Citation Nr: 0003128
Decision Date: 02/08/00	Archive Date: 09/08/00

DOCKET NO. 98-05 236               DATE FEB 8, 2000

On appeal from the Department of Veterans Affairs Regional Office
in Indianapolis, Indiana

THE ISSUE

What evaluation is warranted for the period from July 1, 1991, for
a low back disability.

REPRESENTATION

Appellant represented by: The American Legion

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

Nadine W. Benjamin, Counsel

INTRODUCTION

The veteran served on active duty from May 1965 to March 1969. This
matter comes to the Board of Veterans' Appeals (Board) on appeal
from rating decisions by the Department of Veterans Affairs (VA)
Regional Office (RO) in Indianapolis, Indiana.

Initially the issue in this case was entitlement to service
connection for a low back disability. In January 1996, the Board
remanded the claim to the RO for additional development. While the
case was in remand status, service connection was granted for a low
back disability. The RO found that the veteran's service-connected
left foot disability aggravated his back disability. A 10 percent
evaluation was assigned by the RO after determining that the
veteran's back disability was 20 percent disabling, and that it was
formerly 10 percent disabling. It was decided that therefore, the
incremental increase for compensation was 10 percent. The veteran
has disagreed with the 10 percent evaluation, and the case has been
returned to the Board for further action.

REMAND

The record shows that the veteran was last examined by VA in June
1996. At that time, the issue on appeal involved secondary service
connection for a low back disability. In November 1997, while the
case was in remand status, the RO granted service connection for a
low back disability, and assigned a 10 percent evaluation. The
grant was for service connection based on aggravation. The RO found
that the preexisting back disability was 10 percent disabling prior
to service and that following aggravation, it was currently 20
percent disabling. Thus a 10 percent evaluation representing the
degree of disability caused by aggravation was assigned.

VA has a duty to assist the veteran in the development of facts
pertinent to his claim. 38 U.S.C.A. 5107 (West 1991). The United
States Court of Appeals for

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Veterans Claims (known as the United States Court of Veterans
Appeals prior to March 1, 1999)(hereinafter, "the Court") has held
that the duty to assist includes the duty to obtain adequate and
contemporaneous VA examinations, including examinations by
specialists when indicated, and to obtain medical records to which
the veteran has referred or which may be pertinent to the issues.
Littke v. Derwinski, 1 Vet. App. 90 (1990); Hyder v. Derwinski, 1
Vet. App. 221 (1991); Green v. Derwinski, 1 Vet. App. 121 (1991).
Where the record before the Board is inadequate to render a fully
informed decision, a remand to the RO is required in order to
fulfill the statutory duty to assist. Ascherl v. Brown, 4 Vet. App.
371, 377 (1993).

In light of the foregoing,, the Board finds that further
development, as specified below, is required. Accordingly, the case
is REMANDED to the RO for the following actions:

1 - The veteran should be contacted and requested to provide the
names, addresses and approximate dates of treatment for all VA and
non-VA health care providers who have treated him for his low back
disability. With any necessary authorization, the RO should attempt
to obtain and associate with the claims folder copies of all
pertinent treatment reports identified by the veteran, which are
not currently of record. Once received, these records should be
associated with the claims folder.

2. The RO should schedule the veteran for an examinations by a
board certified orthopedist, and a board certified neurologist, if
available,, to evaluate the veteran's service-connected low back
disability. All indicated studies, including complete X-rays,
should be performed. Range of motion should be documented in
degrees and any muscle spasms, painful motion or loss of lateral
spine motion should be noted. The neurologist should indicate all
neurological findings and document

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the frequency of attacks. The examiners are requested to completely
review the claims folder prior to the examinations, and to clearly
differentiate all manifestations referable solely to the veteran's
service- connected low back disability. The examination reports
must cover any weakened movement, including weakened movement
against varying resistance, excess fatigability with use,
incoordination, painful motion, pain with use, and provide an
opinion as to how these factors result in any limitation of motion.
If the veteran describes flare- ups of pain, the examiners must
offer an opinion as to whether there would be additional limits on
functional ability during flare-ups, and if feasible, express this
in terms of additional degrees of limitation of motion during the
flare-ups. If the examiner is unable to offer an opinion as to the
nature and extent of any additional disability during a flare-up
that fact should be so stated. DeLuca v. Brown, 8 Vet. App. 202
(1995). The examiners should also comment on the veteran's
employability. A complete rationale for all opinions and
conclusions expressed must be given.

3. After the examinations have been completed, the RO should review
the examination reports to insure that they comply with the
directives of this remand, and if any do not, it must be returned
for corrective action.

4. Then the RO should take any other necessary action, and
readjudicate the issue on appeal.

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After completion of the requested actions, the RO should review the
evidence and determine whether the veteran's claim may be granted.
If not, the veteran and his representative should be provided with
an appropriate Supplemental Statement of the Case. After allowing
the veteran appropriate time to respond, the case should be
returned to the Board for further appellate review, if otherwise in
order. By this remand, the Board intimates no opinion as to the
final outcome warranted. No action is required of the veteran until
he is notified by the RO.

The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded to the
regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment by the RO. The
law requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals for
Veterans Claims for additional development or other appropriate
action must be handled in an expeditious manner. See The Veterans'
Benefits Improvements Act of 1994, Pub. L. No. 103-446, 302, 108
Stat. 4645, 4658 (1994), 38 U.S.C.A. 5101 (West Supp. 1999)
(Historical and Statutory Notes). In addition, VBA's Adjudication
Procedure Manual, M21-1, Part IV, directs the ROs to provide
expeditious handling of all cases that have been remanded by the
Board and the Court. See M21-1, Part IV, pares. 8.44-8.45 and
38.02-38.03.

F. JUDGE FLOWERS
Member, Board of Veterans' Appeals

Under 38 U.S.C.A. 7252 (West 1991 & Supp. 1999), only a decision of
the Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. 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) (1999).

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