was attached to Dr. Glaspy's letter did not contain a waiver of jurisdiction by the regional office (RO). The regulations clearly provide that any pertinent evidence submitted by the appellant or representative which is accepted by the Board under 38 C.F.R. § 20.1304 (submission of additional evidence following certification of an appeal to the Board) or which was referred to the Board by the originating agency under 38 C.F.R. § 19.37(b), must generally be referred to the agency of original jurisdiction for review and preparation of a supplemental statement of the case unless the appellant waives that procedural right. The waiver must be in writing or, if a hearing on appeal is conducted, formally entered on the record orally at the time of the hearing. 38 C.F.R. § 20.1304 (1994). The Board concludes that further assistance to the veteran is required. Accordingly, the case is REMANDED to the RO for the following: 1. The veteran should be contacted and requested to furnish a complete list of all medical personnel and facilities from which he has received treatment for his back disability since 1993. The Board is particularly interested in the records of treatment that the veteran received from Dr. Clinton Glaspy and that he may have received from any other local private physicians of from the local VA medical center. After obtaining the appropriate releases from the veteran where necessary, the health care providers should be contacted and requested to provide all treatment records in their possession pertaining to the veteran. If these records are unavailable, that fact should be annotated in the claims folder. Any available records should be associated with the claims folder. 2. Following the above, the veteran should be accorded examinations by a VA orthopedist and a VA neurologist who have not previously examined him, if possible, to determine the nature and extent of his service-connected back disability. The examinations should be conducted in accordance with the diagnostic procedures outlined in the VA Physician's Guide for Disability Evaluation Examinations. The reports of examination should include a detailed account of all manifestations of joint pathology found to be present. All necessary tests and X-rays should be conducted, and the examiners should review the results of any testing prior to completion of the reports. Special attention should be given to the presence or absence of pain, any limitation of motion, instability, and weakness. The examiners must express opinions as to whether the veteran has intervertebral disc syndrome, and, if so, whether it was caused or aggravated by the veteran's service-connected back disability. In addition, the examiners must express opinions as to whether the veteran's service-connected back disability aggravated the degenerative arthritis of his lumbar spine. The claims folder and a copy of this remand must be made available to and reviewed by the examiners prior to the examinations. 3. The RO should review the examination reports 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. Thereafter, the RO should formally adjudicate the issue on appeal. In addition, the RO should adjudicate the claim of entitlement to service connection for any other back disability, including intervertebral disc syndrome and degenerative arthritis of the lumbar spine, which is found on examination. In adjudicating any claims of entitlement to service connection, the RO should consider the decision in Allen v. Brown, No. 93-245, slip op. at 16 (U.S. Vet. App. March 17, 1995). 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. The supplemental statement of the case should include a review of all evidence received since the last supplemental statement of the case was furnished to the veteran in April 1993. Thereafter, the case, in accordance with the current appellate procedures, should be returned to the Board for completion of appellate review. The purpose of this REMAND is to obtain clarifying evidence. No action is required of the veteran until further notice is issued. JOHN E. ORMOND 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) (1994).