BVA9504886 DOCKET NO. 93-14 203 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an increased rating for a disability characterized as chronic lumbosacral strain, degenerative disc disease, currently evaluated as 40 percent disabling. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD B. Anderson, Counsel INTRODUCTION The appellant had verified active duty from January 1951 to June 1968 and from March 1970 to February 1974. The appellant has submitted a notice of disagreement with the denial of a total disability rating for compensation based on individual unemployability. Such issue has not been developed and certified for appellate review. It is referred to the St. Petersburg, Florida, regional office (RO) for appropriate action. REMAND By rating action in January 1991, the RO "extended" service connection of chronic lumbosacral strain to include degenerative disc disease, and increased the disability evaluation to 40 percent. This appeal arises from an August 1992 rating decision of the RO. In that decision, the 40 percent rating was continued. The RO sent the appellant a 90-day letter on June 24, 1993. On September 29. 1993, the Board of Veterans' Appeals (Board) received additional private medical records. The appellant did not waive his right to have this evidence initially reviewed by the RO. The Board recognizes that the new evidence was received after the 90-day period had elapsed. 38 C.F.R. § 20.1304(c) (1994). Nevertheless, the new evidence shows that the appellant underwent lumbosacral fusion in July 1993. Such event is significant for rating purposes. Moreover, in a statement dated in October 1993, a private surgeon opined that the appellant had "approximately" 18 percent permanent partial impairment of the whole person in regard to the low back condition and, due at least in part to an automobile accident in April 1993, additional impairment of 10 percent due the fusion. Even assuming arguendo that the 1993 fusion cannot be dissociated from service-connected disability as the result of a supervening, intervening injury, there remains the unexplained discrepancy of the 18 percent and 10 percent impairment as judged privately versus the 40 percent impairment as judged by the RO. The appellant has not been examined by the Department of Veterans Affairs (VA) for disability evaluation since the automobile accident and surgery in 1993. To ensure that VA has met its duty to assist the claimant in developing the facts pertinent to the claim and to ensure full compliance with due process requirements, the case is REMANDED to the RO for the following development: 1. The appellant should be afforded a VA orthopedic and neurologic examination to determine the current extent of "chronic lumbosacral strain, degenerative disc disease." The claims folder, together with the evidence added to the record after transfer of the case to the Board, should be made available to the examiner for review before the examination. The examiner, to the extent possible, should express an opinion as to the etiology of the spinal fusion in July 1993. In addition, the examiner should comment on the private evaluation of 18 percent low back condition impairment and the 10 percent fusion impairment. 2. Thereafter, the RO should adjudicate the appellant's claim for an increased evaluation of his service-connected back disability, to include consideration of the evidence submitted and obtained after transfer of the case to the Board. If the decision remains adverse to the appellant, he and his representative should be furnished with a statement of the case and given the applicable time to reply. Following completion of the requested action, 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 until so notified. 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 action has been taken in accordance with the Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 303, 108 Stat. 4645, ___ (1994), and 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).