Citation Nr: 0005434 Decision Date: 02/29/00 Archive Date: 03/07/00 DOCKET NO. 98-13 307 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUE Entitlement to an increased evaluation for residuals of a compression fracture of T-12, currently evaluated as 20 percent disabling. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Wm. Kenan Torrans, Associate Counsel INTRODUCTION The veteran served on active duty from December 1962 to December 1965. This matter arises from a September 1997 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston Salem, North Carolina, which denied the benefit sought. The veteran filed a timely appeal, and the case has been referred to the Board of Veterans' Appeals (Board) for resolution. The Board notes that a rating decision in December 1998 denied entitlement to service connection for a cervical spine disorder. The veteran filed a notice of disagreement with that determination in February 1999. A Statement of the Case was furnished by the RO in March 1999. A timely substantive appeal by the veteran on that issue is not of record, and, consequently, the issue of entitlement to service connection for a cervical spine disorder is not before the Board at this time. REMAND When a veteran alleges that a service connected disability has increased in severity, a claim for an increased disability evaluation is well grounded, Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992), and the Board therefore finds that the veteran's claim is well grounded. When a well grounded claim has been presented, VA has a duty to assist the veteran in the development of facts pertinent to his claim. 38 U.S.C.A. § 5107(a) (West 1991). Where there is a well grounded claim for disability compensation but medical evidence accompanying the claim is not adequate for rating purposes, a VA examination will be authorized. 38 C.F.R. § 3.326(a) (1999). In the instant case, the record shows that service connection for residuals of a compression fracture at T-12 was granted by a March 1966 rating decision, and that a 20 percent evaluation was assigned. In July 1996, the veteran filed a claim for an increased rating, contending, in substance, that his service-connected back disability had increased in severity, and that the currently assigned 20 percent evaluation no longer reflected the severity of that disability. In support of his claim, the veteran submitted private medical treatment records dating from January 1995 through November 1996, which show that the veteran was treated for back pain after an automobile accident in December 1994. The records do not disclose any major problems with the veteran's T-spine, other than noting that he had an old compression fracture of the T-spine. Most of the veteran's problems at that time were noted to involve the cervical spine and the lumbar spine. VA outpatient clinical treatment records dating from April through September 1999 show that, in August 1998, the veteran was seen for complaints of back pain, and was noted to have spondylitic changes at C3-4 and C6-7 with mild impingement to the cord at C4-5 and C5-6. The treating physician noted that the veteran had sustained an injury during service at T-12 and at C3-5 as a result of a parachuting accident. The Board finds that the medical evidence currently of record is not adequate to rate the veteran's service connected thoracic spine disorder and he has not been afforded a VA examination to evaluate the severity of that disability. Therefore, the Board finds that additional development of the evidence is necessary. The Board points out to the veteran that, when a claimant, without good cause, fails to report for a necessary examination, a claim for an increased evaluation shall be denied. 38 C.F.R. § 3.655 (1999). This case is REMANDED to the RO for the following: 1. The RO should contact the veteran, and, after securing any necessary authorization, obtain and associate with the claims file any medical records pertaining to treatment for his service- connected residuals of a compression fracture at T-12 dated since the last request for such information. 2. The veteran should then be scheduled to undergo an examination by a specialist in orthopedics to determine the extent and severity of his service-connected thoracic spine disability. The examiner is requested to note the degree functional impairment, including functional impairment due to pain, which is determined to be attributable to residuals of a compression fracture of T-12. The examiner should distinguish between impairment due to the thoracic spine fracture and the impairment due to the non-service connected disorders of the cervical spine and lumbosacral spine. The veteran's claims file should be made available to the examiner for review. All indicated studies and tests, including range of motion, should be performed. The examiner is requested to state the rationale for all opinions expressed. The examination report should be typed. 3. Following completion of the foregoing, The RO should readjudicate the issue of entitlement to an evaluation in excess of 20 percent for the veteran's residuals of a compression fracture at T- 12, taking into consideration all appropriate statutes and regulations, including 38 C.F.R. §§ 4.40, 4.45 (1999). If the determination remains adverse to the veteran, he and his representative should be furnished with a supplemental statement of the case and be provided an opportunity to respond before the case is returned to the Board for further consideration, if otherwise in order. The purpose of this REMAND is to obtain clarifying medical information. The Board does not intimate any opinion as to the merits of the veteran's claim, either favorable or unfavorable, at this time. The veteran is free to submit any additional evidence and argument which he desires to have considered in connection with his current appeal. See Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the veteran until he is further notified. JAMES A. FROST Acting Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. 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) (1999).