BVA9501596 DOCKET NO. 93-03 515 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUES 1. Entitlement to an increased evaluation for cervical spine disability, currently evaluated as 10 percent disabling. 2. Entitlement to an increased evaluation for low back disability, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD Lori J. Wells-Green, Associate Counsel INTRODUCTION The veteran served on active duty from September 1978 to July 1981. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 1991 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico. REMAND The veteran contends that he is entitled to increased ratings for his service connected cervical spine and low back disabilities, as they have grown more severe. The veteran maintains that he has had severe recurring pain and muscle spasm in his cervical spine that radiates into his lumbar spine and sometimes into his hips and legs. The veteran also contends that RO has not given adequate consideration to his pain and muscle spasms in evaluating his service-connected disabilities. A careful review of the veteran's VA treatment records shows that the veteran has complained frequently of constant pain and muscle spasm. Further, VA records dated in September 1990, October 1990 and February 1991 show that the examiner noted back spasms upon treatment and/or examinations. At the veteran's July 1991 VA examination for compensation purposes, the examiner also noted minimal spasm of the lumbar muscles. The United States Court of Veterans Appeals has held that, under 38 U.S.C.A. § 5107(a) (West 1991), VA's duty to assist a veteran in obtaining and developing available facts and evidence to support a claim includes obtaining an adequate and contemporaneous VA examination which takes into account the records of prior medical treatment. Littke v. Derwinski, 1 Vet.App. 90 (1990). Based on the evidence of record showing instances of muscle spasm in the veteran's back, the Board is of the opinion that he should be afforded a more contemporaneous examination. Further, the Board is of the opinion that the veteran should also be provided a neurology examination in order to fulfill VA's duty to assist him in the development of facts pertinent to his claim. Accordingly, the case is REMANDED to the RO for the following actions: 1. The RO should obtain copies of all treatment records for the veteran from the VA Medical Centers in Farmington and Albuquerque, New Mexico, dated from August 1992 to the present. 2. The RO should also request that the veteran provide the names and addresses of all other health care providers who have treated him in recent years for his service-connected cervical spine and/or low back disabilities. Then, after any necessary authorization is obtained from the veteran, the RO should obtain those treatment records identified by the veteran which have not been previously secured. 3. After associating with the file all records obtained pursuant to the above directives, the RO should arrange for the veteran to undergo VA orthopedic and neurology examinations by board certified specialists, if available. All indicated studies, to include X-rays, should be performed. The examiners should determine the current nature and extent of any cervical and lumbar spine impairment, specifically noting the existence and degree of any painful motion or muscle spasm and the frequency and duration of associated tension headaches. The veteran's claims file should be made available to the examiners prior to the examinations. 4. Thereafter, the RO should readjudicate the veteran's claims for increased ratings for cervical spine and low back disabilities. If the benefits sought on appeal are not granted to the veteran's satisfaction, a supplemental statement of the case containing adequate reasons and bases should be issued and the veteran and his representative provided an opportunity to respond. Thereafter, the case should be returned to the Board for further consideration, if otherwise in order. By this REMAND, the Board intimates no opinion as to any final outcome warranted. No action is required of the veteran until he is notified by the RO. ROBERT E. SULLIVAN 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).