BVA9506273 DOCKET NO. 93-12 607 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for intermittent claudication. 2. Entitlement to an increased evaluation for bilateral pes planus, currently rated at 30 percent. 3. Entitlement to an increased evaluation for residuals of lumbar strain, currently rated at 20 percent. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. M.. Flatley, Counsel REMAND The veteran had active duty from November 1953 to September 1955. In substantive appeals received in December 1992 and April 1993, as well as in numerous other documents of record, the veteran alleged that his service-connected back and foot have resulted in total disability, rendering him unable to maintain employment. In this regard, the Board of Veterans' Appeals (Board) notes that the United States Court of Veterans Appeals (Court) has held that when an issue raised on appeal, but not developed, may impact upon a fully developed issue, further action with regard to the recently raised issue may be appropriate. Harris v. Derwinski, 1 Vet.App. 180, 183 (1991). The Court has also held that a total rating claim predicated on a particular service-connected disability is inextricably intertwined with a rating increase claim regarding the same disability. Holland v. Brown, 6 Vet.App. 443, 446 (1994). In light of the argument set forth by the veteran, additional development in this regard is indicated. Review of the record also reflects that although substantial clinical data have been collected, an additional Department of Veterans Affairs (VA) examination may prove helpful in the evaluation of the veteran's claim. The veteran has not been afforded such examination for a number of years. In addition, in his December 1992 substantive appeal, the veteran wrote that the Social Security Administration had determined that he was totally disabled. Private treatment was also indicated. The veteran also reported that his neurologic impairment of the spine, described as a "pinched nerve," a herniated disc, and radiating pain, has not been addressed. In April 1993, he referred to degenerative changes and disc disease, which he associates with his service-connected back disability. To ensure that the 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 regional office (RO) for the following development: 1. After any necessary information and authorization are obtained from the veteran, the record upon which the veteran's Social Security determination was based, as well as duplicates of any post- August 1992 treatment, VA or private, inpatient or outpatient, associated with the veteran's bilateral pes planus, residuals of lumbar strain, and intermittent claudication, should be obtained by the RO and incorporated into the claims folder. 2. The veteran should be afforded special VA orthopedic and neurologic examinations to determine the extent and severity of his service-connected residuals of lumbar strain and intermittent claudication. The examinations should be conducted in accordance with the appropriate provisions of the VA's Physician's Guide for Disability Evaluation Examinations. All indicated studies, including radiographic studies, should be conducted; attention is directed to electrodiagnositic study results dated in January 1992. All findings should be recorded in detail, including range of motion of the veteran's lumbar spine. The neurologic examiner should comment on the following: (1) the nature and etiology of any intermittent claudication and its relationship, if any, to the veteran's service-connected pes planus or lumbar strain residuals and (2) the relationship, if any, between any neurologic pathology present in the spine and the veteran's service-connected lumbar strain residuals. The examination reports should include a full description of the veteran's symptoms, clinical findings, and associated functional impairment. Comprehensive reports, which represent consideration of the aforementioned factors, as well as the history of the veteran's disability, should be provided. The veteran's claims folder should be provided to the examiner for review prior to the examination. 3. A special VA podiatry examination should be conducted to determine severity of the veteran's service-connected bilateral pes planus. The examination should be conducted in accordance with the appropriate provisions of the VA's Physician's Guide. All indicated studies should be conducted. The examination report should include a full description of the veteran's symptoms, clinical findings, and associated functional impairment. A comprehensive report, which represents consideration of the aforementioned factors, as well as the history of the veteran's disability, should be provided. The veteran's claims folder should be provided to the examiner for review prior to the examination. 4. The RO should then consider the inextricably intertwined issue of entitlement to a total rating on the basis of individual unemployability. All pertinent law, regulations, and Court decisions should be considered. If the claim is denied, the RO should provide the veteran and his representative with notice of the determination and the right to appeal. If a timely notice of disagreement is filed, he and his representative should be provided with a statement of the case which reflects the applicable law and regulations and a full discussion of action taken on the veteran's claim, consistent with the Court's instruction in Gilbert v. Derwinski, 1 Vet.App. 49 (1990). Reasonable response time should be allowed. 5. The RO should also review the veteran's claim; the veteran's neurologic impairment of the spine and any disc disease or arthritis of the lumbar spine should be addressed with respect to his claim. All pertinent law, regulations, and Court decisions should be considered, including Schafrath v. Derwinski, 1 Vet.App. 589 (1991). If the veteran's claim remains in a denied status, he and his representative should be provided with a supplemental statement of the case, which includes all pertinent law and regulations and a full discussion of action taken on the veteran's claim, consistent with the Court's instruction in Gilbert. Reasonable response time should be allowed. The case should then be returned to the Board, if in order, after compliance with customary appellate procedures. No action is required of the veteran until he is so informed. The Board intimates no opinion as to the ultimate decision warranted in this case, pending completion of the requested development. V. L. JORDAN 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).