Citation Nr: 0002872 Decision Date: 02/04/00 Archive Date: 02/10/00 DOCKET NO. 98-05 945 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to an increased rating for lumbar strain, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD B.E. Jordan, Counsel INTRODUCTION The veteran had active military service from August 1987 to October 1989. This appeal to the Board of Veterans' Appeals (Board) arises from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. REMAND As a preliminary matter, the Board finds that the veteran's claim is plausible and thus well grounded within the meaning of 38 U.S.C.A. § 5107(a); see Proscelle v. Derwinski, 2 Vet.App. 629 (1992) (a claim of entitlement to an increased evaluation for a service-connected disability generally is a well-grounded claim). 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). The United States Court of Veterans Appeals 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 examinations. 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 (1991) The veteran asserts, in essence, that the symptoms associated with his service-connected low back disability are more disabling than currently evaluated. Specifically, the veteran maintains that he experiences increased low back pain and that his back discomforts interfere with his employment responsibilities. The Board would also point out that the veteran has been seen and treated by VA and private health care providers for his low back disability. Clinical findings and diagnoses included degenerative disc disease with associated mile degenerative bony changes at the L5-S1 level with associated broad based bulging of the disc ( magnetic reasoning dated in July 1997). Additional VA examiners have opined that the veteran has sciatica consistent with L4-5 bulging disc and degenerative changes of L5-S1 areas of the lumbar spine. The record includes medical records dated in June and September 1998 and an employment fitness examination dated in August 1997 reflecting that the veteran has been on restricted work duty because of back problems. In evaluating the severity of the veteran's low back disability, the Board must consider all pertinent diagnostic codes under the VA Schedule for Rating Disabilities in 38 C.F.R. Part 4 and application of 38 C.F.R. § 4.40, regarding functional loss due to pain, and 38 C.F.R. § 4.45, regarding weakness, fatigability, incoordination or pain on movement of a joint. See DeLuca v. Brown, 8 Vet.App. 202 (1995). In that connection, the veteran's representative indicated in VA Form 646 received in August 1999 that a November 1997 VA compensation and pension examination (the most contemporaneous examination of record) is not in compliance with requirements emcompassed by 4.40 and 4.45. The Board agrees. In light of the current state of the record, the Board concludes that further evidentiary development would be helpful to an equitable determination of this appeal. 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 currently treated him for his service-connected lumbar strain. With any necessary authorization from the veteran, the RO should attempt to obtain copies of pertinent treatment records identified by the veteran which are not currently of record. 2. Thereafter, the veteran should be provided a VA examination by a board certified orthopedist, if available, to determine the current severity of his service-connected lumbar strain. Any necessary tests or studies, including X- rays, should be conducted. Tests of joint movement against varying resistance should be performed by the orthopedist. The extent of any incoordination, weakened movement and excess fatigability on use should also be described by the examiner. The examiner should be requested to identify any objective evidence of pain or functional loss due to pain. The examiner should also express an opinion concerning whether there would be additional limits on functional ability during flare-ups (if the veteran describes flare-ups), and, if feasible, express this in terms of additional degrees of limitation of motion during flare-ups. If this is not feasible, the physician should so state. The examiner should also provide an opinion concerning the impact of the service-connected lumbar strain on the veteran's ability to work. The rationale for all opinions expressed should be explained. The claims folders must be made available to the examiner for review prior to the examination. 3. Inasmuch as this remand creates a right in the veteran to compliance with the instructions contained herein, the RO should ensure that the examinations reports contain all requested information. Stegal v. West, 11 Vet. App. 268 (1998). In light of the additional evidence obtained pursuant to the requested development, the RO should reevaluate the issue on appeal. If the benefit sought on appeal is not granted to the satisfaction of the veteran, a Supplemental Statement of the Case should be issued and the veteran and his representative provided with an opportunity to respond. Thereafter, the case should be returned to the Board for further consideration, if otherwise in order. By this REMAND, the Board intimates no opinion as to the final outcome warranted. No action is required of the veteran until he is otherwise notified by the RO. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). F. JUDGE FLOWERS Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. 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) (1999).