92 Decision Citation: BVA 92-00066 Y92 BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 DOCKET NO. 90-54 242 ) DATE ) (RECONSIDERATION) ) ) THE ISSUE Entitlement to an increased rating for lumbosacral strain, currently evaluated as 20 percent disabling. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Nancy Phillips, Counsel INTRODUCTION This matter came before the Board on appeal from a rating decision of April 1990 from the Houston, Texas, Regional Office (hereinafter RO). The appellant had active service from January 1941 to November 1945. The notice of disagreement was received on June 1, 1990. The statement of the case was issued on June 21, 1990. The substantive appeal was received on August 27, 1990. A hearing was held at the RO on October 19, 1990. The hearing officer issued a decision on November 6, 1990. The case was received at the Board of Veterans' Appeals on December 28, 1990, and was docketed on January 14, 1991. The Board decided this case on May 7, 1991. Subsequently, on June 26, 1991, a Motion for Reconsideration of that decision was filed with the Board. Reconsideration of the Board's decision has been ordered by the authority granted to the Chairman in 38 U.S.C. 7103 (1989)(formerly 38 U.S.C. 4003, recodified in 1991), and the case is now before an expanded Reconsideration Section of the Board. This decision by the Reconsideration Section replaces the decision of May 7, 1991, and is the final decision of the Board. REMAND The Department of Veterans Affairs (VA) internal guidelines refer to the VA Physician's Guide for Disability Evaluation Examinations (hereinafter, Physician's Guide) for recommended examination procedures. M21-1 Adjudication Procedure, 5503 (March 29, 1989). In this case, the representative has pointed out several areas in which the VA orthopedic examination of March 1990 failed to conform to the requirements set forth in M21-1. Specifically, except for the degree of lateral flexion of the back, the examiner failed to record limitation of back motion in numbers of degrees as required by the Physician's Guide, supra, at 2.17. In this regard, the Court of Veterans Appeals has found a VA examination to be inadequate where the examiner failed to indicate whether a veteran experienced any pain during movement and "(m)ost significantly, the examiner failed 'to record the excursions of movement, in numbers of degrees....'" Littke v. Derwinski, U.S. Vet. App. No. 89-69, slip op. at 2 (December 6, 1990), a copy of which is attached. In addition, the representative has noted that the examiner failed to obtain an industrial history from the appellant so that it may be considered in evaluating the extent of industrial impairment caused by the back disability. See Physician's Guide, supra, at 1.13. Finally, the Board's attention has been directed to the fact that the RO did not explicitly consider the regulation pertaining to the effect of the change of diagnosis in evaluating the appellant's claim. 38 C.F.R. 4.13 (1991). VA has a duty to assist the appellant in the development of facts pertinent to his claim. 38 U.S.C. 5107(a) (1989)(formerly 38 U.S.C. 3007(a), recodified in 1991); 38 C.F.R. 3.103(a) (1991). The Court of Veterans Appeals has held that this duty includes the performance of an adequate VA examination in accordance with the Physician's Guide. Littke, slip op. at 2 and 4. Accordingly, the case is REMANDED for the following action: 1. All treatment records from the VA Outpatient Clinic, Corpus Christi, Texas, should be obtained and associated with the claims folder. 2. The appellant should be afforded a VA orthopedic examination to be conducted in accordance with Chapters 1 and 2 of the Physician's Guide to determine the severity of the low back disability. The examination should include an industrial history covering the period since the appellant was last examined in 1978. As to the examination itself, all excursions of back motion are to be specifically recorded in numbers of degrees. Any portions of the arcs of motion which are painful should be so designated. The use of a goniometer is recommended. The claims folder should be made available to the examiner for review prior to the examination. Any indicated diagnostic tests should be performed. The examiner is requested to render an opinion as to the overall degree of disability caused by the back impairment. 3. Following completion of these actions, the RO should review the evidence and determine whether the appellant's claim can be granted. The RO is specifically requested to consider the provisions of 38 C.F.R. 4.13 (1991), the regulation pertaining to the effective change of diagnosis, in making this determination. If the benefit sought is not granted, the appellant and his representative should be provided with an appropriate supplemental statement of the case, and the case should be returned to the Board for further appellate consideration. BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 M. CHEEK H. STERLING, M.D. HOLLY E. MOEHLMANN J. J. SCHULE J. IMBURG, M.D. C. J. STUREK (CONTINUED ON NEXT PAGE) Under 38 U.S.C. 7252 (formerly 38 U.S.C. 4052), 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.