BVA9501722 DOCKET NO. 93-09 754 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to restoration of a 40 percent evaluation for degenerative joint disease, L5-S1, with degenerative disc disease, L5-S1. 2. Entitlement to service connection for degenerative disc disease L4-L5. 3. Whether there was clear and unmistakable error in the December 1988 rating decision. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD James R. Siegel, Counsel REMAND The veteran served on active duty from September 1942 to October 1945 and from December 1948 to June 1965. This matter comes before the Board of Veterans' Appeals (the Board) on appeal from decisions from the Regional Office (RO). By rating action dated in February 1992, the RO proposed that the evaluation for the veteran's service-connected low back disability be reduced from 40 percent to 10 percent. Following a hearing held at the RO in April 1992, and an examination conducted by the Department of Veterans Affairs (VA) later that month, the hearing officer, by decision of June 1992, assigned a 20 percent rating for the low back disorder. By rating action of November 1992, the RO denied service connection for degenerative disc disease with disc space narrowing of L4-L5, and determined that there was clear and unmistakable error in the December 1988 rating decision which granted service connection for degenerative joint disease of the (entire) lumbar spine. The initial question before the Board is whether the veteran has submitted a well-grounded claim as required by 38 U.S.C.A. § 5107. The United States Court of Veterans Appeals (the Court) has held that a well-grounded claim is one which is plausible or capable of substantiation. Murphy v. Derwinski, 1 Vet.App. 78 (1990). In this case, the veteran's evidentiary assertions concerning the nature, onset and severity of the symptoms of his low back disability that are within the competence of a lay party to report are sufficient to conclude that his claims are well- grounded. Proscelle v. Derwinski, 2 Vet.App. 629; Espiritu v. Derwinski, 2 Vet.App. 492 (1992), King v. Brown, 5 Vet.App. 19 (1993). As noted above, the RO originally granted service connection for degenerative joint disease of the lumbar spine. When the RO implemented the hearing officer's decision to assign a 20 percent evaluation for the low back disability, the service-connected disability was recharacterized as degenerative joint disease of L5-S1 with degenerative disc disease of L5-S1. In effect, this had the effect of severing service connection for the low back disability of the remainder of the lumbar spine, which had been granted in 1988. In O.G.C. Prec. Op. 50-91 (March 29, 1991), the General Counsel of the VA held that the RO can redesignate an existing service connection rating to reflect accurately the actual anatomical location of the injury; provided that the redesignation does not result in severance. In this case, however, it is clear that the RO's action resulted in severance. In this regard, the Board notes that the RO specifically denied service connection for degenerative disc disease of L4-L5 by rating action of November 1992. However, the RO did not follow the appropriate procedures for severing service connection. See 38 C.F.R. 3.105(d) (1993). While the RO did determine in November 1992 that the original grant of service connection was clearly and unmistakable erroneous in granting service connection for any disability of L4-L5, this did not constitute an appropriate means of severing service connection. The issue of severance of service connection is inextricably intertwined with the matters currently before the Board. The Court has held that a claim which is inextricably intertwined with another claim which remains undecided and pending before VA must be adjudicated prior to a final order on the pending claim. Harris v. Derwinski, 1 Vet.App. 180 (1990). However, the RO has not formally adjudicated the issue of severance of service connection for disc disease of L4-L5. The veteran has argued that the RO, by changing the characterization of the service-connected disorder, has limited the grant to one particular disc space. Moreover, he has alleged that the RO did not provide any medical evidence to support the change in his service-connected low back disability. The Court has held that where the veteran claims that a disability is worse than when originally rated, and the available evidence is too old to adequately evaluate the current state of the condition, the VA must provide a new examination. Olson v. Principi, 3 Vet.App. 480, 482 (1992), citing Proscelle v. Derwinski, 2 Vet.App. at 632. The VA has a duty to assist the veteran in the development of facts pertinent to his claim. 38 U.S.C.A. § 5107(a) (West 1991). The Court has held that the duty to assist the veteran in obtaining and developing available facts and evidence to support his claim includes obtaining adequate VA examination. This duty is neither optional nor discretionary. Littke v. Derwinski, 1 Vet.App. 90 (1990). This duty also includes providing additional VA examinations by a specialist when recommended. Hyder v. Derwinski, 1 Vet.App. 221 (1991). The fulfillment of the statutory duty to assist includes conducting a thorough and contemporaneous medical examination, one which takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one. Green v. Derwinski, 1 Vet.App. 121, 124 (1991). Under the circumstances of this case, the Board finds that additional development of the record is required. Accordingly, the case is REMANDED to the RO for action as follows: 1. The RO should contact the veteran and request that he furnish the names, addresses, and dates of treatment of all medical providers from whom he has received treatment for his low back disability since 1992. He should execute the proper authorization forms for release of this information. 2. Thereafter, the RO should seek to obtain copies of all treatment records referred to by the veteran. 3. The veteran should then be afforded a VA examination by a specialist in neurology, if available, to determine the nature and extent of his low back disability. All necessary tests should be performed. The claims folder should be made available to the examiner in conjunction with the examination. Following the examination and a review of the record, the examiner should furnish an opinion the precise nature of the veteran's low back disability. He should specify whether the entire spine is involved or if only certain segments of the lumbar spine are affected. 4. Thereafter, if appropriate based on the opinion of the VA examiner, the RO should adjudicate the issue of severance of service connection for disc disease of L4-L5. If this determination is adverse, and the appellant files a notice of disagreement, the RO should develop this issue in accordance with appellate procedures. Following completion of the above, the RO should review the evidence and determine whether the veteran's claim may now be granted. If not, he and his representative should be furnished an appropriate supplemental statement of the case, and the case should then be returned to the Board for further appellate consideration. RICHARD B. FRANK 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).