BVA9508131 DOCKET NO. 93-17 050 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to an increased evaluation for lumbosacral spine residuals with right sciatica, currently rated as 40 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. W. Loeb, Counsel INTRODUCTION The veteran served on active duty from June 1957 to October 1959. This case came before the Board of Veterans' Appeals (Board) on appeal from a December 1991 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. An August 1991 rating decision proposed to reduce the veteran's 40 percent evaluation for his service-connected lumbosacral spine residuals with sciatica to 20 percent under the provisions of 38 C.F.R. § 3.105(e) (1994). A December 1991 rating action reduced the above noted 40 percent evaluation to 20 percent, effective March 1, 1992. The veteran testified at a personal hearing at the RO in February 1993, and a hearing officer's decision later in February 1993 concluded that the veteran's back disability more nearly approximated the criteria for a 40 percent evaluation. A March 1993 rating action continued the 40 percent evaluation for lumbosacral spine residuals with sciatica from September 1989. The veteran subsequently contended that his back disability warranted an evaluation higher than 40 percent. The veteran contended in a statement received by the VA in July 1994 that he was unemployable due to his service-connected back disability. Since this issue has not been developed for appellate review, it is referred to the RO for appropriate action. REMAND The most recent VA examination report on file was in November 1991. However, the veteran underwent surgery on his low back in September 1994 at New England Baptist Hospital. The Board notes that the only clinical evidence of the surgery on file is a September 1994 Operative Report. The Board also notes that it was essentially contended on behalf of the veteran in March 1994 that the June 1989 rating decision was clearly and unmistakably erroneous in reducing the veteran's 60 percent evaluation for his back disability to 40 percent. It was contended on behalf of the veteran in September 1994 that a temporary total disability rating is warranted, under 38 C.F.R. §§ 4.29, 4.30 (1994), for his hospitalization and treatment for his back disability at New England Baptist Hospital in September 1994. Since the issues of entitlement to a temporary total rating and whether the rating action of June 1989 was clearly and unmistakable erroneous are inextricably intertwined with the certified issue of entitlement to an increased evaluation for lumbosacral spine residuals with sciatica, they must be adjudicated prior to the Board's consideration of the certified issue. Harris v. Derwinski, 1 Vet.App. 180 (1991). Based on the above, the Board finds that additional development is required prior to final disposition of this case. Therefore, this case is being REMANDED to the RO for the following actions: 1. The veteran should be permitted to submit any additional evidence that is pertinent to the certified issue on appeal. He should also be requested to provide the complete names, addresses, and dates of treatment of any physicians or facilities, including the VA, that have treated him for his service-connected lumbosacral spine residuals with sciatica since November 1991, which is the date of the most recent VA examination report on file. Any medical provider identified should be asked by the RO for copies of the veteran's clinical records not currently on file. Any records obtained should be associated with the claims folder. The veteran should be asked to sign any necessary consent forms for release of his private medical records. 2. The RO should obtain, and associate with the claims file, copies of the veteran's September 1994 hospitalization at New England Baptist Hospital, 125 Park Hill Avenue, Boston, Massachusetts 02120. 3. The veteran should be given special orthopedic and neurological examinations, in accordance with the VA Physician's Guide for Disability Evaluation Examinations, to determine the current nature and severity of his service-connected lumbosacral spine residuals with sciatica. The examiner should obtain a recent employment history from the veteran, including notation of any time lost from employment due to his low back disability. All necessary tests and studies, including x-rays studies, should be conducted and all findings should be reported in detail. The orthopedic examiner should set forth detailed findings regarding limitation of motion and any other functional loss caused by the veteran's service-connected low back disability, as well as functional loss due to pain or weakness, and the neurological examiner should note any neurological symptomatology. The claims folder must be made available to the examiner for review prior to each examination. 4. The RO should then readjudicate the issue on appeal, to include consideration of the provisions of 38 U.S.C.A. § 5107(b) (West 1991), 38 C.F.R. §§ 3.321(b)(1) and 4.7 (1994). The RO should also adjudicate the additional intertwined issues of entitlement to a temporary total rating due to hospitalization and treatment of a low back disability in September 1994 and whether the rating decision of June 1989 was clearly and unmistakably erroneous in reducing the veteran's 60 percent evaluation for his lumbosacral spine residuals with sciatica to 40 percent. With respect to the additional intertwined issues, if they are denied and a timely notice of disagreement is filed, these issues should be addressed in a supplemental statement of the case. When the above actions have been completed, unless the benefits sought are granted to the satisfaction of the veteran, the veteran and his representative should be provided with a supplemental statement of the case on all issues in appellate status and given the applicable time period to respond. The case should then be returned to the Board, if otherwise in order. The veteran need take no action until notified. EUGENE A. O'NEILL 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) (1994).