BVA9500162 DOCKET NO. 91-24 378 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to an increased evaluation for low back pain due to residuals of thoracic muscle strain, evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Roger W. Rutherford, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD James A. Frost, Associate Counsel REMAND The veteran served on active duty from January 1967 to August 1974, with subsequent National Guard service, including a period of active duty for training from June 1, 1985, to June 15, 1985. This appeal initially arose from a rating decision in November 1990 by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The Board of Veterans' Appeals (the Board) issued an initial appellate decision on February 13, 1992, which the veteran appealed to the United States Court of Veterans Appeals (the Court) which, upon a joint motion for remand by the Secretary of Veterans Affairs and the veteran/appellant, vacated the Board's decision and remanded the case to the Board for further evidentiary development and readjudication. [citation redacted]. By a decision of September 10, 1993, the Board remanded the case to the RO to, inter alia, clarify whether a grant of service connection for a back disability included or excluded a disorder of the lumbosacral spine. The RO issued a supplemental statement of the case in July 1994 and subsequently returned the case to the Board for further appellate consideration. In August 1990 the veteran asserted a claim of entitlement to service connection for "residuals of a back injury while on active duty on 6 June 85". In the rating action of November 1990 the RO stated the issue as service connection for residuals of a back injury. The evidence portion of the rating decision referred to an injury in June 1965 during active duty for training which caused thoracic muscle strain, with no reference to the lumbar or lumbosacral spine. The rating decision recited findings pertaining to the lower back at a VA examination in October 1990. In the discussion portion of the rating decision the RO merely stated that "The impairment of back injury is shown to be slight". In the conclusion of the rating decision, the RO granted service connection for a disability characterized as "manifestation of low back pain due to injury". A 10 percent disability rating was assigned under Diagnostic Code 5295 of VA's schedule for rating disabilities, which pertains to lumbosacral strain. The RO did not provide reasons and bases for disassociating the pain or symptomatology due to disc pathology from the "manifestation of low back pain" which was service connected. On appeal, the Board, in the decision of February 1992, found that service connection was in effect for residuals of an injury to the thoracic spine, but not for arthritis or disc pathology of the lumbosacral spine. As noted above, the veteran appealed the Board's decision to the Court. In a joint motion for remand, the Secretary of Veterans Affairs and the veteran-appellant stated that, "Inasmuch as the November 1990 rating decision reflects that service connection was granted for impairment involving the lumbosacral spine, rather than the thoracic spine...". Hence, the parties to the litigation before the Court agreed that the November 1990 rating decision granted service connection for an impairment involving the lumbosacral spine beyond merely "low back pain". The Board construes the grant of service connection to include lumbar disc pathology with sciatica. The Court entered its Order of February 10, 1993, granting the joint motion and thus making the statement by the parties that service connection is in effect for a disability of the lumbosacral spine and not for a disability of the thoracic spine "the law of the case". In the remand decision of September 1993 the Board requested that the RO clarify the extent of the back disability for which service connection had been granted, specifically, whether the grant extended to the lumbosacral spine. The Board stated further that "if service connection is not deemed in effect for lumbosacral spine disability, the issue of service connection for same should be initially adjudicated...". In response to the Board's remand, the RO issued a rating decision in July 1994 confirming and continuing a 10 percent rating for low back pain due to residuals of thoracic muscle strain and the RO denied service connection for "degenerative disc disease of the lumbar spine, with left sciatica". Upon the Board's review of the foregoing sequence of events, it is apparent in retrospect that the rating decision of November 1990 inadvertently caused confusion as to the disability for which service connection was being granted. It appears that the RO intended to service connect one thing and actually service connected something else. Keeping in mind that it is now the law of the case that service connection is in effect for a disability of the lumbosacral spine, the question arises as to whether the rating decision of November 1990 involved clear and unmistakable error in that respect. In other words, did the RO in November 1990 intend to grant service connection for a disability of the thoracic spine rather than one of the lumbosacral spine? The Board believes that another remand is regrettably necessary to clear up the confusion. Accordingly, the case is REMANDED to the RO for the following: The RO should determine whether its rating decision of November 1990 involved clear and unmistakable error by granting service connection for impairment of the lumbosacral spine, to include disc pathology, rather than for a disability of the thoracic spine. If the RO decides that no such error was made, the RO should then evaluate the nature and extent of all low back disorders, because of the fact that service connection is in effect for "impairment of the lumbosacral spine", including disc pathology. The RO should then furnish the veteran and his representative with an appropriate Supplemental Statement of the Case and an opportunity to respond thereto and return the case to the Board for further appellate consideration. If, on the other hand, the RO decides that such an error was committed, the RO should take appropriate action in accordance with 38 C.F.R. § 3.105 and adjudicate the veteran's entitlement to service connection for both thoracic and lumbar spine disorders. In that event, the RO should reevaluate the veteran's service connected back disability before returning to the Board his appeal on the issue of entitlement to an increased rating for that disability. The purpose of this REMAND is to permit appropriate adjudicatory action to be taken prior to a final disposition of the appeal. No action is required of the veteran unless he receives further notice. BRUCE KANNEE 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).