BVA9504199 DOCKET NO. 91-44 165 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a psychiatric disability. 2. Entitlement to an increased rating for degenerative disc disease, L5-S1, currently evaluated as 20 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD James R. Siegel, Counsel INTRODUCTION The veteran served on active duty from May 1977 to February 1978. This matter comes before the Board of Veterans' Appeals (the Board) on appeal from decisions from the Regional Office (RO). By rating action dated in January 1990, the RO reduced the 20 percent evaluation which had been in effect for the veteran's service-connected low back disorder to 10 percent, effective April 1990. The veteran disagreed with the reduction. In a rating decision of September 1990, the RO denied the veteran's claim of entitlement to service connection for a psychiatric disability. This case was before the Board in April and December 1992, and was remanded on each occasion for additional development. Based in part on the findings of a Department of Veterans Affairs (VA) examination conducted in March 1993, the RO, by rating action of April 1993, assigned a 20 percent schedular rating for the veteran's low back disorder, effective January 1991. The veteran has continued to express disagreement with the assigned rating. The veteran's representative has argued that the veteran is unable to work as a result of his back disability. The Board construes this statement as a claim for a total rating based on individual unemployability due to service-connected disability. Since this matter was not developed or certified for appellate review, it is referred to the RO for appropriate action. REMAND The initial question before the Board is whether the veteran has submitted a well-grounded claim as required by 38 U.S.C.A. § 5107. The United States Court of Veterans Appeals (the Court) has held that a well-grounded claim is one which is plausible, that is meritorious on its own or capable of substantiation. Murphy v. Derwinski, 1 Vet.App. 78 (1990). In this case, the veteran's evidentiary assertions concerning the severity of his back disability that are within the competence of a lay party to report are sufficient to conclude that his claim for an increased rating for his service-connected low back disorder is well- grounded. Proscelle v. Derwinski, 2 Vet.App. 629 (1992); Espiritu v. Derwinski, 2 Vet.App. 492 (1992), King v. Brown, 5 Vet.App. 19 (1993). The veteran has asserted that his psychiatric disorder is due to his service-connected degenerative disc disease of L5-S1. When the veteran was afforded a psychiatric examination by VA in March 1993, he related that his back disorder created a difficult situation for him. The fact that he was unable to work made him frustrated and angry. Following an examination, the diagnoses included dysthymic disorder and personality disorder. It is significant to point out that pain was listed as a psychosocial stressor. The Board also notes that although it had requested that the psychiatrist furnish an opinion concerning the etiology of the veteran's psychiatric disability, no such opinion was provided. When the veteran was examined for his back disability by VA in March 1993, he indicated that he was receiving treatment for it at the VA clinic in Waco, Texas. It is not clear whether all such records have been associated with the claims folder. VA has a duty to assist the veteran in the development of facts pertinent to his claim. 38 U.S.C.A. § 5107(a) (West 1991). The Court has held that the duty to assist the veteran in obtaining and developing available facts and evidence to support his claim includes obtaining adequate VA examination. This duty is neither optional nor discretionary. Littke v. Derwinski, 1 Vet.App. 90 (1990). This duty also includes providing additional VA examinations by a specialist when recommended. Hyder v. Derwinski, 1 Vet.App. 221 (1991). The fulfillment of the statutory duty to assist includes conducting a thorough and contemporaneous medical examination, one which takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one. Green v. Derwinski, 1 Vet.App. 121, 124 (1991). The Court has held that where the veteran claims that a disability is worse than when originally rated, and the available evidence is too old to adequately evaluate the current state of the condition, VA must provide a new examination. Olson v. Principi, 3 Vet.App. 480, 482 (1992), citing Proscelle v. Derwinski, 2 Vet.App. at 632. Under the circumstances of this case, the Board finds that additional development of the record is required. Accordingly, the case is REMANDED to the RO for action as follows: 1. The RO should contact the veteran and request that he furnish the names, addresses, and dates of treatment of all medical providers, including VA, from whom he has received treatment for his back disability since 1993. He should execute the proper authorization forms for release of this information. 2. Thereafter, the RO should seek to obtain copies of all treatment records referred to by the veteran. 3. The veteran should then be afforded a VA examination by specialists in orthopedics, neurology and psychiatry, if available, to determine the nature and extent of his low back and psychiatric disabilities. All necessary tests should be performed. The psychiatrist should specify the current psychiatric diagnosis, and he is to be directed to furnish an opinion as to whether it is at least as likely as not that the veteran's psychiatric disability was caused by his service-connected back disorder. The claims folder should be made available to the examiner in conjunction with the examination. Following completion of the above, the RO should review the evidence and determine whether the veteran's claim may now be granted. If not, he and his representative should be furnished an appropriate supplemental statement of the case, and the case should then be returned to the Board for further appellate consideration. RICHARD B. FRANK 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) (1994).