BVA9502389 DOCKET NO. 93-13 035 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUE Entitlement to an increased disability rating for a back disorder, currently rated as 40 percent disabling. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD K. Keyes, Associate Counsel INTRODUCTION The veteran served on active duty from July 1989 to February 1992. This matter comes before the Board of Veterans' Appeals (Board) from May 1992 and March 1993 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa. The May 1992 rating decision granted service connection for a back disorder and assigned a disability rating of 20 percent. The March 1993 rating decision granted an increase in the veteran's disability rating to 40 percent. REMAND The veteran contends that the RO committed error in denying his claim for an increased disability rating for his service-connected back disorder, currently rated as 40 percent disabling. Upon VA examination in February 1993, the examiner, having reviewed VA x-ray and bone scan reports on the veteran's back, both of which were conducted in December 1992 and reflected no abnormalities except narrowing at L5-S1, concluded that the veteran's low back pathology should be ruled out by a CT myelogram or MRI. The examiner recommended that the veteran have further evaluation in the Orthopedic Clinic for consideration of the CT myelogram or MRI, and, if these tests were negative, the examiner thought the veteran could be considered for an epidural steroid injection. Similarly, upon VA examination in April 1992, the examiner recommended an MRI to rule out the possibility of herniated nucleus pulposus. Moreover, the Board notes that VA regulations state that it is "essential that the examination on which ratings are based adequately portray . . . functional loss" of the part of the body being examined with respect to the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance." 38 C.F.R. § 4.40 (1993). Section 4.40 further provides that functional loss may be due to "pain, supported by adequate pathology and evidenced by the visible behavior of the claimant." Section 4.45 states that in evaluating the disability of joints, which includes the lumbar vertebrae, the lumbosacral articulation, and both sacroiliac joints, factors to be considered include "[p]ain on movement." 38 C.F.R. § 4.45(f) (1993). The United States Court of Veterans Appeals has held that the Board may not base its conclusions about the degree of disability "on a VA medical examination which fail[s] to adhere to the mandate of 38 C.F.R. § 4.40 that examinations upon which ratings are based adequately portray functional loss due to pain, and determine whether pain 'was evidenced by the visible behavior of the claimant' . . . ." Voyles v. Brown, 5 Vet.App. 451, 453(1993), citing Quarles v. Derwinski, 3 Vet.App. 129, 140 (1992); see also Schafrath v. Derwinski, 1 Vet.App. 589, 593 (1991). In this regard, the Board notes that the February 1993 examination report was somewhat unclear as to the effect of pain on the veteran's movements. The examiner noted that certain motions "aggravate some discomfort across the lumbosacral area" but concluded with regard to "objective evidence of pain on motion" that the veteran's back was "nontender at this time." The Board notes that the veteran indicated in his June 1992 notice of disagreement that he felt he should be rated as 100 percent disabled and that, in February 1993, the VA examiner noted in a history provided by the veteran that he had left a job with a tire company because of aggravation of his back disorder, got a job involving lighter work in a factory, but had to leave that job because it involved his being on his feet most of the time which aggravated his back disorder. The veteran reported that he had not been employed since July 1992. In light of the foregoing and to ensure that the VA has met its duty to assist the claimant in developing facts pertinent to the claim and to ensure full compliance with due process requirements, the case is REMANDED to the RO for the following developments: 1. A social and industrial survey should be conducted. It should be ascertained if the veteran is working. Family members, former coworkers, members of the community and the veteran should be interviewed. Information should be obtained with reference to his educational background and his work history. The purpose of the survey is to obtain information upon which to assess the impact of the service-connected back disorder on the veteran's ability to secure or follow a substantially gainful occupation. 2. Following this, the RO should schedule the veteran for the tests recommended by the VA examiner. Following these studies, special orthopedic and neurologicexaminations should be conducted. The claims folder and a copy of this remand must be made available to and reviewed by the examiners prior to the examinations. The report of examination should include a detailed account of all manifestations of back pathology found to be present, including a description of the effect, if any, of the veteran's pain on the function and movement of the back. All necessary tests should be conducted, and the examiners should review the results of any testing prior to completion of the report. The neurologist should provide an opinion as to whether there is any neurologic abnormality present and whether it is part of or caused by the service-connected back disorder. The examiners should also assess the impact of the service-connected disorder on the veteran's ability to obtain and maintain gainful employment. The physicians should provide a comprehensive report including complete rationale for any conclusions reached. 2. The RO should review the examination report and determine if it is adequate for rating purposes and in compliance with this remand. If not, the report should be returned for correction. 3. After readjudicating the claim and assigning a disability rating, the RO should consider the claim under the provisions of 38 C.F.R. § 4.16(a), if the veteran meets the minimum rating requirements. If he does not, the RO should consider whether the claim presents such an exceptional or unusual disability picture to warrant consideration under 38 C.F.R. §§ 3.321(b), 4.16(b) (1993). Following completion of these actions and, if the decision remains unfavorable, the veteran and representative should be provided with a supplemental statement of the case and afforded a reasonable period of time in which to respond. Thereafter, in accordance with the current appellate procedures, the case should be returned to the Board for completion of appellate review. No action is required of the veteran until further notice is issued. 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) (1993).