BVA9500137 DOCKET NO. 91-11 570 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri THE ISSUE Entitlement to an increased rating for a low back disability, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. F. Halsey, Counsel INTRODUCTION The veteran served on active duty from April 1967 to April 1971, and from December 1974 to January 1978. This matter was before the Board of Veterans' Appeals (Board) in September 1993. Among other things, the Board denied an increased rating for the veteran's service-connected low back disability. The veteran appealed to the United States Court of Veterans Appeals (Court) and by a July 18, 1994, order, the Court vacated only that portion of the Board's decision that denied an increased rating for the service-connected back disability. This issue was remanded to the Board for further action consistent with a May 27, 1994, joint motion for remand entered by the parties to the appeal. In its July 1994 order, the Court also found that the parties to the May 1994 joint motion had agreed that the Board's denial of a separate compensable evaluation for a right ankle scar should be reversed. Consequently, the Court dismissed the appeal of this issue as being a moot controversy. See Bond v. Derwinski, 2 Vet.App. 376 (1992). REMAND The May 27, 1994, joint motion indicates that both VA and the veteran agreed that the Board, in its September 1993 decision, had "correctly determined that [the veteran] does not have muscle spasm on extreme forward bending and that a 20 percent rating is not therefore warranted under the rating schedule." However, it was noted that criteria for a 40 percent rating under 38 C.F.R. § 4.71a (Diagnostic Code 5292) (1993) had not been discussed by the Board. It was noted that"[t]he difference between a 20 and a 40 percent rating is not the degree to which a single set of symptoms is demonstrated, but rather the manifestation of almost entirely different symptoms." Consequently, the parties to this motion agreed that, while the veteran does not qualify for a 20 percent rating, he may very well satisfy the criteria for a higher rating. Given the intent of 38 U.S.C.A. § 1155 (West 1991) and the general practice of rating disability only under progressive grades of disability, it might appear that the agreement reached in the May 1994 joint motion is an exercise in sophistic reasoning. However, VA, by entering this agreement, has adopted this reasoning as the manner in which Diagnostic Code 5295 is to be applied to this case. To deviate from this approach would be violative of the Court's order. In reviewing the evidence in this case, the Board notes that several diagnoses have been provided by various examiners. Back strain and degenerative disc disease predominate. An August 1989 report prepared by a private physician indicates that a computerized tomography scan had revealed marked degenerative changes at L5-S1 with a vacuum disc phenomenon. Narrowing of the disc space at L5-S1 was noted on a VA X-ray report prepared in October 1989. VA examination reports prepared in May 1991 and in May 1992 also refer to degenerative disc disease. The May 1992 report also includes diagnoses of "R[ule]/O[ut] L[umbo]S[acral] spine D[egenerative] D[isc] D[isease]" and "Chronic L[umbo]S[acral] spine strain/pain syndrome." These findings and diagnoses evoke criteria beyond that identified in Diagnostic Code 5295, such as those listed in 38 C.F.R. § 4.71a (Diagnostic Code 5293) (1993). In order to consider all disabling manifestations of the service-connected back disorder and to fully comply with the Court's July 1994 order, this case is REMANDED for the following actions: 1. The veteran should be examined by an orthopedist and neurologist to determine the extent of disabling manifestations of his low back disability. It should be specifically noted whether he has "listing of the whole spine, positive Goldthwaite's sign, marked limitation of forward bending in [a] standing position, loss of lateral motion with osteo-arthritic changes, or narrowing or irregularity of joint space, or...abnormal mobility on forced motion." Diagnostic Code 5295. It should also be specifically reported whether the veteran has symptoms compatible with sciatic neuropathy or other neurologic findings consistent with degenerative disc disease and, most importantly, the frequency with which disc syndrome attacks occur. Diagnostic Code 5293. The examiners should review the claims folder and perform all tests and studies necessary to address the extent of functional impairment due the veteran's back disability. Opinions should be set forth regarding the severity of the veteran's symptoms and the extent of relief he experiences when not suffering from disc syndrome attacks. 2. The originating agency should take adjudicatory action on the veteran's claim for an increase. If the benefit sought by the veteran is denied, a supplemental statement of the case should be issued. 3. The originating agency should adjudicate the question of a separate compensable evaluation for a right ankle scar in accordance with the apparent agreement arrived at by the parties to the May 1994 joint motion for remand. After the veteran and his representative have been given an opportunity to respond to the supplemental statement of the case, the claims folder should be returned to this Board for further appellate review, if in order. No action is required by the veteran until he receives further notice. The purpose of the remand is to procure clarifying data and to comply with governing adjudicative procedures. The Board intimates no opinion, either legal or factual, as to the ultimate disposition of this appeal. STEPHEN L. WILKINS 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) (1993).