BVA9503805 DOCKET NO. 93-08 425 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office (RO) in Seattle, Washington THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim (previously denied by the RO in February 1981) for service connection for degenerative disc disease of the lumbar spine. 2. Whether the February 1981 RO decision, which denied service connection for degenerative disc disease of the lumbar spine, was clearly and unmistakably erroneous. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran and his wife ATTORNEY FOR THE BOARD Bernard T. DoMinh, Associate Counsel INTRODUCTION The veteran had active service from September 1962 to April 1967, and from July 1967 to January 1972. This matter comes to the Board of Veterans' Appeals (Board) on appeal from February 1992 and later rating decisions by the Seattle, Washington, Regional Office (RO) of the Department of Veterans Affairs (VA). The RO held that new and material evidence had not been submitted to reopen a claim (previously denied in an unappealed February 1981 RO decision) for service connection for degenerative disc disease of the lumbar spine. The RO also held that the February 1981 decision which denied service connection was not clearly and unmistakable erroneous. REMAND The file indicates that there is a further VA duty to assist the veteran in developing evidence pertinent to his application to reopen the previously denied claim for service connection for degenerative disc disease of the lumbar spine. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. §§ 3.103(a), 3.159 (1994); Ivey v. Derwinski, 2 Vet.App 320 (1992). The claims folder only contains service medical records from the veteran's second period of service. An effort should be made to obtain service medical records from the first period of service, particularly since the veteran alleges that degenerative disc disease started with an injury during his first period of service. The file also refers to a number of post-service records which may be relevant to the case, and an attempt should also be made to secure those records. Murphy v. Derwinski, 1 Vet.App. 78 (1990). In view of the foregoing, the case is REMANDED for the following action: 1. The RO should obtain, from the National Personnel Records Center, the service medical records from the veteran's first period of active duty (September 1962 to April 1967). 2. The RO should instruct the veteran and his representative to provide a detailed list (names, addresses, dates) of all VA or non-VA medical providers (doctors, hospitals, clinics, etc.) who have provided examination or treatment to the veteran for a back disorder since his January 1972 discharge from service. The RO should itself contact the medical providers and obtain copies of the records, in accordance with 38 C.F.R. § 3.159. The records to be obtained by the RO include, but are not limited to, the following: a. Outpatient records from 1972 from St. Joseph's Hospital in Tacoma, purportedly involving a medical work- up for back problems (such treatment was referenced in a May 1974 report of VA psychiatric examination). b. Records of VA outpatient treatment in Seattle in 1973, purportedly involving back X-rays and treatment (such was referenced in a June 1974 report of VA orthopedic examination). c. Complete verbatim photocopies of all clinical treatment records (including initial physical examination and patient history) dated in and after September 1976, from Frederick W. Bomanti, III, D.C. (an August 1977 letter from this chiropractor notes treatment of the veteran, although the actual treatment records are not on file). d. Complete verbatim photocopies of all clinical treatment records (including initial physical examination and patient history) dated in and after November 1977, from Robert M. Chambers, M.D. (various letters, but few clinical records, from this doctor, who performed back surgery on the veteran, are currently on file). e. Records of hospital admissions involving back surgery in December 1977 (apparently at St. Joseph's Hospital) and another back operation in January 1981 (apparently at Lakewood General Hospital in Tacoma). Records to be obtained include the initial hospital physical examinations and patient histories, and the final admission summaries. 3. The RO should also ask the veteran to indicate whether he has ever filed a worker's compensation claim with regard to a back condition (current records mention industrial injuries, and a May 1977 VA orthopedic examination report refers to three state claims then pending related to the back). The veteran should clearly identify each such claim (giving the name of employer, dates of injuries and claims, and location of the office where he filed the claims). The RO should contact the state office of worker's compensation, and should obtain copies of all records related to each claim. Thereafter, the RO should review the issues on appeal. If the requested benefits are denied, the veteran and his representative should be issued a supplemental statement of the case and given an opportunity to respond. Then the case should be returned to the Board. L. W. TOBIN 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 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) (1994).