BVA9508160 DOCKET NO. 93-11 376 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a rating in excess of 10 percent for lumbosacral strain with degenerative disease for the period from February 27, 1987 through August 10, 1989. 2. Entitlement to an increased rating for lumbosacral strain with degenerative disease, currently evaluated as 20 percent disabling. 3. Entitlement to an increased rating for postoperative residuals of a fracture of the right femur with internal derangement of the right knee, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: AMVETS WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD James R. Siegel, Counsel INTRODUCTION The veteran served on active duty from April 1976 to March 1979. 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 August 1987, the RO denied service connection for a right knee disability and granted service connection for lumbosacral strain, for which a noncompensable evaluation was assigned. Following a hearing at the RO in December 1988, the hearing officer assigned the low back disability a 10 percent evaluation, effective February 27, 1987, and this decision was effectuated by a March 1989 rating decision. By rating action of January 1990, the RO recharacterized the veteran's service-connected low back disability as lumbosacral strain and lumbar disc disease, and assigned a schedular evaluation of 20 percent effective August 11, 1989. By rating decision in February 1991, the RO reclassified the veteran's right leg disability as postoperative residuals of a fracture of the right femur with internal derangement of the right knee, and continued the 10 percent rating assigned it. 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 (West 1991). The United States Court of Veterans Appeals (the Court) has held that a well-grounded claim is a plausible claim, one which 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 service-connected disabilities that are within the competence of a lay party to report are sufficient to conclude that his claims are 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). During a hearing at the RO in February 1992, the veteran referred to Department of Veterans Affairs (VA) treatment records from a clinic in Ohio which have apparently not been obtained. He also indicated that he had been treated by private physicians for his service-connected disabilities, but that no effort was made to procure such records. 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 evaluated the current state of the condition, the VA must provide a new examination. Olsen v. Principi, 3 Vet.App. 480, 482 (1992), citing Proscelle v. Derwinski, 2 Vet.App. 629, 632 (1992). In this case, the most recent VA examination for compensation purposes was conducted in January 1992, and the veteran appears to have made evidentiary assertions that his condition has increased in severity since that time. Under 38 C.F.R. § 3.326(a) (1994), a VA examination will be authorized where there is a possibility of a valid claim. The Board notes that, during the January 1992 VA orthopedic examination, the veteran complained of low back pain radiating down his left leg, as well as back pain on motion. It was also indicated that there was an approximate one inch shortening of the right leg. In line with the argument of the veteran's representative, he apparently has both an orthopedic and neurologic low back disability, and he has not been recently afforded a neurologic examination. In this regard, the representative has argued that the service-connected disabilities at issue in this case (lumbosacral strain/lumbar disc disease and right femur fracture residuals/derangement of the right knee) have been inappropriately "lumped" together, and that each separate disability identified should be evaluated on the basis of its functional impairment under 38 C.F.R.§ 4.10. Under the circumstances of this case, the Board finds that additional development of the record is required to ensure that the VA has met its duty to assist the veteran in developing the facts pertinent to the claim. Thus, 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 approximate dates of treatment of all medical providers, both private and VA, from whom he has received treatment for his low back and right lower extremity disabilities since 1992. After securing the necessary authorizations for release of information, the RO should seek to obtain copies of all treatment records referred to by the veteran for inclusion in the claims folder. 2. The veteran should then be afforded a VA examination by specialists in neurology and orthopedics, if available, to determine the nature and extent of his low back and right lower extremity disabilities. Concerning the low back, the examiners should be requested to delineate and quantify all functional impairment associated with his lumbosacral strain and his lumbar disc disease. With respect to the right lower extremity disability, the examiner should specify all hip and knee pathology present, and comment on the relationship, if any, between the service- connected residuals of a right femur fracture and any right leg shortening or other right lower extremity pathology found. All indicated testing deemed necessary should be performed. The claims folder should be made available to the examiners for review in conjunction with the examination. Following completion of the above development, the RO should again review the evidence and determine whether the veteran's claim may now be granted. If any benefit sought on appeal, for which a notice of disagreement has been filed, remains denied, the veteran and his representative should be furnished an appropriate supplemental statement of the case, and they should be given the opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The veteran need take no action until otherwise notified. J. F. GOUGH 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).