BVA9508110 DOCKET NO. 92-08 419 COVA NO. 93-713 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to an increased rating for lumbosacral sprain with traumatic arthritis, currently evaluated as 40 percent disabling. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD William H. Hickman, Associate Counsel INTRODUCTION This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 1989 and subsequent rating decisions of the Department of Veterans Affairs (VA) Pittsburgh, Pennsylvania, Regional Office (RO). The case was previously before the Board on May 7, 1993 at which time the Board issued a decision denying the veteran's claim. Subsequently, the veteran appealed this decision to the United States Court of Veterans Appeals (Court). In November 1994 the VA and the appellant herein (the parties) submitted a joint motion to the Court requesting that the Court stay all proceedings in the appeal and remand the claim to the Board. In that same month the Court granted the parties' joint motion. Consequently, the May 1993 decision of the Board has been vacated and the matter has been remanded to the Board for further review. REMAND In the joint motion granted by the Court in November 1994, the parties asked that the Board again consider the veteran's claim and, in doing so, specifically provide reasons and bases as to whether the veteran's service-connected lumbar disorder entitled him to an extraschedular rating under the provisions of 38 C.F.R. § 3.321(b)(1) as set out in the Court's decision of Ardison v. Brown, 6 Vet.App. 405 (1994). Additionally, it was noted by the parties that a current VA examination was not of record, and that the Board in its review of the appellant's claim might find a current examination helpful. In those exceptional cases where the schedular evaluations may be found to be inadequate, the regulation sets forth a guide to determine inadequacy. There should be an exceptional or unusual disability picture with marked interference with employment or frequent hospitalization. 38 C.F.R. § 3.321(b)(1) (1994). Accordingly, it will be necessary to supplement the record with medical opinion from the examiners as to whether this disability presents an exceptional or unusual disability picture and with documentation of frequency of absence from employment, reasons for termination of employment and periods of hospitalization. Additionally, the Board notes that the veteran's representative before the Court, a private attorney, had previously submitted in May 1994 a separate brief which, essentially, raised arguments of a medical nature not specifically addressed by the Board in its May 1993 decision and the resolution of which requires medical opinion. These arguments are as follows: a sprain is more serious than a strain and the diagnostic code used by the Board contemplates a strain; lumbarization is equivalent to ankylosis and should be rated under the diagnostic code for ankylosis; and muscle spasms are neurologic symptoms and should be rated as such. In view of the fact that these arguments represent medical opinion and the attorney is not competent to provide such opinion, these arguments will be referred to the examiners who will conduct the examination ordered by the Board. Espiritu v. Derwinski, 2 Vet.App. 492, 494 (1992) (lay witness is not capable of offering evidence requiring medical knowledge). The attorney also raised an objection to the February 1989 examination being conducted by an internist. Consequently, for the reasons set out above, further factual and procedural development of the record is required. Accordingly, the case is REMANDED to the RO for the following actions: 1. The RO should inquire of the veteran if he has received medical treatment at either VA or other medical facilities for the service-connected lumbosacral disorder with traumatic arthritis since January 1986. If so, the RO, after obtaining the necessary information and making the necessary arrangements, should obtain and associate with the claims folder, the medical records which are not already on file. Special attention should be given to any periods of hospitalization. 2. The veteran should also be contacted and requested to provide any information as to whether he is receiving retirements benefits or Social Security benefits. If he is receiving any such benefits, he should indicate whether any of them are based on a disability determination. If so, copies of the files which formed the basis for a finding of disability should be obtained and made part of the claims folder. If such records are not available, that fact should be annotated in the claims folder. 3. A social and industrial survey should be conducted. It should be ascertained what the veteran does on a daily basis. Family members, former coworkers, members of the community and the veteran should be interviewed. The purpose of the survey is to obtain information upon which to assess the impact solely of the service-connected lumbosacral sprain with traumatic arthritis on his daily activities. It is important to attempt to determine whether the service- connected disability has caused him to terminate his employment and whether treatment for the disability presents a significant interference with his daily activity. 4. Subsequently, the veteran should be scheduled for an examination by a VA orthopedist and neurologist to determine the nature and extent of the veteran's service-connected lumbosacral sprain with traumatic arthritis. The claims folder and a copy of this remand and the provisions of Diagnostic Codes 5003, 5010, 5289, 5292, 5293, 5295 of 38 C.F.R. Part 4 must be made available to and reviewed by the examiners prior to the examination. All necessary tests, including X-rays should be conducted and the results of the testing should be reviewed by the examiners prior to completion of their reports. The reports of examination should contain a detailed account of all pathology found on examination. Examiners should specifically comment on the presence or absence of pain and painful motion, weakness, instability, and range of motion including any ankylosis. The neurologist should specifically report on the presence of any neurologic abnormality which is part of, caused by or made worse by the service- connected lumbosacral sprain with arthritis. The examiners should also provide opinions as to the following: a. Whether there is a difference between sprain and strain and whether this difference should be taken into account in evaluating this disability. If it should be taken into account, the examiners should indicate how the difference should be considered. b. Is there lumbarization of the veteran's vertebra and is it part of, caused by, or made worse by the service-connected lumbosacral sprain with traumatic arthritis? If it is related to the service-connected disability, is it equivalent to ankylosis as contemplated in the rating schedule? c. Does the veteran have muscle spasms and are they a neurologic symptom in terms of rating the service-connected disability under the rating schedule provisions? d. From a medical standpoint, does the service-connected lumbosacral sprain with traumatic arthritis represent an exceptional or unusual disability picture? If there are any manifestations which cannot be disassociated from the service- connected disability but are found not to be part of, caused by, or made worse by the service-connected disability, they should be identified and fully described so they may be taken into account in arriving at the appropriate rating for the disability. The examiners should provide complete rationale for all conclusions reached. 5. The RO should review the claims folder and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. Specific attention is directed to the examination reports. If the requested examinations do not include fully detailed descriptions of pathology and all test reports, special studies or adequate responses to the specific opinions requested, any report found inadequate must be returned for corrective action. 38 C.F.R. § 4.2 (1994) ("if the [examination] report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes."). Green v. Derwinski, 1 Vet.App. 121, 124 (1991); Abernathy v. Principi, 3 Vet.App. 461, 464 (1992); and Ardison v. Brown, 6 Vet.App. 405, 407 (1994) 6. Subsequently, the RO should readjudicate the veteran's claim for an increased rating for the service-connected lumbosacral sprain with traumatic arthritis in light of the most recent findings by VA examiners. Any such adjudication must take into account whether the provisions of 38 C.F.R. 3.321(b)(1) are for application. If the claim remains denied, the veteran and his representative should be issued a supplemental statement of the case and be given the reasonable opportunity to respond thereto. The case should then be returned to the Board for further appellate review. The purpose of this REMAND is to further develop the evidence and afford the appellant due process of law. By this REMAND the Board intimates no opinion, either factual or legal, as to the ultimate disposition of the issues on appeal. No action is required by the veteran until he receives further notice from the RO. 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) (1994).