BVA9504084 
DOCKET NO.  93-11 592     )       DATE
          )
          )

On appeal from the decision of the
Department of Veterans Affairs Regional Office in Muskogee,
Oklahoma

THE ISSUE

Entitlement to an increased evaluation for a low back disability,
currently evaluated as noncompensable.

REPRESENTATION

Appellant represented by: Disabled American Veterans

ATTORNEY FOR THE BOARD

Lois N. Petzold, Associate Counsel

REMAND

 The veteran, who had active service from November 1945 to
October 1946, has asserted that his service connected low back
disability is more disabling than currently evaluated.  He
contends that he suffers from pain and muscle spasms, which
restrict his activity.  The RO has denied the claim holding that
the veteran"s current low back disability is the result of post-
service injuries.

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 United States Court of Veterans Appeals (the Court) has held
that the duty to assist the veteran in developing available facts
and evidence to support his claim includes obtaining available
medical records which are relevant to the claimant's appeal and
obtaining adequate VA examinations. Littke v. Derwinski, 1
Vet.App. 90 (1990).  In the case of Ivey v. Derwinski, 2 Vet.App.
320 (1992), the Court stated that even when the appellant did not
request that pertinent medical records be obtained, when a
claimant puts the VA on notice that such records exist, then the
VA's duty to assist the claimant in developing a claim is
triggered.  In the case at hand, the veteran mentioned on his
January 1993 substantive appeal that he received medication from
the VA, and from Dr. Cook, for his back disability.  During a
September 1992 VA examination, the examiner also noted that the
veteran had been "seen off and on at VA for back problems".
However, there are no treatment records from either the VA or Dr.
Cook in the claims file.  These must be obtained.  Also, the RO
has never attempted to obtain the treatment records dealing with
the veteran's 1955 and 1962 injuries, and should do so.

Fulfillment of the statutory duty to assist includes the conduct
of a thorough and contemporaneous medical examination 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 (1991).  Therefore, once
the RO obtains the veteran's medical records, he will have to be
afforded a current VA examination which contemplates his medical
history.  Moreover the VA has a duty to acknowledge and consider
all regulations which are potentially applicable through the
assertions and issues raised in the record, and to explain the
reasons and bases for its conclusion.  Schafrath v. Derwinski, 1
Vet.App. 589 (1991).

In order to comply with the Court mandates discussed above, the
Board finds that additional assistance is required.  The case is
REMANDED to the RO for action as follows:

1.  The veteran should be asked to provide
the names and addresses of all medical
providers from whom he has sought treatment
for his low back disability since 1992.
After obtaining the necessary release from
the veteran, the named providers should be
contacted and requested to provide complete
clinical records concerning all such
treatment of the veteran.  The veteran
should also be asked to provide a list of
medical providers who treated him in regard
to the injuries he sustained in 1955 and
1962.  The RO must also attempt to obtain
these records.

2.  After the above-mentioned records have
been obtained, the veteran should be
afforded a special VA orthopedic
examination to determine the nature and
extent of disability due to the lower back.
All necessary tests should be performed.
The claims folder should be made available
to the examiner prior to the examination so
that he or she may review pertinent aspects
of the veteran's medical history.  The
examiner should then express an opinion
with respect to the following questions:
(a).  Did the 1955 and/or 1962 injuries to
the low back represent the onset of a new
and distinct back condition or was there
just a progression of the service connected
low back condition.  (b)  If the former,
what current findings of low back
disability can be attributed solely to the
post-service injury?  The examiner should
also express an opinion as to the effects
of the service connected disability upon
the veteran's ordinary activity and how the
disability impairs the veteran
industrially.

Thereafter, the claim should be reviewed by the RO.  If the claim
continues to be denied, the veteran and his representative should
be furnished an appropriate supplemental statement of the case,
and afforded a reasonable opportunity to respond.  The case
should then be returned to the Board for further appellate
consideration.

          C.W. SYMANSKI
          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).