BVA9503214 DOCKET NO. 93-12 341 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an increased rating for service-connected low back pain with flattening of the lumbar curve and minimal degenerative changes, with hemilaminectomy and discectomy at L4- L5 and L5-S1, currently rated as 40 percent disabling. 2. Entitlement to an increased (compensable) disability rating for service-connected right knee pain with some limitation of motion. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Richard E. Coppola, Associate Counsel INTRODUCTION The veteran had active service from November 1980 to July 1987. This matter came before the Board of Veterans' Appeals (Board) on appeal from a rating decision of March 1991 from the St. Petersburg, Florida, Department of Veterans Affairs (VA) Regional Office (RO), which denied a rating in excess of 20 percent for the veteran's service-connected low back disorder and an increased (compensable) rating for a right knee disability. REMAND In November 1987, the RO granted service connection for low back pain with flattening of the lumbar curve and assigned a noncompensable rating. In December 1989, the RO expanded service connection to include minimal degenerative changes and assigned a 20 percent disability rating. The evidence shows that the veteran experienced continued low back problems and the medical findings revealed low back disc pathology. Subsequently, he underwent surgery in November 1991 and June 1992 for these low back problems, including hemilaminectomy and discectomy. A July 1992 report of VA examination notes that the veteran's continued pain was indicative of lumbar radiculopathy. The physician reported that the physical examination was limited due to post-operative effects of the June 1992 surgery. The report also notes that the veteran was receiving additional treatment for his symptoms at the VA Medical Center, Pensacola, Florida. In October 1992, the RO expanded service connection to include hemilaminectomy and discectomy at L4-L5 and L5-S1, and awarded temporary total disability benefits under 38 C.F.R. § 4.30 (1993). The RO also increased the service-connected disability rating to 20 percent. The RO noted that a VA examination would be scheduled in July 1993 to determine nature and severity of his disability. That VA examination report has not been obtained. The representative contends that the July 1992 VA examination was inadequate because the physician could not fully examine the veteran due to post-operative symptoms. The representative also urges that a current VA examination should be conducted in order to assist the veteran in accordance with 38 U.S.C.A.. § 5107(a) (West 1991). Under the present circumstances, the Board finds that additional development of the evidence is necessary. Accordingly, the case is REMANDED for the following actions: 1. The veteran should specify whether he has received any inpatient and outpatient treatment for his service-connected low back and right knee disabilities since July 1992. The evidence indicates that he was scheduled for a VA compensation examination in July 1993, and that he has been receiving additional treatment for his symptoms at the VA Medical Center, Pensacola, Florida. After obtaining any needed authorization from the veteran, the RO should obtain copies of all these records. Any evidence obtained should be associated with the claims folder. 2. The veteran should then be afforded a special VA orthopedic and neurologic examinations to determine the nature and extent of all residuals of the service- connected low back disorder. The scope of the examinations should be broad enough to cover all residual conditions which are suggested by the veteran's complaints, symptoms or findings. The reported medical history should include any time lost from work due to the service-connected low back disorder. The examinations should be conducted in accordance with the Physician's Guide for Disability Evaluation Examinations. All necessary tests should be performed. The physicians must be provided the claims folder for review prior to examination. If either physician determines that there is a neurologic deficit of the lower extremities, that physician should provide an opinion as to the etiology of such deficit and the degree of probability that such deficit is caused by or related to the service-connected low back disorder, and whether these symptoms are persistent and compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to the diseased disc space in this case. The extent and duration of periods of relief, if any, should be described and the examiner should comment whether such impairment is consistent with the objective findings. 3. When the above development has been completed, the case should be reviewed by the RO, and any issues on appeal should be adjudicated. The rating decision should reflect consideration of all potentially applicable criteria, to include consideration of the applicability of 38 C.F.R. § 3.321(b)(1). 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 which summarizes the pertinent evidence, fully cites the applicable legal provisions not previously provided, and reflects detailed reasons and bases for the decision. They should then be afforded the applicable time period 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) (1993).