BVA9508056 DOCKET NO. 93-16 173 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to an increased evaluation for fibromyositis of the cervical and thoracic area with degenerative joint disease of the lumbar spine, currently rated 20 percent disabling. REPRESENTATION Appellant represented by: AMVETS ATTORNEY FOR THE BOARD S. L. Kennedy, Counsel INTRODUCTION The veteran served on active duty from January 1944 to June 1946 and from May 1951 to December 1951. This appeal arises from a November 1992 rating decision of the Department of Veterans Affairs (VA), St. Paul, Minnesota, Regional Office (RO). In that decision, the RO denied the veteran's claim of entitlement to an increased evaluation for his service-connected back disability. In a May 1993 rating decision, the RO increased the disability evaluation assigned the veteran's service-connected fibromyositis of the cervical and thoracic spine with degenerative joint disease of the lumbar spine to 20 percent. The Board of Veterans' Appeals (Board) notes that the record on appeal indicates that the veteran was scheduled for a personal hearing to be held at the RO in February 1993; however, in January 1993, the veteran requested that the RO cancel that hearing. REMAND From a review of the record, the Board notes that service connection for low back pain was granted in a July 1946 VA regional office rating decision, and a 10 percent disability evaluation was assigned, effective from June 14, 1946, the day after the veteran's discharge from his first period of active duty. In a January 1948 rating decision, the regional office determined that no change was warranted in the 10 percent disability evaluation assigned the veteran's service-connected back disability which was characterized as low back pain, arthralgia, based on either the medical evidence of record at the time or based on the application of the new rating schedule. By letter dated in January 1948, the veteran requested termination of the payment of his disability compensation because of his Reserve status. By letter dated in May 1965, the veteran requested that the regional office resume payment of his compensation for his service-connected back disability. Thereafter, in a subsequently rendered May 1965 rating decision, the RO indicated that compensation payments were to be reinstated effective from October 19, 1964, for the veteran's service- connected back disability, now characterized as fibromyositis of the cervical and thoracic areas. The record reflects that the 10 percent rating for this disability remained in effect until the May 1993 rating decision referenced above in which it was determined that a 20 percent disability rating was in order for fibromyositis of the cervical and thoracic spines with degenerative joint disease of the lumbar spine. The veteran's accredited representative in this case has requested that the Board remand the case to the RO for additional development. He has asserted on the veteran's behalf that not only was the most recent VA examination inadequate for purposes of rating the disability at issue, but has essentially asserted that the appellate issue involves at least two separate and distinct disabilities, including fibromyositis of the cervical and thoracic areas, and degenerative joint disease of the lumbar spine. It is asserted that not only does the nature of these disabilities require separate evaluation by a competent medical personnel, but also separate and distinct rating consideration by the RO. He argues, further, that although the diagnoses on the most recent VA examination included "anterior listhesis" of the cervical spine, the reported findings on most recent examination were limited to the lower back. It is requested that further VA examination should be conducted to obtain additional findings related to the entire spine, including range of motion studies, as well as to investigate the suggestion of radicular involvement demonstrated by the medical evidence of record. The VA has a duty to assist a claimant in the development of facts pertinent to his or her claim under 38 C.F.R. § 3.103(a) (1994). The United States Court of Veterans Appeals has held that fulfillment of the VA's duty to assist the veteran includes providing him with a thorough and contemporaneous medical examination. Littke v. Derwinski, 1 Vet.App. 90, 92 (1990). In this regard, the Board notes that under Diagnostic Code 5021 of the VA Schedule for Rating Disabilities, myositis is rated on the basis of limitation of motion of the affected parts. The Board notes, further, that service connection is clearly in effect for different anatomical segments of the veteran's spine. However, upon a careful review of the medical evidence in this case, it appears that further examination is necessary in order for the RO to properly rate the disabilities at issue. Although at the time of the January 1993 VA examination, the veteran reported only having an occasional "kink" in the thoracic and cervical areas, significant findings related to the cervical spine were reported on x-ray. However, it does not appear from the record that the veteran's cervical spine was examined. Moreover, the Board notes that the additional evidence of record does suggest some complaints of radicular pain and at least one reported finding of intervertebral disc disease of the lumbar spine. In light of the foregoing, the Board has determined that additional examination is necessary in order to properly rate the service-connected disabilities at issue. Fulfillment of the duty to assist the appellant includes the procurement and consideration of any relevant VA or other medical records. Ferraro v. Derwinski, 1 Vet.App. 326 (1991). The record reflects that the veteran has received ongoing medical treatment, both VA and private, primarily for symptomatology associated with his disability of the lumbar spine. The RO should ensure that any available relevant treatment records are associated with the assembled records. In view of the foregoing, and in order to fully and fairly adjudicate the veteran's claim, the case is REMANDED to the RO for the following action: 1. The RO should request that the veteran identify all sources of medical treatment received for the disabilities at issue since August 1992, and furnish signed authorizations for release to the VA of private medical records in connection with each non-VA medical source he identifies. Copies of the medical records from all sources he identifies (not already in the claims folder) should then be requested. All records obtained should be added to the claims folder. 2. The veteran should be afforded appropriate VA examinations in orthopedics and neurology to determine the nature and severity of his service-connected fibromyositis of the cervical and thoracic area and his degenerative joint disease of the lumbar spine. The scope of the examination should be broad enough to cover all residual conditions which are suggested by the veteran's complaints, symptoms or findings at the time of examination. All pertinent complaints or symptoms having a medical cause should be covered by a definite diagnosis. The examinations should be conducted in accordance with the VA Physician's Guide for Disability Evaluation Examinations. All indicated diagnostic tests and procedures should be accomplished. The report should summarize all significant positive findings with respect to each service-connected anatomical segment of the veteran's back/neck, including separate range of motion findings where appropriate. All disability should be evaluated in relation to its history, with emphasis upon the limitation of activity, to include employability, imposed by the disorder in light of the whole recorded history. The examiners are requested to describe all symptomatology related to any diagnosed intervertebral disc disease and the degree of probability of its relationship to service-connected disability. The claims folder should be made available to the examiners prior to the examination. 3. The RO should readjudicate the veteran's claim with consideration of the appropriateness of assigning separate ratings for the different anatomical segments represented by the veteran's service-connected fibromyositis of the cervical and thoracic area and his degenerative joint disease of the lumbar spine. The rating should reflect consideration of the provisions of 38 C.F.R. § 3.321(b)(1) (1994). If the determination remains adverse to the veteran, he should be provided a supplemental statement of the case which includes a summary of additional evidence submitted, any additional applicable laws and regulations, and the reasons for the decision. The veteran and his representative should be afforded the applicable time to respond. The case should then be returned to the Board for further appellate review. The purpose of this REMAND is to obtain additional evidence and ensure that the veteran is afforded all due process of law. The Board intimates no opinion, either factual or legal, as to the ultimate conclusion warranted in this case. THOMAS J. DANNAHER 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).