BVA9506079 DOCKET NO. 92-09 165 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for a back disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Stephen F. Sylvester, Counsel INTRODUCTION The veteran had active service from November 1965 to October 1968. This case was previously before the Board of Veterans' Appeals (Board) in May 1993, at which time it was remanded for additional development. The veteran's appeal also originally included the issue of entitlement to service connection for post-traumatic stress disorder. By a rating decision of January 1994, the Regional Office (RO) granted service connection for post- traumatic stress disorder. Accordingly, one of the issues formerly on appeal, that of entitlement to service connection for post-traumatic stress disorder, has been rendered moot. As such, it is no longer part of the appeal currently before the Board. In response to the Board's May 1993 request the RO, in a September 1994 rating decision, adjudicated and denied the issue of whether clear and unmistakable error was contained in an August 1971 rating decision . In a January 1995 written statement, the veteran's representative listed as an issue "whether or not clear and unmistakable error was demonstrated in the rating decision of August 4, 1971." However, since a notice of disagreement was not filed and this matter was not fully developed for appellate review, it is referred to the RO for any appropriate action. See 38 C.F.R. § 20.201 (1994). The RO denied entitlement to service connection for a chronic back disorder in an August 1971 rating decision. A subsequent rating decision in May 1974 and a Board decision of August 1986 confirmed the aforementioned denial of service connection for a back disability on the basis that new and material evidence had not been submitted. The veteran's current appeal involves the question of whether new and material evidence has been submitted since the August 1971 denial, the last decision on the merits. See Glynn v. Brown, 6 Vet.App. 523 (1994). After a review of the evidence received since the last decision on the merits, the Board has concluded that the additional evidence is new and material. In particular, the veteran submitted several supporting lay statements, including one from a service associate, and a VA examiner in 1993 indicated that a symptom of pain and possibly a fracture resulted from service. While clarification of the VA examiner's opinion is necessary before the Board may render a final determination, such evidence at least raises the possibility of a change in the outcome of the claim. Accordingly, the issue on the title page of this decision has been characterized as entitlement to service connection for a back disorder. See Bernard v. Brown, 4 Vet.App. 384 (1993). REMAND Upon review of this case, there continues to exist some question as to the exact nature and etiology of the veteran's current low back disability. As noted above, further medical clarification is necessary before a final decision may be rendered. Accordingly, the case is REMANDED to the RO for the following: 1. Any pertinent VA or other inpatient or outpatient treatment records, subsequent to July 1993, the date of the veteran's most recent VA medical examination, should be obtained and incorporated in the claims folder. The veteran should be requested to sign the necessary forms for release of any private medical records to the VA. 2. The veteran should then be afforded a VA orthopedic examination in order to, as precisely as possible, determine the nature and etiology of his current back disorder. All pertinent symptomatology and findings should be reported in detail. The examiner should be asked to provide an opinion as to the degree of probability that fractures of the right transverse processes of the lumbar vertebrae noted on X-ray studies in March 1970, and confirmed on subsequent radiographic examination in June 1971, resulted from a helicopter crash in August 1968. Such an opinion is requested in light of the veteran's report of a motor vehicle accident in 1970, at which time, by his own admission, he injured his back. After the examiner identifies any other back disorder, an opinion should also be provided as to the degree of probability that each disorder is causally related to service. The claims folder must be furnished to the examining physician prior to evaluation in order to facilitate the study of the case. Following completion of the above actions, the RO should review the evidence on a de novo basis. If the claim remains denied, the veteran and his representative should be provided with an appropriate supplemental statement of the case, and given an ample opportunity to respond. The case should then be returned to the Board for further appellate review. In this REMAND of the claim for further development, the Board does not intimate any opinion as to the ultimate determination warranted. No action is required of the appellant until he receives further notice. M. SABULSKY 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).