Citation Nr: 9920953	
Decision Date: 07/28/99    Archive Date: 08/03/99

DOCKET NO.  97-13 368	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Chicago, 
Illinois


THE ISSUE

Entitlement to a rating in excess of 20 percent for low back 
disability.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Thomas H. O'Shay, Associate Counsel


INTRODUCTION

The veteran had active military service from May 1974 to May 
1976.  The veteran was on active duty for training in July 
1996.
 
This matter comes before the Board of Veterans' Appeals 
(Board) from a November 1996 rating decision by the 
Department of Veterans Affairs (VA) Regional Office (RO) in 
Chicago, Illinois.  This case was remanded by the Board in 
December 1997; it was returned to the Board in January 1999.


REMAND

Briefly, the record reflects that the veteran was afforded a 
VA examination in November 1996, at which time the examiner, 
a physician's assistant, included findings with respect to 
pain, but failed to provide an opinion regarding functional 
loss due to pain.  Pursuant to the Board's December 1997 
remand the veteran was afforded another VA examination in 
April 1998, at which time the examiner, also a physician's 
assistant, indicated that he was unable to address the 
functional impairment occasioned by the veteran's low back 
disability, to assess any additional degrees of limitation of 
motion during flare-ups, or to characterize the severity of 
the veteran's pain on flare-ups, without resort to 
speculation.  Under the circumstances, the Board is of the 
opinion that the veteran should be afforded a VA examination 
of his disability by a physician.

The Board also notes that VA treatment records from the St. 
Louis, Missouri VA Medical Center (VAMC) for December 1995 to 
February 1999 are on file.  Significantly, all entries after 
February 1997, including those pertaining to treatment of low 
back disability, consist of automated notes.  Those notes 
contain an annotation which explains that they are not 
designed to be inclusive, and which indicates that manual 
records for the pertinent entries exist.  The Board is of the 
opinion that the manual notes associated with the automated 
entries should be obtained prior to adjudication of the 
veteran's claim.

Accordingly, this case is REMANDED to the RO for the 
following actions:

1.  The RO should contact the 
veteran and request that he identify 
specific names, addresses, and 
approximate dates of treatment for 
all health care providers, private 
and VA, who may possess additional 
records pertinent to his claim.  
When the requested information and 
any necessary authorizations have 
been received, the RO should attempt 
to obtain copies of all pertinent 
records which have not already been 
obtained.  In any event, all 
available records, including any 
manual entries, from the St. Louis, 
Missouri, VAMC for July 1996 to the 
present should be obtained.

2.  Then, the RO should arrange for 
the veteran to undergo a VA 
orthopedic examination by a 
physician with appropriate expertise 
to determine the nature and extent 
of impairment from the veteran's 
service-connected low back 
disability.  All indicated studies, 
including X-rays and range of motion 
studies in degrees, should be 
performed.  Tests of joint motion 
against varying resistance should be 
performed.  The extent of any 
incoordination, weakened movement 
and excess fatigability on use 
should be described.  The physician 
should be requested to identify any 
objective evidence of pain or 
functional loss due to pain.  The 
specific functional impairment due 
to pain should be identified, and 
the examiner should be requested to 
assess the extent of any pain.  The 
physician should also express an 
opinion concerning whether there 
would be additional limits on 
functional ability on repeated use 
or during flare-ups (if the veteran 
describes flare-ups), and, if 
feasible, express this in terms of 
additional degrees of limitation of 
motion on repeated use or during 
flare-ups.  If this is not feasible, 
the physician should so state.

The veteran's claims file, including 
a copy of this REMAND, must be made 
available to the examiner for 
review.  The examination report is 
to reflect whether a review of the 
claims file was made.  The 
examination report must be typed. 

3.  Thereafter, the RO should review 
the claims file and ensure that all 
development actions, including the 
medical examination and requested 
opinions, have been conducted and 
completed in full.  Then, the RO 
should undertake any other indicated 
development and readjudicate the 
issue on appeal.  In readjudicating 
the veteran's claim, the RO should 
consider all pertinent diagnostic 
codes under the VA Schedule for 
Rating Disabilities in 38 C.F.R. 
Part 4 and application of 38 C.F.R. 
§ 4.40 regarding functional loss due 
to pain and 38 C.F.R. § 4.45 
regarding weakness, fatigability, 
incoordination and pain on movement 
of a joint.  See DeLuca v. Brown, 8 
Vet. App. 202 (1995).

If the benefit sought on appeal is not granted to the 
veteran's satisfaction, the veteran and his representative 
should be furnished a Supplemental Statement of the Case and 
be afforded an appropriate opportunity to respond.

Thereafter, the case should be returned to the Board for 
further appellate consideration, if otherwise in order.  By 
this REMAND, the Board intimates no opinion as to any final 
outcome warranted.  No action is required of the veteran 
until he is otherwise notified by the RO.

This claim must be afforded expeditious treatment by the RO.  
The law requires that all claims that are remanded by the 
Board of Veterans' Appeals or by the United States Court of 
Appeals for Veterans Claims for additional development or 
other appropriate action must be handled in an expeditious 
manner.  See The Veterans' Benefits Improvements Act of 1994, 
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 
38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and 
Statutory Notes).  In addition, VBA's Adjudication Procedure 
Manual, M21-1, Part IV, directs the ROs to provide 
expeditious handling of all cases that have been remanded by 
the Board and the Court.  See M21-1, Part IV, paras. 8.44-
8.45 and 38.02-38.03.



		
	SHANE A. DURKIN
	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).



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