BVA9505712 DOCKET NO. 93-09 633 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to an increased rating for spondylolisthesis, L5 - S1, status post fusion, currently assigned a 40 percent disability evaluation. 2. Entitlement to service connection for ulcerative colitis and additional spinal disability, both as secondary to the low back disorder. 3. Entitlement to a total disability rating based on individual unemployability. WITNESSES AT HEARING ON APPEAL The appellant, and the appellant's spouse ATTORNEY FOR THE BOARD P. H. Mathis, Counsel REMAND The veteran had active service from October 1955 to October 1957. This matter is before the Board of Veterans' Appeals (Board) on appeal of rating decisions by the Los Angeles, California, Regional Office (RO) of the Department of Veterans Affairs (VA). The veteran testified at a hearing on appeal at the RO in March 1993 before the member of the Board whose signature appears below. The Board initially remanded the case in October 1993, requesting that the RO obtain VA treatment records, secure records pertaining to the veteran's award of Social Security Administration (SSA) disability benefits, schedule special orthopedic and neurologic examinations of the veteran, and then take any indicated additional action warranted based on the newly obtained evidence. Regarding the physical examinations, it was requested that the extent and severity of the spinal disease be reported. All indicated studies were to be accomplished, and the examiner was requested to comment on the relationship, if any, between the service-connected lumbar disease and any other spinal disorder found. The claims folder was also to be made available for review. The record reflects that the veteran was afforded a VA medical examination in December 1993. The examiner noted that the claims folder had been reviewed. Although the scheduling notice from the RO to the Medical Center requested comment on the relationship, if any, between the service-connected lumbar disease and any other spinal disorder found, there was no reference to this in the examination report. Also, X-rays were taken of the lumbosacral and cervical spines only. A special neurologic examination was not done. In December 1993, the veteran wrote to the Secretary of Veterans Affairs (Secretary), reporting his frustration regarding the VA physical examination he received. The veteran felt that the examination was not adequate; that he was in street clothes while asked questions about his condition by the examiner; that supporting X-rays offered by the veteran were initially ignored by the examiner; and that X-rays were ordered by the VA examiner, but did not include studies of the thoracic spine. In the 1993 letter to the Secretary, the veteran also claimed entitlement to a temporary total rating based on 38 C.F.R. § 4.29 (1994) for hospitalizations from November 12 to December 16, 1992, and from January 5 to January 29, 1993. These matters are referred to the RO for appropriate action. It is the judgment of the Board that further action is necessary prior to a decision on the merits of the claims. Accordingly, the case is REMANDED to the RO for the following actions: 1. The RO should contact the veteran and request that he identify the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who have treated him for spinal disability since service. With any necessary authorization from the veteran, the RO should attempt to obtain copies of pertinent treatment records identified by the veteran, which have not been previously secured, and associate them with the claims folder. In any event, all of the veteran's recent VA treatment reports not of record must be obtained for association with the primary claims folder. 2. Thereafter, the RO should arrange for the veteran to undergo VA examination by a board certified orthopedist, if available, who has not previously examined the veteran, to determine the nature and extent of any disability of the spine. The examiner should be aware that the veteran is claiming service connection for cervical and thoracic spine disability secondary to the service-connected lumbosacral spine disability. All indicated studies should be performed. The examiner should be requested to examine the veteran, review the record, and provide an opinion, with compete rationale, as to the etiology of any disability of the spine found to be present, to include an opinion as to whether it is at least as likely as not that any such impairment is etiologically related to the veteran's service-connected spondylolisthesis, L5 - S1, status post fusion. It is imperative that a copy of this Remand and the veteran's claims file be made available to the examiner prior to the examination. If feasible, the orthopedist is requested to correlate findings with the neurologist, whose examination is requested below. 3. The RO should also arrange for the veteran to undergo VA examination by a board certified neurologist, if available, to determine the nature and extent of disability of the spine. The examiner should be aware that the veteran is claiming service connection for cervical and thoracic spine disability secondary to the service-connected lumbosacral spine disability. All indicated studies should be performed. The examiner should be requested to examine the veteran, review the record, and provide an opinion, with compete rationale, as to the etiology of any disability of the spine found to be present, to include an opinion as to whether it is at least as likely as not that any such impairment is etiologically related to the veteran's service-connected spondylolisthesis, L5 - S1, status post fusion. It is imperative that a copy of this Remand and the veteran's claims file be made available to the examiner prior to the examination. If feasible, the neurologist is requested to correlate findings with the orthopedist. 4. Following completion of the foregoing, the RO should review the claims folder and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action should be implemented. 5. Thereafter, the RO should take any additional action indicated, and readjudicate the issues currently certified on appeal. If the benefits sought on appeal are not granted to the appellant's satisfaction, a Supplemental Statement of the Case addressing all issues in appellate status should be prepared and furnished to the appellant. An opportunity to respond should be provided. Thereafter, in accordance with proper appellate procedures, the case should be returned to the Board for further appellate review, if otherwise in order. In taking this action, the Board implies no conclusion, either legal or factual, as to any final outcome warranted. The appellant need take no action until otherwise notified. J. J. SCHULE Member, Board of Veterans' Appeals (CONTINUED ON NEXT PAGE) 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).