BVA9502683 DOCKET NO. 93-09 961 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to an increased (compensable) evaluation for a low back strain with left thigh weakness. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R. E. Smith, Counsel INTRODUCTION The veteran had active military service from June 1966 to November 1969. This appeal arises from a February 1992 rating decision of the Department of Veterans Affairs (VA) Los Angeles, California, Regional Office (RO) which confirmed the current noncompensable disability evaluation for the veteran's service-connected low back disorder. REMAND The veteran is seeking an increased (compensable) rating for his low back disability which he contends has grown progressively worse. Our preliminary review of the clinical data on file reveals that it contains little clinical information upon which to assess the veteran's current claim. In this regard, we note that a comprehensive VA examination of the veteran's service- connected low back disorder for rating purposes has not been conducted for many years. Due to the length of time involved since the last examination of the veteran's service-connected back disorder, it is the Board's belief that a more current examination is warranted. We are aware that in connection with an earlier claim the veteran failed to appear for a scheduled orthopedic examination in early 1991. We believe, however, in light of the contentions advanced and the paucity of clinical data currently on file that a further attempt to examine the veteran, in view of VA's statutory duty to assist him in development of his claim, is necessary prior to further appellate review of this matter. The United States Court of Veterans Appeals has held that the duty to assist includes obtaining VA examinations where appropriate. Littke v. Derwinski, 1 Vet.App. 90 (1990). Further, the Board observes that the veteran in his June 1992 substantive appeal has indicated that he has had recent X-rays taken of his back at the Long Beach VA Medical Center (VAMC). It does not appear that the report of these X-rays or any related clinical findings are contained within the VAMC records that were recently acquired by the RO in late 1991. Lastly, we observe that the veteran did not report for a scheduled hearing at the RO in March 1993 before a traveling member of the Board. His representative has suggested the possibility that the veteran did not report for his 1991 VA examination because notice of that examination may have been sent to an outdated address. It has been pointed out that the record shows several different addresses for the veteran. On review of the record, the Board believes that this is both a possible explanation for his failure to report for his 1991 VA examination as well as for his failure to report for his scheduled hearing in March 1993. In this regard, it appears that the veteran contacted the RO in December 1992 and reported that since July of that year his mailing address has been 6352 Flint Drive, Huntington Beach, California, 92647. The notice of his March 1993 hearing was mailed, earlier that same month, to an address in Long Beach, California. It is not certain from the record whether this notification was ever forwarded on to the veteran or, if so, whether it was done so in sufficient time such as to be timely. Accordingly, the Board hereby REMANDS this case for the following action: 1. The RO should verify the veteran's current mailing address and after so doing request that he identify each health care provider, VA or private, from whom he has received treatment for his service- connected back disorder since January 1992. The RO should then attempt to obtain any needed release from the veteran and secure and associate all pertinent records, not currently on file, with his claims folder. 2. All up-to-date VA medical records, from Long Beach VAMC or any other VA facility identified by the veteran, should be obtained. 3. After the above records have been secured, the RO should schedule the veteran for a special orthopedic examination to determine the nature and extent of his low back disability. All necessary tests and studies should be accomplished, and all clinical manifestations should be reported in detail. The claims folder should be made available to the examiner for review prior to the examination. A copy of the letter notifying the veteran of this examination should be placed in the claims folder. 4. After completion of the above actions, the veteran should then be accorded a further opportunity, if he so desires, for a personal hearing on appeal at the RO in connection with his current claim. The various hearing options available to him should be explained. If the veteran requests and is scheduled for a hearing, and fails to show for this hearing, that fact should be specifically noted in the record. When the aforementioned development has been accomplished, the case should be reviewed by the RO. In the event that the benefit appealed for is not granted, the veteran and his representative should be furnished with a supplemental statement of the case and afforded the opportunity to respond. The case should then be returned to the Board for further appellate review. No action is required of the veteran until he receives further notice. The Board expresses no opinion as to the ultimate outcome of this case. D. C. SPICKLER 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) (1993).