BVA9505225 DOCKET NO. 93-14 899 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to an increased evaluation for a herniated disc of the lumbosacral spine, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Robert E. O'Brien, Counsel REMAND The veteran had active service from June 1986 to June 1992. His certificate of release or discharge from active duty reveals that he was separated because of physical disability with severance pay. A review of the available service medical records discloses that magnetic resonance imaging of the lumbar spine done in March 1991 showed protrusion of the disc at the level of the 4th and 5th lumbar vertebrae. Also, there was right-sided posterior herniation of the disc at the level of the 5th lumbar vertebra and the 1st sacral segment. The veteran was evaluated at a service department orthopedic clinic in April 1992 and it was remarked that he acted like an individual with mechanical back pain, although he had an abnormal magnetic resonance imaging test. He was to be presented to a physical evaluation board and his ability to return to duty was doubted. There is no report of record from any physical evaluation board. When the veteran was accorded a general medical examination by VA in July 1992, he stated that he had a CT scan and magnetic resonance imaging scan at Mount Vernon which had been ordered by his doctor at the Naval Hospital, Oak Harbor, Washington, earlier in 1992. The reports of these scans are not in the claims folder. He was given exercises and nonsteroidal anti- inflammatory agents, which he took at least every three days. It was remarked he could not jog for more than a couple of miles without exacerbating the back pain. It was further related he was unable to participate in any strenuous, high-impact athletics. Examination findings included a full range of motion of the back, with no neurological abnormalities in the lower extremities, despite complaints of pain in the right buttock and thigh. The veteran was accorded X-ray studies of the lumbar spine and notation was made that the views were compared with an examination obtained February 14, 1992, at the Whidbey General Hospital. The report of that examination is not of record. Not demonstrated on the comparison radiographs were two irregular metallic fragments. The clinical significance of these findings could not be evaluated without further localization. It was stated that additional views would be required, if clinically indicated. In the veteran's substantive appeal, he stated that his condition had significantly worsened from the time of his separation from service. He indicated that jogging was now completely out of question. He complained that pain and numbness were much more frequent and the lower back felt extremely weak despite his exercises. He also stated that he wore a back brace on a full- time basis, but this still did not help very much. VA has a duty to assist the veteran in the development of facts pertinent to his claim. 38 U.S.C.A. § 5107(d) (West 1991); 38 C.F.R. § 3.103(a) (1994). The United States Court of Veterans Appeals (Court) has held that the duty to assist includes obtaining available records which are relevant to the claimant's appeal. The duty to assist is neither optional nor discretionary. Littke v. Derwinski, 1 Vet.App. 90 (1990). In view of the foregoing, the case is REMANDED to the RO for the following actions: 1. The RO should contact the veteran and request the names and addresses of all health care providers who have treated him for his low back disability since 1992 and specify the approximate dates of treatment, if possible. Then, after any necessary authorization is obtained from the veteran, the RO should obtain copies of any treatment records identified by the veteran. Of particular interest are the reports of a CT scan and magnetic resonance imaging scanning done at "Mount Vernon" in 1992 and X-ray studies of the lumbar spine done February 14, 1992, at the Whidbey General Hospital. 2. Thereafter, a VA orthopedic examination should be arranged to determine the extent and severity of the veteran's low back disorder. The examination report should include a medical history with notation of time lost from employment, if any, due to the veteran's back disability. The examination should be conducted in accordance with the VA Physician's Guide for Disability Evaluation Examinations (1985). The examiner should set forth detailed findings regarding limitation of motion and any other functional loss caused by the herniated disc of the lumbar spine. The presence or absence of painful motion must be reported. The examiner should also describe any functional loss the veteran may experience as a result of pain, weakness, or fatigability. The claims folder, or copies of all pertinent records, should be made available to the examiner for review. 3. Following completion of the above, the RO must review the claims folder and ensure that the foregoing development has been completed. When the RO is satisfied that the record is complete and the orthopedic examination adequate for rating purposes, the claim should be readjudicated by the RO. to include consideration of 38 C.F.R. § 3.321 (b)(1). Unless the benefit sought on appeal is granted to the veteran's satisfaction, a supplemental statement of the case should be prepared and he and his representative should be provided with the applicable time period in which to respond. Thereafter, the claim should be returned to the Board for further review, if otherwise in order. No action is required of the veteran until he receives further notice. The Board does not intimate any factual or legal conclusions as to any final outcome warranted in the appeal. CHARLES E. HOGEBOOM 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 action has been taken in accordance with the Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 303, 108 Stat. 4645, ___ (1994), and 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) (1994).