BVA9507594 DOCKET NO. 93-16 089 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to service connection for a kidney disorder. 2. Whether new and material evidence has been submitted to reopen claim of service connection for residuals of an injury to the right side and testicles. 3. Entitlement to an increased (compensable) evaluation for residuals of a fracture of the transverse processes of L2-4. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. M. Flatley, Counsel INTRODUCTION The veteran had active service from January 1940 to January 1946. This case came before the Board of Veterans' Appeals (Board) on appeal from a May 1992 rating decision of the Seattle, Washington, Department of Veterans Affairs (VA) regional office (RO). It is noted that by a January 1946 rating decision, entitlement to service connection for back strain and for an injury to the right side and testicles was denied. Although a copy of the notification of the determination is not of record, the veteran clearly received notification of the denial, as indicated by his attempt to "reopen" the claim in March 1992. By a May 1992 rating decision, it was determined that new and material evidence had not been submitted to reopen a claim of service connection for residuals of an injury to the right side and testicles; entitlement to service connection for residuals of a kidney injury was denied. By a June 1992 rating decision, it was determined that new and material evidence had not been submitted to reopen a claim of service connection for a back disability. Each issue was included in the statement of the case. Ultimately, the claim of service connection for residuals of a back injury was reopened and entitlement to service connection for residuals of a fracture of the transverse processes at L2-4 was allowed by a February 1993 rating decision. In the supplemental statements of the case issued in February and April 1993, the kidney disorder issue and the new and material evidence issue were consolidated; upon review of the substance of the documents, however, it is apparent that the RO conducted a de novo review with regard to the kidney disorder issue. Upon appellate review, the issue has been re-phrased to more accurately reflect the status of the claim. REMAND In a statement prepared in January 1994, the veteran's representative alleged that the veteran's VA general medical examination conducted in October 1992 was inadequate with respect to assessing the extent of the veteran's service-connected residuals of a fracture of the transverse processes at L2-4. In addition, VA outpatient data indicating additional treatment were received at the Board in May 1994; a history of osteopathic treatment was noted. It is unclear whether such treatment occurred recently as well as in the past. In addition, in correspondence received in February 1993, the veteran, in part, indicated that he wished to appeal the determination with respect to the fracture of the transverse processes at L2-4 and alleged that the entire disability of the lumbar spine must be considered as secondary to the service- connected disability. It is alleged that service connection is warranted for a back disability, other than residuals of a fracture of the transverse processes at L2-4, as secondary to his service-connected residuals of a fracture of the transverse processes at L2-4. The issue has not been clearly addressed on a secondary service connection basis, and as it may affect the disposition of the matter currently on appeal, requires further action. See Harris v. Derwinski, 1 Vet.App. 180 (1991). Under the circumstances, the Board is persuaded that additional development is warranted. The case is therefore REMANDED for the following: 1. After any necessary information and authorization are obtained from the veteran, copies of any recent treatment reports, VA or private, inpatient or outpatient, associated with the veteran's residuals of a fracture of the transverse processes at L2-4, should be requested by the RO and incorporated into the claims folder. 2. The RO should then schedule a special VA orthopedic examination to determine the extent and severity of the veteran's service-connected residuals of a fracture of the transverse processes at L2-4. The examination should be conducted in accordance with the pertinent provisions of the VA's Physician's Guide for Disability Evaluation Examinations. All indicated studies should be conducted. The examiner should identify any disorder present other than the veteran's residuals of a fracture of the transverse processes at L2-4 and should discuss whether there is any medical relationship between such pathology and the fracture residuals. The examination report should include a full description of the veteran's symptoms, clinical findings, and associated functional impairment. All findings should be recorded in detail, including range of motion of the veteran's lumbar spine, recorded in degrees. A comprehensive report, which represents consideration of the aforementioned factors, as well as the history of the veteran's disability, should be provided. The veteran's claims folder should be provided to the examiner for review. 3. The RO should then review the veteran's claim and address the issue of service connection for a back disability, other than residuals of a fracture of the transverse processes at L2-4, as secondary to the aforementioned service-connected disorder. With respect to the secondary service connection issue, the RO should provide the appellant and representative, notice of the determination and the right to appeal. If a timely notice of disagreement is filed, the appellant and his representative should be furnished with a statement of the case and given time to respond thereto. If the veteran's claim otherwise remains in a denied status, he and his representative should be provided with a supplemental statement of the case, which includes all pertinent law and regulations and a full discussion of action taken on the veteran's claim. The applicable response time should be allowed in either instance. The case should then be returned to the Board, if in order, after compliance with customary appellate procedures. No action is required of the veteran until he is so informed. The Board intimates no opinion as to the ultimate decision warranted in this case, pending completion of the requested development. The issues of entitlement to service connection for a kidney disorder and whether new and material evidence has been submitted to reopen a claim of service connection for residuals of injury to the right side and testicles are deferred, pending the return of the veteran's case to the Board. 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. 133-446, § 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).