BVA9508020 DOCKET NO. 92-18 559 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUE Entitlement to an increased evaluation for a herniated intervertebral disc, currently evaluated as 40 percent disabling. REPRESENTATION Veteran represented by: AMVETS WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J.R.King, Associate Counsel INTRODUCTION The veteran served on active duty from September 1967 to June 1970. This matter is before the Board of Veterans Appeals (Board) on appeal from a May 1991 rating determination of the Department of Veterans Affairs (VA) Regional Office (RO) located in Hartford, Connecticut, which denied the veteran's claim for an increased evaluation for a service-connected low back condition. This matter was before the Board in July 1993, at which time it was remanded for additional factual development. The issue of entitlement to a total disability rating for compensation on the basis of individual unemployability (TDIU) was found to be inextricably intertwined with the issue on appeal and, accordingly, additional development was ordered with respect to that claim. Disability determination records from the Social Security Administration (SSA) were requested, along with the VA vocational and rehabilitation counseling folder. Additionally, VA outpatient treatment records were obtained and VA examinations were performed so that the severity of his service-connected disability could be assessed. The foregoing evidentiary development revealed that he was employed at a furniture factory in 1994, and that the SSA had denied his claim for disability benefits in April 1994. By rating decision in July 1994, the veteran's claim for a TDIU was denied by the RO. REMAND During a September 1993 VA examination, the veteran complained of pain of the upper thigh muscles with constant low back and leg pain. The examination report reflects that the veteran was suffering from lumbosacral strain with recurrent lower back pain, and muscle spasms with limited range of motion. The examiner stated that the prognosis was poor. The report also reflects the examiner's statement that the Board's remand had not been included in the material for the examination. The veteran's representative in this case has argued strongly that this statement raises a question as to whether the examiner had access to the claims folder for review in conjunction with the examination, and also asserted that the RO did not adequately assess the degree of functional loss due to pain experienced by the veteran. A subsequent VA examination of December 1993 reflects that at least 2 pertinent documents were unavailable for review by the examiner in conjunction with the examination. The examiner stated that an April 1992 work-up for chronic pain at the VAMC, West Haven, included an electromyograph (EMG) and a report of a Magnetic Resonance Imaging (MRI) procedure, which were not associated with the materials provided for review. The examiner stated that, as neither the films nor the actual reports of the radiologist were available, it was not clear whether the CT scan findings of June 1993 ( which apparently did not seem to agree with the MRI findings paraphrased in a 1992 examination), represented a change in the veteran's pathology or could be attributable to different techniques of radiological examination or different interpreters. It was stated by the examiner that it would be helpful to have all the films together and review them with a neurologist. Given these facts, the Board is of the opinion that the veteran's above-noted VA neurological examination should include a thorough review of the actual films, reports and records referenced by the examiner in order to reconcile the above noted findings, determine the severity of his service-connected low back disorder and determine the degree of functional impairment he currently experiences due to pain. In view of the foregoing, the record before the Board at this time appears inadequate; thus, a remand is mandatory rather than permissive. See Littke v. Derwinski, 1 Vet.App. 90 (1990). At the time this case was remanded previously by the Board, it was felt that a claim for a TDIU was inextricably intertwined with the claim on appeal. Although it appears from a review of the record that the veteran is employed currently, he has not indicated whether he desires to perfect an appeal and continue this claim. Thus, consideration of this issue is in abeyance pending further developments. To ensure that the VA has met its statutory duty to assist the veteran in developing the facts pertinent to the claim (38 U.S.C.A.§ 5107(a) West 1991)), this case is REMANDED to the RO for the following development: 1. The veteran should be requested to indicate whether he has sought or obtained private orthopedic treatment for his service-connected low back disability, and if so, the names and addresses of any health care providers as well as the approximate dates of treatment should be obtained. If the answer is in the affirmative, after securing the necessary authorizations for release of information, the RO should obtain copies of any such pertinent treatment records for inclusion in the claims folder. 2. The RO should also obtain the actual reports and films of an April 1992 EMG and MRI of the lumbosacral spine, conducted at the West Haven VAMC, as well as the records of a CT scan of the lumbosacral spine performed in June 1993 for inclusion in the claims folder. 3. Then, the veteran should be afforded VA orthopedic and neurologic examinations in order to determine the nature and severity of his herniated intervertebral disc at L4-5. The claims folder must be provided to the examiners for review in conjunction with the examinations. All tests and diagnostic procedures indicated should be performed, to include a current CT scan of the lumbar spine, EMG and MRI, if appropriate. The neurological examiner should be requested to assess the probability that the veteran is suffering from arachnoid inflammation of the nerve roots, and should also reconcile the clinical findings elicited by June 1993 CT scan of the lumbosacral spine with clinical findings of April 1992 found during an EMG and MRI of the lumbosacral spine. The examiners should both be requested to comment on the degree of functional loss the veteran now experiences due to pain. 4. After the development requested above has been completed, the RO should again review the record. If any benefit sought on appeal (for which a notice of disagreement has been filed) remains denied, the veteran and his representative should be provided with a supplemental statement of the case, including a discussion of the applicable laws and regulations, and they should then be provided an opportunity to respond thereto. Thereafter, the case should be returned to the Board, if in order. The purpose of this REMAND is to assist the veteran in the development of his claim, and the undersigned intimates no opinion, either legal or factual, as to the ultimate disposition warranted in this case. J.F. GOUGH 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).