BVA9500156 DOCKET NO. 93-11 661 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to an increased rating for service-connected muscular low back pain with degenerative changes and narrowing, L5- S1, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. S. Nemeth, Associate Counsel INTRODUCTION The veteran's active service extended from June 1983 to November 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 1992 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California, which granted service connection and assigned a 10 percent disability rating for muscular low back pain with degenerative changes and narrowing L5-S1. REMAND The veteran contends that he should be granted an increased disability rating for his service-connected back disorder due to chronic pain which increases in severity upon any type of exertion. He claims that his low back pain increases to such a point so as to prevent him from pursuing daily activities, including his occupation as a printer. The veteran expressed concern with the adequacy of the January 1992 VA examination used to adjudicate his claim. He contends that the January 1992 examination failed to consider his complaints of pain. It appears that the January 1992 examination was done in accordance with the Physician's Guide for Disability Evaluation Examinations (Physician's Guide). Range of motion was normal, reflexes were active, sensation was normal, and there was no objective evidence of pain. VA clinical records made since the January 1992 examination, show complaints of increasing pain despite various types of treatment. According to various decisions by the U.S. Court of Veterans Appeals, the Board is required to consider the application of 38 C.F.R. § § 4.40 and 4.45(f) (1993) when the record contains frequent references by the veteran to pain affecting his body. See Voyles v. Brown, 5 Vet.App. 451 (1993); Quarles v. Derwinski, 3 Vet.App. 129 (1992); Schafrath v Derwinski, 1 Vet.App. 589 (1991); Hatlestad v. Derwinski, 1 Vet.App. 164 (1991); see also Douglas v. Derwinski, 2 Vet.App. 435 (1992) (en banc). 38 C.F.R. § 4.40 (1993) states that "functional loss... may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant...." It also states that "a part which becomes painful on use must be regarded as seriously disabled." Although there were no visible signs of pain in the January 1992 examination, the veteran has since exhibited visible behavior indicative of pain through the limitation of extension, pain on heel walking, and tenderness and edema in his back. It appears, from the VA progress notes dated September 1992, that the veteran was scheduled for examinations in December 1992 and March 1993. If those examinations were completed, there are no records of such attached to the claims file. The RO should obtain the veteran's complete VA records. Additionally, there are a number of diagnoses contained in the claims file that need to be addressed. In a January 1992 VA examination, the veteran was diagnosed with borderline anterior wedging of T12; bilateral spondylolysis with borderline first degree spondylolisthesis of L5 and S1; and spina bifida occulta of S1. In VA examinations of August and September 1992, the veteran was found to have various back disorders including disc disease of the low back, pars defect, and anterolisthesis. The RO should determine which, if any, of the veteran's back conditions are related to service. The veteran should be afforded orthopedic and neurologic examinations to diagnose the veteran's back condition(s), to determine how the various conditions affect the veteran, and to ascertain which ones, if any, are related to his in-service injuries. In view of the foregoing, it is the opinion of the Board that this case should be remanded to the RO for the following development: 1. The RO should obtain from the veteran a list of all doctors and hospitals that have treated him for his back condition since separation from service, including the dates and locations of the treatments. The RO should obtain all necessary signed releases and obtain all records that are not currently associated with the claims file. These records should then be attached to the claims file. 2. The veteran should be accorded an orthopedic and neurologic examination by a VA physician specializing in disorders of the back. A copy of this remand and the claims folder must be made available to and be reviewed by the examiner prior to the examination. The report of examination should include a detailed account of all manifestations of back pathology found to be present. All necessary tests and X-rays should be conducted and the examiner should review the results of any testing prior to completion of the report. Special attention should be given to the presence or absence of pain, any limitation of motion, instability and weakness. Specifically, the examiner should render an opinion on the following: A. The impact of pain on any functional loss of the veteran's back. B. Whether there is evidence of anterior wedging of T12. If so, the examiner should comment on its pathology, etiology, symptomatology, and its relationship to the veteran's service-connected back disability, if any. The examiner should also render an opinion, if possible, on whether anterior wedging of T12 was present in service or is due to the veteran's inservice injuries. C. Whether there is evidence of spina bifida occulta of S1. If so, the examiner should comment on its pathology, etiology, symptomatology, and its relationship to the veteran's service-connected back disability, if any. The examiner should also render an opinion, if possible, on whether spina bifida occulta of S1 was present in service or is due to the veteran's inservice injuries. D. Discuss the prognosis of each disability diagnosed, especially the probability of the manifestations of each disability being permanent, how each disability interacts with the others, and which manifestations are due to the service-connected disability. The examiner should provide complete rationale for all conclusions reached. 3. The RO should review the examination report and determine if it is adequate for rating purposes and in compliance with this Remand. If not, the report should be returned for corrective action. 4. The RO should formally adjudicate service connection for all pathology, other than the service-connected back disorder, found on examination. Following completion of these actions, the RO should review the veteran's claim. If the decision remains unfavorable, the veteran and his representative should be provided with a supplemental statement of the case and afforded a reasonable period of time in which to respond. Thereafter, the case, in accordance with the current appellate procedures, should be returned to the Board for completion of appellate review. No further action on the part of the veteran is required until further notice. JAN DONSBACH 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).