BVA9503993 DOCKET NO. 91-38 671 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J. Connolly, Associate Counsel INTRODUCTION The veteran had active service from August 1989 to May 1990. This matter came before the Board of Veterans' Appeals (Board) on appeal from a January 1991, rating decision of the Houston, Texas, Regional Office (RO) of the Department of Veterans Affairs (VA). The notice of disagreement was received in February 1991. The statement of the case was sent to the veteran in March 1991. The substantive appeal was received in April 1991. In December 1991 and January 1993 decisions, the Board remanded this case to the RO for further development. REMAND At the outset, the Board acknowledges that this case has been remanded on two occasions and the RO has diligently attempted to satisfy the remand requests and to obtain all relevant evidence which is needed prior to the adjudication of the claim. However, the Board notes a new VA examination is necessary prior to the Board's review of the claim. As the case must be returned to the RO, the Board also requests that an additional attempt be made to acquire records that are essential to a full assessment of the claim. As noted in the prior Board decisions, during service, the veteran indicated that he was involved in an industrial accident in August 1988 and in an automobile accident in November 1988, which both occurred prior to his entrance into active service. Although he reported to medical examiners during service that those two accidents caused lower back problems prior to his entry into service, it is his current contention that he did not have a lower back disability prior to service. In particular, he further contends that while the industrial accident affected his shoulders and cervical spine, the lumbar spine was unaffected. In compliance with the Board's 1991 remand decision, the RO requested and obtained the medical records relative to the industrial accident. The Board reviewed these records and notes that a diagnosis of lumbar strain was made upon physical examination. Severe paralumbar spasm was also noted. The RO has also requested the veteran's records from the West Hill Chiropractic Clinic, but no records were forthcoming and it appeared that the veteran's chiropractor may be at a different address. In an August 1994 letter, the RO contacted the veteran and requested that he locate the chiropractor and furnish those records. In addition, the veteran was requested to provide information regarding his 1988 motor vehicle accident. The veteran has not responded as of this time. The Board finds that a second attempt to secure this information is imperative to the veteran's claim. Therefore, the veteran should be contacted a second time and this information should be requested. If the veteran provides information regarding the motor vehicle accident, the RO should request and obtain all indicated records prior to the readjudication of his claim by the RO. Finally, the Board observes that the veteran was afforded VA examinations in March and May 1993. It is clear from the examination reports that the examiners did not review the veteran's medical records or the records of the Methodist Hospital pertaining to the 1988 industrial accident. According to the United States Court of Veterans Appeals (Court), the veteran is entitled to a thorough examination which takes into account all relevant background information, including prior medical evidence. Roberts v. Derwinski, 2 Vet.App. 387 (1992). Accordingly, the Board finds that the veteran should be afforded another VA examination by an examiner who has thoroughly reviewed all the medical records contained in the claims file, including any records added pursuant to this remand. In addition, the Board finds that the medical examiner should provide a medical opinion as to whether the veteran had a disability of the lumbar spine prior to service, and , if so, if the underlying pathology increased in severity during the veteran's period of active service as may be reflected in the service medical records. Under the circumstances of this case, additional development is necessary in order to fulfill the VA's duty to assist. Accordingly, this matter is REMANDED for the following action: 1. The RO should contact the veteran and request the current address of the chiropractor(s) who treated him in 1988 at the West Hill Chiropractic Clinic. The RO should then contact and request copies of all clinical records of the veteran from the chiropractor(s). These records should be associated with the claims file. 2. The RO should contact the veteran and request all pertinent information regarding his 1988 automobile accident. In particular, the veteran should indicate if he received medical treatment following the accident and, if so, by whom and/or at what facility and/or through what insurance company. He should also indicate whether a police report was completed. All records should be associated with the claims file. 3. The veteran should be afforded a VA examination to determine the current nature and extent of any low back disability. The claims file must be made available to the examiner prior to the examination. The examiner should thoroughly review all the veteran's medical records including the service medical records, the medical records of the Methodist Hospital, and any additional records added to the claims file pursuant to this REMAND. All indicated x- rays and laboratory tests should be completed. The report of examination should include a specific diagnosis as to whether the veteran does or does not have a low back disability. The examiner should also provide a medical opinion as to whether or not the veteran had a disability of the lumbar spine prior to his entry into service, and, if so, the examiner should provide a medical opinion as to whether there was an increase in the underlying pathology of that disability of the lumbar spine during the veteran's period of service. 4. The RO should readjudicate the veteran's claim for entitlement to service connection for a low back disability. If the action taken is adverse to the veteran, he and his representative should be furnished a supplemental statement of the case that contains a summary of the relevant evidence and a citation and discussion of the applicable laws and regulations. He should also be afforded the opportunity to respond to that supplemental statement of the case before the claim is returned to the Board. No action is required of the veteran until further notice. The Board expresses no opinion, either factual or legal, as to the ultimate determination warranted in this case pending completion of the requested development. G. H. SHUFELT 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) (1994).