BVA9500344 DOCKET NO. 93-07 621 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to an increased rating for chronic lumbosacral strain with compression deformity, spondylolysis at L5 and spondylolisthesis, currently rated as 20 percent disabling. REPRESENTATION Appellant represented by: Mandel I. Allweil, Esq. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Constance C. Hickey, Associate Counsel INTRODUCTION The veteran had active service from June 1979 to June 1982. This appeal arises to the Board of Veterans' Appeals (Board) from the July 1990 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), in Detroit, Michigan, which denied an increased evaluation for the veteran's service connected back disability currently evaluated as 20 percent disabling. The Board finds that remarks made by the veteran at his personal hearing reasonably raise the issue of entitlement to a total disability rating on the basis of individual unemployability. REMAND The Board notes that the RO's April 1983 rating decision makes reference to the veteran's service medical records which were apparently of record at that time, but are not currently contained in the claims folder. In addition, although the veteran's hearing testimony indicates that he received outpatient treatment at the Allen Park, Michigan, VA Medical Center, the veteran's claims folder contains no records of such treatment. Moreover, a deposition submitted by the veteran's personal physician indicates that he examined the veteran in December 1991, but the record of that examination also is not included in the veteran's claims folder. The clinical record reflects that comments by VA physicians are at variance with those made by a private physician, particularly with reference to the degree of effort expended by the veteran in undertaking certain motions on examination. The Board believes that an additional thorough evaluation of the veteran's back disability would be helpful in resolving the issue. Also, as indicated above, on Remand, the RO should adjudicate the issue concerning a total disability rating. Accordingly, this case is remanded to the RO for the following actions. The RO is reminded that all contacts with the veteran are to be made through his attorney. 1. The RO should attempt to locate the veteran's service medical records in order to associate them with his claims folder. 2. After the appropriate releases have been obtained, the RO should contact the veteran's personal physician, Dr. Timothy D. Webber, D.O., at 310 North Michigan Avenue, Saginaw, Michigan 48602, and request that he provide a copy of all of his treatment records of the veteran, including the report of his December 1991 examination. 3. The RO should contact the veteran and ask him to provide the names and addresses of any medical care providers, VA or private, who have evaluated or treated him for symptoms of back disorder since his separation from service, and the approximate dates of such evaluation or treatment. After the necessary releases have been obtained, the RO should request copies of any previously unobtained clinical records from those medical care providers identified by the veteran, so that the records can be associated with the veteran's claims folder. Particular inquiry should be made of the Allen Park, Michigan, VA Medical Center. 4. To obtain an assessment of his day-to- day functioning and employment history, the veteran should be afforded a social and industrial survey by a social worker, in accordance with the provisions of Section 1.14 of VA's Physician's Guide for Disability Evaluation Examinations. Prior to any direct contact with the veteran, the examiner should review the veteran's claims folder. 5. The RO should then arrange for examination by an orthopedic specialist who has not previously treated or examined the veteran to assess the current status of his back disability in accordance with VA's Physician's Guide for Disability Evaluation Examinations. All appropriate studies and tests should be performed. The veteran's claims folder should be available to the examiner for review prior to the examination. The examiner's report should specifically comment on range of motion, and the relationship between range of motion and muscle spasm, if any, and the effect of pain on motion. The examiner should also offer an opinion as to the degree of effort expended by the veteran in attempting the various motions tested, and also as to the effects, if any, of pain on the veteran's ability to accomplish the various tests. The examiner should provide supporting rationale for his or her opinion. 6. Following completion of all requested development, the RO should again review the veteran's claim for an increased rating for lumbosacral strain with compression deformity, spondylolysis at L5 and spondylolisthesis, in the light of all evidence of record. If action taken remains adverse to the veteran, the RO should provide the veteran and his attorney a supplemental statement of the case, containing a recitation of all relevant evidence and a citation to the relevant law and regulations and pertinent diagnostic codes, and a statement of the reasons for action taken. A reasonable period of time should be provided for response. 7. The RO should also adjudicate the issue of entitlement to a total disability rating on the basis of individual unemployability. If action taken is adverse to the veteran and he files a timely notice of disagreement, the RO should prepare a statement of the case on this issue. If the veteran completes an appeal as to this issue, it also should be certified to the Board for appellate review. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. By this action the Board intimates no opinion, legal or factual, as to any ultimate determination in this case. No action by the veteran is required until he receives further notice. N. R. ROBIN 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. (CONTINUED ON NEXT PAGE) 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).