BVA9505097 
DOCKET NO.  93-15 858     )       DATE
          )
          )

On appeal from the decision of the
Department of Veterans Affairs Regional Office in Albuquerque,
New Mexico

THE ISSUE

Entitlement to an increased (compensable) rating for low back
disability.

REPRESENTATION

Appellant represented by: Disabled American Veterans

ATTORNEY FOR THE BOARD

Jeffrey A. Pisaro, Counsel

REMAND

The veteran had active service from September 1951 to August
1953.  This appeal arises from a November 1992 rating decision of
the Albuquerque, New Mexico, Regional Office (RO).

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) (1994).  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).  On the substantive appeal,
the veteran refers to treatment by physicians; however, not many
treatment records are available.  For example, a February 1990
notation from Barry Diskant, M.D., refers to an April 1989 back
injury and continuing treatment by Dr. Diskant.  Complete medical
treatment records regarding the back since the veteran was
separated from service should be obtained.

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.
Despite the veteran's contentions regarding the chronic and
severe nature of his back disability, the veteran has not been
afforded a VA rating examination in many years.  In view of the
foregoing, following the gathering of all medical records, the
veteran should be afforded a VA orthopedic examination.

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 since separation
from service.  Thereafter, the RO should
obtain legible copies of all records which
have not already been obtained to include
those from Dr. Diskant and all records
stemming from his April 1989 back injury.
Once obtained, all records must be
associated with the claims folder.

2.  Following completion of above
development, the veteran should be afforded
a VA orthopedic examination to determine
the nature and extent of all disability of
the low back.  All indicated tests, to
include complete range of motion studies,
should be accomplished.  It is imperative
that the physician review the entire claims
folder prior to the examination.  All
disability should be evaluated in relation
to its history, with emphasis upon the
limitation of activity, to include time
lost from employment, imposed by the
disabling condition in light of the whole
recorded history.  The examiner should
express an opinion as to the date of onset
of all low back disability found, to
include the degree of probability, if any,
that low back pain and/or any current low
back disability diagnosed resulted from
injuries suffered during service as opposed
to an April 1989 work accident.

3.  When the above developments have 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.  They
should then be afforded the applicable time
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.

          CHARLES E. HOGEBOOM
          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 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) (1994).