BVA9504460 DOCKET NO. 92-12 298 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to an increased rating for a back disorder, currently rated as 10 percent disabling. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. R. Olson, Counsel REMAND The veteran's active military service extended from October 1965 to December 1968 and from December 1982 to March 1987. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 1991 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. That rating decision, in part, granted service connection for a back disorder and assigned a 10 percent rating. The nature of the service-connected back disorder is not clear from the record. The initial rating granted service connection for a lumbosacral strain; hypertrophic spurring T11, T12. This is somewhat confusing since the 11th and 12th thoracic vertebra are just above the lumbar area of the spine, while the lumbosacral area is the lower portion of the lumbar spine and sacrum. The nature and extent of the service connection disability needs to be clarified. The veteran has argued that his back disorder was one of the disabilities which led a Social Security Administration Administrative Law Judge (ALJ) to find him disabled. The opinion of the ALJ refers to a herniated disc at L3-L4 noted in VA medical reports of February 1990. The February 1990 VA medical records are not in the claims folder. The complete VA medical records should be obtained and associated with the claims folder. See Ferraro v. Derwinski, 1 Vet.App. 326 (1991). Also, all documents considered by the ALJ should be obtained and reviewed. See Martin v. Brown, 4 Vet.App. 136 (1993). Moreover, it is necessary to determine what is and is not part of the service- connected disability in order to properly rate it. The veteran's assertion essentially presents a claim for service connection for the L3-L4 herniated disc which is inextricably intertwined with the rating issue and which must be resolved before VA can properly rate the service-connected back disorder. See Harris v. Derwinski, 1 Vet.App. 180 (1991). VA adjudications must be based on medical opinion and such opinions must be obtained where needed. See Colvin v. Derwinski, 1 Vet.App. 171 (1991). The veteran's representative has asked that he be scheduled for another examination. The Board agrees that an examination and opinion by an orthopedic specialist may provide useful information as to the nature and extent of the veteran's back disability. The Board notes that medical records for the last period of active duty were obtained approximately 8 months after service. At that time, it could take a year for all records to be sent to the holding facility. An April 1984 service medical record shows back pain with no history of trauma, while an October 1984 note reflects trauma from landing. It is possible that there are more service medical records which might enlighten the Board as to the nature and residuals of any back trauma. Consequently, the RO should obtain any additional service medical records which may now be available. To ensure that VA has met its duty to assist the claimant in developing the facts pertinent to the claim and to ensure full compliance with due process requirements, the case is REMANDED to the RO for the following development: 1. The RO should obtain from the Social Security Administration the records pertinent to the appellant's claim for Social Security disability benefits as well as the medical records relied upon concerning that claim. 2. The RO should obtain a complete copy of the veteran's VA medical records and associate them with the claims folder. 3. The RO should obtain from the service department, any additional service medical records which may now be available. 4. Following the above, the veteran should be accorded an examination by a VA orthopedist. The report of examination should include a detailed account of all manifestations of joint pathology found to be present. All necessary tests and X-rays should be conducted and the examiner should review the results of any testing prior to completion of the report. Special attention should be given to the presence or absence of pain, any limitation of motion, instability and weakness. A copy of this Remand and the claims folder must be made available to and be reviewed by the examiner prior to the examination. The orthopedist should provide a response to the following questions with a complete rationale for all conclusions reached. A. Were the findings on the April 1980 VA hospitalization manifestations of a chronic back disorder? What diagnosis, if any, is appropriate for these findings? B. If there was a chronic pre-service back disorder, what evidence is there of an increase in severity during service, or of stability during service, or of transitory symptomatology without a chronic increase in the basic level of pathology during service? C. The October 1987 VA examination resulted in a diagnosis of lumbosacral strain. "[W]ith spurring T11 & T12" was written in later after the x-ray studies. With reference to the veteran's complaints, the examination findings, and the x-ray study, what was the proper diagnosis at that time? D. The March 1989 VA examination included an x-ray study and a computerized tomography scan. With reference to the report of the March 1989, lumbar spine x-rays, in the specialist's opinion, what is the probability that the T12 wedging is a normal variant or a residual compression fracture? If it is a compression fracture residual, the examiner should express an opinion as to the date of occurrence. E. The examiner should also express an opinion as to the current manifestations associated with the T11-T12 abnormality. Specifically, the examiner should comment on whether the hypertrophic spurring of these vertebrae reported on VA examination in October 1987 represented a generalized or traumatic arthritic process. F. The March 1989 computerized tomography scan revealed L3-L4 and L4-L5 disc abnormalities. What is the probability that these changes had their onset more than 2 years earlier, during the veteran's active service? G. The examiner should also express an opinion as to the current manifestations associated with the L3-L4 and L4-L5 disc abnormalities. H. The report of the December 1989 VA x-rays mentioned a lumbarization of S1. The examiner should express an opinion as to whether this was congenital or developmental in nature, or due to disease or injury, and if so, the probability that the disease or injury occurred during the veteran's active service, over 2 years and 8 months earlier. I. The examiner should also express an opinion as to the current manifestations associated with the lumbarization of S1. J. The examiner should express an opinion as to the current correct diagnosis for the service-connected back disorder. 5. The RO should review the examination report and determine if it is adequate for rating purposes and in compliance with this Remand. If not, the report should be returned for corrective action. 6. Inasmuch as the issue of entitlement to service connection for L3-L4 and L4-L5 disc abnormalities is deemed to be "inextricably intertwined" with the issue of entitlement to an increased rating for the service- connected back disorder, the RO should take appropriate adjudicative action to specify which back manifestations are part of the service-connected back disability and which, if any, are not. The RO should provide the appellant and representative notice of the determination and the right to appeal. If a timely notice of disagreement is filed, the appellant and representative should be furnished with a statement of the case and given time to respond thereto. Following completion of these actions the RO should consider the claim for an increased rating for the service-connected back disorder. If the decision remains unfavorable, the veteran and representative should be provided with a supplemental statement of the case and afforded a reasonable period of time in which to respond. Thereafter, in accordance with the current appellate procedures, the case should be returned to the Board for completion of appellate review. The Board intimates no opinion as to the ultimate outcome of this case. No action is required of the veteran until further notice is issued. JAN DONSBACH 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) (1993).