Citation Nr: 0001527 Decision Date: 01/19/00 Archive Date: 01/28/00 DOCKET NO. 94-41 218 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts THE ISSUE Entitlement to service connection for spinal stenosis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD R. T. Jones, Counsel INTRODUCTION The veteran served on active duty from June 1943 to December 1945. This case came to the Board of Veterans' Appeals (Board) from an April 1993 decision of the RO that denied service connection for spinal stenosis on both a direct and secondary basis. In a February 1998 decision, the Board denied the claim. The veteran then appealed to the U.S. Court of Appeals for Veterans Claims (Court). In a May 1999 joint motion to the Court, the parties (the veteran and the VA Secretary) requested that the February 1998 Board decision be vacated and the matter remanded; by a May 1999 order, the Court granted the joint motion. The case was subsequently returned to the Board, and in November 1999 the veteran's representative submitted additional written argument. REMAND The veteran served on active duty from 1943 to 1945, and his established service-connected disabilities are residuals of a gunshot wound (GSW) of the right thigh and buttock (rated 0 percent), residuals of a GSW of the left scapula area (rated 10 percent), and malaria (rated 0 percent). There is no medical evidence of a back disorder until the 1960s, and in the 1990s the veteran was diagnosed as having spinal stenosis and underwent low back operations. He primarily argues that secondary service connection should be established for spinal stenosis, on the theory that his service-connected residuals of a GSW of the right thigh and buttock produced a gait disturbance which caused or aggravated the spinal stenosis. 38 C.F.R. § 3.310 (1999); Allen v. Brown. 7 Vet.App. 439 (1995). In view of the record, and the May 1999 joint motion and Court order, it is the judgment of the Board that further development of the evidence is warranted, including further efforts to obtain post-service medical records and providing the veteran with a more comprehensive VA examination. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. §§ 3.103, 3.159 (1999); Murincsak v. Derwinski, 2 Vet. App. 363 (1992); Green v. Derwinski, 1 Vet. App. 121 (1991). Accordingly, the case is remanded for the following actions: 1. The RO should ask the veteran to identify (names, addresses, dates) all medical providers who examined or treated him since service for low back problems and for his service-connected residuals of a GSW of the right thigh and buttock. This includes, but is not limited to, all medical providers who performed multiple low back operations in the 1990s, as well as Dr. Vincent P. Birbiglia (who has provided opinions on secondary service connection for spinal stenosis). The RO should directly contact all identified medical providers and obtain complete copies of the related medical records, which are not already on file, including records of examination and patient histories at the time of treatment. 38 C.F.R. § 3.159. 2. After all records are added to the claims folder, the veteran should undergo a VA orthopedic examination by a doctor who has not previously examined him, for the purpose of determining the etiology of spinal stenosis, including any relationship with the service-connected GSW of the right thigh and buttock. The claims folder must be provided to and reviewed by the doctor, and the examination report should indicate that such has been accomplished. The examination should include the following: a. The doctor should indicate whether the veteran currently has a gait disturbance and, if he does, whether it is caused by the service- connected residuals of a GSW of the right thigh and buttock. The doctor should identify all historical records showing a gait disturbance, and the doctor should indicate whether such gait disturbance was caused by the service-connected residuals of a GSW of the right thigh and buttock. b. From the historical record, the doctor should identify the first evidence of back problems in general, and spinal stenosis in particular. c. Based on examination findings, historical evidence, and medical principles, the doctor should provide a medical opinion, with full rationale, as to the date of onset and etiology of the veteran's spinal stenosis. The doctor should specifically address whether the veteran's service-connected residuals of a GSW of the right thigh and buttock directly caused him to develop spinal stenosis, or whether the service-connected residuals of a GSW of the right thigh and buttock resulted in aggravation (an additional degree of disability) of spinal stenosis. If the doctor finds the service- connected residuals of a GSW of the right thigh and buttock aggravated the spinal stenosis, the doctor should clearly identify the increment of spinal stenosis disability which is the result of such aggravation (i.e., the doctor should describe the pre-aggravation and post-aggravation levels of the spinal stenosis, with the difference between the two levels being the additional disability resulting from the aggravation). 3. The RO should assure that all development has been accomplished, and if the above VA examination is inadequate it must be returned to the doctor for completion. 38 C.F.R. § 4.2. Thereafter, the RO should review the claim for service connection for spinal stenosis. If the claim is denied, the veteran and his representative should be issued a supplemental statement of the case, and given an opportunity to respond, before the case is returned to the Board. On remand, the veteran may submit additional evidence and argument on the matter that the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). L. W. TOBIN Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. 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) (1998).