BVA9502420 DOCKET NO. 89-47 800 ) DATE ) RECONSIDERATION ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to an evaluation in excess of 20 percent for lumbosacral strain with possible herniated nucleus pulposus prior to August 21, 1990. 2. Entitlement to an evaluation in excess of 40 percent for lumbosacral strain with possible herniated nucleus pulposus from August 21, 1990. 3. Entitlement to service connection for an organic disorder of the lower extremities. REPRESENTATION Appellant represented by: Russell J. Augsburger, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Hudson, Associate Counsel INTRODUCTION The veteran had active service from April 1951 to June 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a regional office (RO) rating decision of October 1988, which denied an evaluation in excess of 10 percent for lumbosacral strain, and denied service connection for a claimed disability of the legs. The Board upheld the RO's determination in a decision entered in June 1990. A motion for reconsideration was filed on the veteran's behalf, and, in December 1991, reconsideration of the decision was ordered by the authority granted to the Chairman in 38 U.S.C.A. § 7103 (West 1991). In July 1992, an expanded reconsideration panel, in a decision that replaced the Board decision of June 1990, remanded the case to the RO for additional action prior to a final determination. In the course of the requested development, the RO, by rating action of April 1993, increased the rating for lumbosacral strain to 20 percent from June 1, 1988, and to 40 percent from August 21, 1990. The RO considered this a complete grant of benefits sought, and returned the case to the Board for consideration of the remaining service connection issue. REMAND As indicated above, by rating action of April 1993, the RO increased the rating for lumbosacral strain to 20 percent from June 1988, and to 40 percent from August 1990. The RO also considered this to be a complete grant of benefits sought, and therefore no supplemental statement of the case was furnished on the issue. However, the United States Court of Veterans Appeals (Court) has held that a rating decision issued subsequent to a notice of disagreement which grants less than the maximum available rating does not "abrogate the pending appeal." AB v. Brown, 6 Vet.App. 35, 38 (1993). Consequently, the matter of an increased evaluation for lumbosacral strain remains in appellate status, and must be addressed in a supplemental statement of the case which discusses both aspects of the claim, i.e., the evaluation in excess of 20 percent prior to August 21, 1990, and in excess of 40 percent from that date. Further, the Board obtained additional evidence from the Audie Murphy VA Medical Center, at the request of the veteran's attorney, which has not been reviewed by the RO. Although the veteran and his representative have been furnished copies of these records, RO consideration was not waived; therefore, the RO must review the records and prepare a supplemental statement of the case. 38 C.F.R. § 20.1304(c) (1994). Finally, a comprehensive medical opinion clarifying the nature, etiology and onset of the veteran's claimed disorder of the lower extremities is required for the Board to reach a determination on the issue of service connection for any such disorder. Accordingly, this case is REMANDED for the following: 1. A panel of three physicians comprised of a neurologist, an orthopedist, and a psychiatrist should be requested to review the claims folder and address the following questions: * Has meralgia paresthetica of the lower extremities been reasonably established as present by the clinical examinations conducted to date? * Is there any other separate organic disorder of the lower extremities that is distinct from any pathology shown in the lumbar spine? * If a clinically identifiable disorder of the lower extremities is present, when was its onset; particularly, was its onset during service? * What is the etiology of any identified organic disorder of the lower extremities; specifically, is any such disorder etiologically related to a service- connected disability, particularly to a service-connected disorder of the spine or psychiatric disorder? 2. The RO should review the veteran's appeal, including the two issues involving an increased evaluation for lumbosacral strain, discussed above and set forth on the title page of this decision, as well as the issue of service connection for an organic disorder of the lower extremities, in light of all evidence of record, including that obtained subsequent to the supplemental statement of the case. If the decision as to any issue remains adverse to the veteran, or is less than a complete grant of benefits available, he and his representative should be furnished a supplemental statement of the case which discusses all pertinent evidence since the last statement of the case or supplemental statement of the case which addressed the issue. After affording the veteran and his representative an opportunity to respond, the case should be returned to the Board for appellate consideration, if otherwise in order. R. D. PHILIPP C. P. RUSSELL BETTINA S. CALLAWAY E. KRENZER EUGENE A. O'NEILL GORDON H. SHUFELT 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).