BVA9508249 
DOCKET NO.  93-19 034     )       DATE
          )
          )

On appeal from decisions of the
Department of Veterans Affairs Regional Office in Montgomery,
Alabama

THE ISSUE

Entitlement to an increased evaluation for chronic lumbosacral
strain, currently rated as 10 percent disabling.

REPRESENTATION

Appellant represented by: The American Legion

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

T. Hal Smith, Counsel

INTRODUCTION

At the time of the veteran's separation from service in November
1987, he had a total of approximately 20 years of active duty.
This appeal arises from rating decisions of the Department of
Veterans Affairs (VA) Regional Office (RO) in Montgomery,
Alabama.

REMAND

The veteran, in essence, contends that a rating in excess of 10
percent is warranted for chronic lumbosacral strain.  In
particular, he alleges that there has been an increase in back
symptomatology as evidenced by recent back surgery.

The RO certified the veteran's case for appeal in August 1993.
Since then, additional pertinent records, and specifically the
report of back surgery (partial hemilaminectomy at L5 with
removal of subcapsular disc extrusion at L5-S1) and subsequently
dated follow-up reports, have been associated with his claims
folder.  Under the provisions of 38 C.F.R. § 20.1304(c) (1994),
pertinent records received under such circumstances "must" be
referred to the RO for review and preparation of a supplemental
statement of the case "unless this procedural right is waived by
the appellant....Such waiver must be in writing...."  A review of
the claims folder does not reveal that any such waiver has been
submitted with regard to these records.

Accordingly, this case is REMANDED for the following:

1.  The appellant should be afforded a
special VA orthopedic examination, in
order to ascertain the severity of his
current low back disorder.  All tests
indicated should  be performed, and the
physician should specify which current low
back symptoms are considered part and
parcel of the service-connected
lumbosacral strain.  The report of this
examination should be associated with the
claims file.

2.  The RO is to consider all records
received by VA subsequent to the RO's
certification of the veteran's claim for
appeal in August 1993 and the examination
report requested above, and determine
whether an increased rating is warranted
for chronic lumbosacral strain.  If the
decision remains adverse to the veteran,
he and his representative should be
provided with a supplemental statement of
the case, and with a reasonable period of
time within which to respond thereto.  The
case should thereafter be returned to the
Board for further review, as warranted.

The veteran need take no action unless he is so informed.  The
purpose of this REMAND is to ensure compliance with due process
considerations.

          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) (1993).