BVA9503534 DOCKET NO. 93-13 185 ) 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 postoperative cervical fusion. 2. Entitlement to service connection for residuals of a left arm injury. 3. Entitlement to service connection for the residuals of a left leg injury. 4. Entitlement to service connection for lumbosacral strain. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. L. Kennedy, Counsel REMAND The veteran had active duty in the Armed Forces from September 1975 to September 1978, with additional periods of active duty for training with the Army National Guard between November 1978 and November 1989. This appeal arises from an April 1991 rating decision of the Department of Veterans Affairs (VA), Waco, Texas, Regional Office (RO). In that decision, the RO denied service connection for postoperative cervical fusion, residuals of a left arm injury, and residuals of a left leg injury. In a January 1993 rating decision, service connection for lumbosacral strain was denied by the RO. The Board of Veterans' Appeals (Board) notes that the record indicates that the veteran served on active duty in the U.S. Army from September 1975 to September 1978. The record also indicates that the veteran was attached to an Army National Guard Unit from November 1978 through November 1989. The veteran essentially has asserted that the disabilities for which he is seeking service connection occurred following a motor vehicle accident in 1984 and that those disabilities increased in severity following a second motor vehicle accident in 1986. From a review, it is unclear whether the RO has considered all pertinent periods of the active duty for training following the 1984 active duty for training accident as set forth in 38 U.S.C.A. § 101(24) (West 1991). As the applicable law and regulations governing service connection for periods of active duty for training essentially require the VA to undertake separate analyses for each period of service, the RO must set forth specifically by dates all pertinent periods and consider whether the disabilities claimed were incurred in or aggravated during each period. The Board also notes that the veteran in the substantive appeal indicated that the issue of service connection for postoperative cervical fusion, residuals of a left arm injury, and residuals of a left leg injury are not issues, and he made specific argument only with respect to the issue of service connection for lumbosacral strain. Subsequently, the veteran's local accredited representative in his VA Form 1-646 (Statement of Accredited Representation in Appealed Case) dated in May 1993 appeared to indicate that all four issues as reflected on the title page of this remand decision were still in appellate status and all were certified to the Board by the RO. However, the veteran's representative in additional written argument submitted to the Board dated in March 1994 interpreted the veteran's statement in his substantive appeal essentially as a withdrawal of his appeal with respect to the three issues, and therefore, only presented argument addressing the issue of service connection for lumbosacral strain. The RO should clarify this issue on remand. As noted above, the RO denied service connection for lumbosacral strain in a January 1993 rating decision. In that decision, the RO indicated that although the veteran was diagnosed as having lumbosacral strain following a June 1984 motor vehicle accident, VA examination conducted in September 1990 showed no evidence of lumbosacral strain. However, from a careful review of the report of the September 1990 examination, it does not appear that the veteran's low back was examined as the examination request did not include the low back and the report contains no findings or diagnosis relating to the lumbosacral spine. The VA has a duty to assist a claimant in the development of facts pertinent to his or her claim under 38 C.F.R. § 3.103(a) (1993). The U.S. Court of Veterans Appeals (Court) has held that fulfillment of the VA's duty to assist the veteran includes providing him with a thorough and contemporaneous medical examination. Littke v. Derwinski, 1 Vet.App. 90, 92 (1990). The RO should ensure that the veteran is afforded such an examination. Fulfillment of the duty to assist the appellant includes the procurement and consideration of any relevant VA or other medical records. Ferraro v. Derwinski, 1 Vet.App. 326 (1991). Information contained in the record reflects that the veteran was involved in two motor vehicle accidents, one which occurred while on active duty for training in June 1984 and one which apparently occurred while he was not on active duty in September 1986. While the record contains some private medical records relating to treatment of a cervical spine injury following the second accident, it appears that the veteran also received treatment for a neck and lower back injury from Robert E. Holladay, M.D., an orthopedic surgeon associated with the Olive Orthopedic Clinic in Shreveport, Louisiana following the second accident. The record on appeal also contains several letters from Marco A. Ramos, M.D., addressed to an attorney, and some actual clinical records relating to his treatment of the veteran's cervical spine at Willis-Knighton Medical Center, one of which make reference to the veteran's treatment by Dr. Holladay. The RO should ensure that all private and VA clinical records relating to treatment for a low back disability, including any treatment rendered by Drs. Holladay and Ramos, are of record. In view of the foregoing, and in order to fully and fairly adjudicate the veteran's claim, the case is REMANDED to the RO for the following action: 1. The RO should request clarification from the veteran in writing as to whether he is withdrawing his appeal with respect to the issues of service connection for postoperative cervical fusion, residuals of a left arm injury, and residuals of a left leg injury. 2. The veteran should identify all sources of medical treatment received for a low back disability, and furnish signed authorizations for release to the VA of private medical records in connection with each non-VA medical source he identifies. Copies of the medical records from all sources he identifies (not already in the claims folder) should then be requested, to include the clinical records relating to treatment for a low back disability from Robert E. Holladay, M.D., associated with the Olive Orthopedic Clinic in Shreveport, Louisiana, and Marco A. Ramos, M.D. All records obtained should be added to the claims folder. 3. The veteran should be afforded a VA examination in orthopedics to determine the nature and extent of any residuals of a low back injury. The scope of the examination should be broad enough to cover all residual conditions which are suggested by the veteran's complaints, symptoms, or findings at the time of examination. All pertinent complaints or symptoms having a medical cause should be covered by a definite diagnosis. The examination should be conducted in accordance with the VA Physician's Guide for Disability Evaluation Examinations. All indicated diagnostic tests and procedures should be accomplished, including x-rays. The report should summarize all significant positive findings. The claims folder should be made available to the examiner prior to the examination. 4. Thereafter, the RO should readjudicate the veteran's claim. If the determination(s) remain adverse to the veteran, he should be provided a supplemental statement of the case which includes a summary of additional evidence and the reasons for the decision with respect to each pertinent period of service, if indicated. The veteran and his representative should be afforded the applicable time to respond. The case should then be returned to the Board for further appellate review. The purpose of this REMAND is to obtain additional evidence and ensure that the veteran is afforded all due process of law. The Board intimates no opinion, either factual or legal, as to the ultimate conclusion warranted in this case. CHARLES E. HOGEBOOM 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).