BVA9508100 DOCKET NO. 93-18 648 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to an increased evaluation for residuals of a fracture of the thoracic spine at T11-12, with rupture of the spinal ligament, currently rated at 10 percent. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. M. Flatley, Counsel REMAND The veteran had active service from June 1977 to July 1979. This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 1993 rating decision of the Muskogee, Oklahoma, Department of Veterans Affairs (VA) regional office (RO). Review of the record indicates that the veteran has submitted a well-grounded claim. 38 U.S.C.A. § 5107(a) (West 1991). The VA therefore has a duty to assist the veteran in the development of facts pertinent to his claim. 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet.App. 78, 81-82 (1990). In this regard, the Board notes that in his Notice of Disagreement, the veteran alleged that all pertinent records from the VA facility at which he was receiving treatment were not obtained. There is no indication that such records were sought by the RO. Evidence was received subsequently, however, including that submitted by the veteran consisting of VA outpatient records dated through January 1992 and a VA x-ray report dated in December 1992; the evidence was accompanied by a report from a private physician dated in October 1993. In his substantive appeal, the veteran stated that a complete report was available from his private physician. It is unclear, therefore, whether clinical data are available in addition to the October 1993 report currently of record. Upon review of the record, it is noted that the veteran's most recent VA examination, conducted in December 1992, reflects no evidence of neurologic impairment associated with his residuals of a fracture at T11-12. The remaining evidence, however, including that dated subsequent to the veteran's 1992 VA examination, reflects that neurologic symptomatology may be present. Overall, the Board is of the opinion that additional clinical data may prove helpful in the evaluation of the veteran's claim. In order to fully assist the veteran in the development of his case, therefore, and extend to the veteran every equitable consideration, additional development is warranted. As such, this case is REMANDED for the following: 1. After any necessary information and authorization are obtained from the veteran, records of any post-January 1992 VA treatment, or recent private treatment, inpatient or outpatient, associated with the veteran's residuals of a fracture at T11-12, should be obtained by the RO and incorporated into the claims folder. 2. The RO should schedule special orthopedic and neurologic examinations to determine the nature and severity of the veteran's service-connected residuals of a fracture at T11-12, with rupture of the spinal ligament. The examinations should be conducted in accordance with the pertinent provisions of the VA's Physician's Guide for Disability Evaluation Examinations. All indicated studies should be conducted. The examination reports should include a full description of the veteran's symptoms, clinical findings, and associated functional impairment. X-rays of the thoracic spine should be accomplished, and the examiner should comment as to whether demonstrable vertebral deformity exists. All findings should be recorded in detail, including pertinent range of motion of the veteran's spine, recorded in degrees. Comprehensive reports, which represent consideration of the aforementioned factors, as well as the history of the veteran's disability, should be provided. The veteran's claims folder should be provided to the examiners for review prior to the examinations. 3. The RO should then review the veteran's claim in light of all of the pertinent evidence of record. All pertinent law, regulations, and United States Court of Veterans Appeals (Court) decisions should be considered, including Schafrath v. Derwinski, 1 Vet.App. 589 (1991). If the veteran's claim remains in a denied status, he and his representative should be provided with a supplemental statement of the case, which includes all pertinent law and regulations and a full discussion of action taken on the veteran's claim, consistent with the Court's instruction in Gilbert v. Derwinski, 1 Vet.App. 49 (1990). The applicable response time should be allowed. The case should then be returned to the Board, if in order, after compliance with customary appellate procedures. No action is required of the veteran until he is so informed. The Board intimates no opinion as to the ultimate decision warranted in this case, pending completion of the requested development. THOMAS J. DANNAHER 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. 133-446, § 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).