BVA9510088 DOCKET NO. 91-37 953 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a rating in excess of 40 percent for a low back sprain with degenerative changes. 2. Entitlement to an effective date prior to April 19, 1991, for assignment of a 40 percent evaluation for a low back sprain with degenerative changes. 3. Entitlement to a total disability rating based on unemployability due to service-connected disability. 4. Entitlement to special monthly compensation under the provisions of 38 U.S.C.A. § 1114, Subsection (k) (West 1991) based upon loss of use of a foot. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD Frank L. Christian, Counsel INTRODUCTION The veteran served on active duty from November 1959 to September 1962. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of May 1990, May 1992, March 1993, June 1994, and September 1994 from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. REMAND The medical evidence of record shows that in April 1991, the veteran was examined by a private physician, Stephen M. Reed, M.D., and at that time additional studies were recommended, including a magnetic resonance imaging (MRI) scan, a myelogram, and electromyographic (EMG) testing. When examined by the VA in February 1992, the veteran complained of low back pain with radiation to the right leg. Lumbar degenerative disc disease with right lower extremity S1 radiculopathy was diagnosed. A neurologic examination was also performed, and the examiner reported that, without doing an MRI scan of the cervical and lumbar spines and an EMG of the extremities, a more specific diagnosis other than probable myelopathy could not be made and other diagnoses could not be excluded. Further diagnostic testing was suggested. In an informal hearing presentation in June 1993, the veteran's representative requested that the VA obtain the suggested additional diagnostic tests prior to resolving the issues on appeal. In its November 1993 Remand decision, the Board directed that the veteran be scheduled for a neurological examination, to include an MRI and EMG testing. On VA neurologic examination in January 1994, the examiner stated that, while an MRI scan, EMG, and nerve conduction studies had been requested, such studies would in his opinion be normal, and would not be helpful to him in evaluating or diagnosing the veteran's impairment. He declined to order the requested studies. Upon return of the case to the Board, the veteran's representative requested that the case again be remanded to the RO for completion of the recommended MRI scan, EMG, and nerve conduction studies. Pursuant to its duty to assist the veteran in developing and obtaining additional evidence to support his claims and in providing adequate examinations, the Board will again Remand the case to the RO for completion of such studies. The Board notes that the United States Court of Veterans Appeals (COVA) has indicated that the VA cannot ignore requests for diagnostic studies suggested by its own physicians. The Board further notes that, although the veteran has submitted an application for Vocational Rehabilitation (Chapter 31) benefits, his Vocational Rehabilitation folder is not associated with his claims file. Based upon the foregoing, the case is REMANDED to the RO for the following actions: 1. The RO should obtain the veteran's Vocational Rehabilitation and Education (Chapter 31) folder and associate it with his claims folder. 2. The RO should contact the veteran and request that he identify specific names, addresses, and approximate dates of treatment for all health care providers from whom he has received treatment since 1987 for any of the disabilities at issue. With any necessary authorization, the RO should attempt to obtain the treatment records identified by the veteran that have not been secured previously. 3. The RO should then arrange for VA orthopedic and neurological examinations of the veteran by board-certified examiners who have not examined him previously, if available, to determine the nature and extent of his service- connected back disability. All indicated studies must be performed, including an MRI scan, EMG, and nerve conduction studies. The examiners should specifically report clinical findings which confirm or refute the veteran's claim that his service-connected back disability has caused impairment which is equivalent to loss of use of a foot. The examiners should express their opinions, supported by complete rationale, as to what impact, if any, the veteran's service-connected back disability has on his ability to work. The veteran's claims folder should be made available to the examiners prior to the examination. 4. Following completion of the foregoing, the RO must review the claims folder and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, including if the requested examination does not include all test reports, special studies or opinions requested, appropriate corrective action is to be implemented. 5. Thereafter, the RO should undertake any other indicated development, and then readjudicate each of the claims currently in appellate status. If the benefits sought on appeal are not granted to the veteran's satisfaction, the RO should issue a Supplemental Statement of the Case addressing all issues currently in appellate status, and the veteran and his representative should be provided an opportunity to respond. The case should then be returned to the Board for further appellate consideration, if otherwise in order. No action is required of the veteran until he is otherwise notified by the RO. The Board intimates no opinion, either legal or factual, as to the ultimate disposition of these claims. E. W. SEERY 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) (1994).