BVA9505652 DOCKET NO. 93-10 072 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for an upper back condition. 2. Entitlement to an increased evaluation for the appellant's service-connected post-operative herniated nucleus pulposus of the lumbar region, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD C.A. Skow, Associate Counsel REMAND The appellant served on active duty from September 1960 to September 1990. This matter came before the Board of Veterans' Appeals (the Board) on appeal from an August 1991 rating decision of the Houston, Texas, Department of Veterans Affairs Regional Office (VARO). The appellant contends that his current upper back disorder is related to service; in particular, he argues that he has had chronic muscle spasms and pain in the upper back since 1978 for which he sought regular treatment in service. The appellant also contends that his current service-connected low back disorder, post-operative herniated nucleus pulposus, is sufficiently severe to warrant at least a 40 percent disability evaluation; the appellant has indicated that his service-connected low back disorder is primarily productive of recurrent muscle spasms with only intermittent relief. A review of the record shows that the appellant complained of upper back pain on several separate occasions between September 1978 and March 1980, with some upper back pain and tenderness noted on examination in October 1985. The impression was chronic thoracic myositis with possible thoracic joint dysfunction. The record also reflects that the appellant experienced low back pain throughout service, related to numerous sports injuries, and that he underwent a diskectomy in 1983 and again 1984 at the L4-5. In November 1990 and March 1992, VA examinations were conducted. On VA examination in November 1990, there were no neurological symptoms reported, and no clinical findings with respect to the upper back were discussed. On VA examination in March 1992, clinical findings revealed, with respect to the upper back, the presence of a chronic cervical sprain and upper dorsal spine kyphosis. After carefully reviewing the recent VA examinations, the Board finds that it is unclear whether or not an etiologic relationship exists between the appellant's current upper back pathology as shown on VA examination in March 1992 and either his service-connected low back disorder or the recurrent myositis of the thoracic spine noted in service. In view of the above, the Board finds that a remand decision is in order because the VA has not fully complied with its duty to assist. The duty to assist includes the duty to develop the pertinent facts by conducting a thorough medical examination, Littke v. Derwinski, 1 Vet.App. 90 (1990), and includes providing a medical examination when the medical evidence is inadequate. Green v. Derwinski, 1 Vet.App. 121 (1990). Although it appears that the medical evidence of record is satisfactory for the purpose of determining entitlement to an increased evaluation for the postservice residuals of the lumbar herniated nucleus pulposus, in view of the additional development which necessitates this remand, the undersigned believes that consolidation of all the appellant's claims which are appealed to the Board is preferable to piecemeal adjudication . See Hoyer v. Derwinski, ! Vet.App. 208 (1991). As such the issue of an increased evaluation is referred to VARO, and should be re- evaluated along with the claim to service connection for an upper back disorder, consistent with the remand decision. Accordingly, the case is REMANDED to VARO for the following development: 1. The appellant should be afforded VA orthopedic and neurologic examinations to determine the nature and extent of his current upper back disorder, as well as his service-connected low back disorder, post- operative herniated nucleus pulposus. All appropriate studies should be conducted. The claims folder should be made available to the examiners for review before the examinations. In addition, with respect to the low back disorder, the neurologic examiner should clearly indicate whether or not there is any neurological involvement at the site of the diseased disk(s). 2. After the examiners have reviewed the appellant's service medical records and previous VA examinations, they should opine jointly on whether or not an etiologic relationship exists between any current upper back pathology as may be shown on current VA examination and either his service-connected low back disorder or the recurrent myositis of the thoracic spine noted in service. In addition, the examiners should attempt to reconcile any differences between current clinical findings and those reported on the previous VA examinations. 3. After the development requested above has been completed to the extent possible, VARO should again review the record. If any benefit sought on appeal, for which a notice of disagreement has been filed, remains denied, the appellant and representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise notified. C.P. RUSSELL 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).