BVA9501124 DOCKET NO. 93-13 955 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to an increased rating for a back disorder, currently evaluated as 20 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD Jeffrey A. Pisaro, Counsel REMAND The veteran had verified active service from January 1967 to September 1973. This appeal arises from a March 1992 rating decision of the Winston-Salem, North Carolina, Regional Office (RO), which denied the veteran a rating in excess of 10 percent for his back disorder. In a September 1992 decision, a hearing officer held that the back disorder warranted a 20 percent rating under Diagnostic Code 5293. The criteria set forth under this code have not been cited in the Statement of the Case or the Supplemental Statement of the Case. The Department of Veterans Affairs (VA) has a duty to assist the veteran in the development of facts pertaining to his claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.103(a) (1993). The 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). The veteran is receiving ongoing treatment at the Winston-Salem VA outpatient clinic for the disability at issue; complete medical treatment records should be obtained from that facility. The duty to assist also includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the veteran that takes into account the records of prior medical treatment. Green v. Derwinski, 1 Vet.App. 121 (1991). This is to ensure that the evaluation of a disability is a fully informed one. The veteran contends that the February 1992 VA examination was inadequate to fully and fairly evaluate his claim. Since that examination, the veteran injured his back in May 1992 (see May 1992 report from High Point Regional Hospital) and has received considerable additional treatment for the back which he maintains demonstrates increased disability to include severe radiating pain into the right lower extremity and muscle spasm. Following the gathering of all available records, the veteran should be afforded VA orthopedic and neurology examinations to determine the nature and extent of all back disability. Under the circumstances of this case, the Board finds that further assistance is required. Accordingly, the case is REMANDED to the RO for the following actions: 1. The RO should contact the veteran and obtain the names and addresses of all health care providers where he has received treatment for his back in recent years. Thereafter, the RO should obtain legible copies of all records which have not already been obtained to include those from the Winston-Salem VA outpatient clinic from April 1992 to the present. Once obtained, all records must be associated with the claims folder. 2. Following completion of the above development, the veteran should be afforded VA orthopedic and neurology examinations to determine the nature and extent of all disability of the back. All indicated tests, to include x-rays and complete range of motion studies, should be accomplished. It is imperative that the physicians review pertinent data in the claims folder prior to the examinations. The back disability should be evaluated in relation to its history, with emphasis upon the limitation of activity, to include employability, imposed by the disabling condition. The neurology examination report should describe all significant positive findings, particularly those relating to limitation of function. All abnormalities in motor performance and all sensory deficits should be identified. Any evidence of recurring attacks of intervertebral disc syndrome, to include sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neuro- logical findings, should be noted. 3. When the above development has been completed, the case should be reviewed by the RO. If the decision remains adverse to the veteran in any way, he and his representative should be furnished with a supplemental statement of the case which summarizes the pertinent evidence, fully cites the applicable legal provisions (including the criteria set forth under Diagnostic Code 5293), and reflects detailed reasons and bases for the decision. They should then be afforded a reasonable opportunity to respond. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if appropriate. The veteran need take no action until he is further informed. The purpose of this REMAND is to obtain additional information and to ensure due process of law. No inference should be drawn regarding the final disposition of the claim as a result of this action. GARY L. GICK 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 deter- mination. 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) (1993).