BVA9506371 DOCKET NO. 93-05 858 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an increased evaluation for residuals of a gastrectomy with ulcerative colitis, currently evaluated as 40 percent disabling. 2. Entitlement to a total disability rating based on unemployability due to service-connected disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD John J. Crowley, Associate Counsel REMAND The veteran served on active duty from September 1943 to November 1945 and was a prisoner of war of the German government from November 1944 to May 1945. This matter is currently before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In March 1991, the veteran filed a claim of entitlement to a total disability rating based on unemployability due to service-connected disabilities. The veteran's notice of disagreement specifically refers to this claim as well to the evaluations assigned for several additional service connected conditions. In a statement dated in July 1991, the veteran expressly noted that he did not desire to appeal determinations concerning the evaluation of several other service connected disabilities or the denial of "individual unemployabiliy," and his substantive appeal of September 1991 addresses only the issue of the evaluation of his service connected residuals of a gastrectomy with ulcerative colitis. Notwithstanding these actions, the Board notes that after his July 1991 statement, the veteran subsequently submitted a September 1991 report from Lewis D. Silverman, M.D., the veteran's attending physician, indicating that the veteran's impairments resulting from his service connected gastrointestinal disorder prevented the veteran from carrying on "gainful employment." Further, an August 1992 statement from this physician expressed the opinion that the appellant should be considered for "maximum disability benefits." While the veteran by his expressed comments in his July 1991 statement, and by his omission of comments in his September 1991 substantive appeal, appeared to indicate his desire not to appeal the issue of entitlement to a total disability rating based on unemployability due to service-connected disabilities, in AB v. Brown, 6 Vet.App. 35 (1993) the United States Court of Veterans Appeals (Court) held that on a claim for an original or increased rating, the claimant will generally be presumed to be seeking the maximum benefit allowed by law and regulation. While this issue is not inextricably linked to the veteran's claim for an increased evaluation of his gastrointestinal disability (See Parker v. Brown, 7 Vet.App. 116 (1994)), based on the veteran's statements after September 1991 and the opinions of Dr. Silverman, it appears that the veteran wishes to continue the appeal of this issue to the Board. EF v. Derwinski, 1 Vet.App. 324 (1991). In view of the evidence of record, the veteran's claims appear to be well-grounded within the meaning of 38 U.S.C.A. § 5107 (West 1991). The undersigned believes that additional information is required to determine the degree of industrial impairment resulting from the service-connected disabilities and to determine if the veteran is unemployable as the result of his service-connected disabilities. See Beaty v. Brown, 6 Vet.App. 532 (1994). The Court has held that the duty to assist includes the duty to obtain thorough and contemporaneous VA examinations, including examinations by specialists when indicated, and the duty to obtain pertinent medical records. Counts v. Brown, 6 Vet.App. 473 (1994); Hyder v. Derwinski, 1 Vet.App. 221 (1991); Green v. Derwinski, 1 Vet.App. 121 (1991); Littke v. Derwinski, 1 Vet.App. 90 (1990). Since the record before the Board is inadequate to render a fully informed decision, a remand to the RO is required in order to fulfill its statutory duty to assist the appellant to develop the facts pertinent to the claim. Ascherl v. Brown, 4 Vet.App. 371, 377 (1993). Accordingly, the case is REMANDED to the RO for the following actions: 1. The RO should request the veteran to identify all health care providers who may possess additional records pertinent to his claims. With any necessary authorization from the veteran, the RO should attempt to obtain copies of treatment records from all sources identified by the veteran which have not been previously secured. 2. The veteran should be afforded a VA social and industrial survey to assess his employment history and the effects his service-connected disabilities have had on his employment status and day-to-day functioning. Interviews with the veteran's neighbors and disinterested acquaintances should be accomplished, if possible, concerning his daily activities. A written copy of the VA social worker's report should be associated with the claims folder. 3. The RO should also schedule the veteran for a VA general medical examination to determine the nature and extent of his physical condition, including his service connected acne and the residuals of his frozen feet. All disabilities found present should be identified (e.g., diabetes, etc.), and the examiner should specify their impact on the veteran's ability to gain or retain employment. The examiner should assess the veteran's industrial impairment due solely to his service-connected conditions, mindful of the nonservice-connected disability shown of record. 4. The RO should arrange for a VA psychiatric examination of the veteran by a board certified psychiatrist who has not previously examined the veteran, if available, to determine all current manifestations of his service-connected psychiatric disability. All indicated studies should be performed and the psychiatrist should comment on the degree of social and industrial impairment which the veteran experiences as a result of his service-connected psychiatric disability. The examiner should assign a numerical code under the Global Assessment of Functioning Scale (GAF) provided on pages 22 and 23 of the Quick Reference to the Diagnostic Criteria from DSM-III-R (Third Edition Revised) (DSM-III-R). It is imperative that the physician include a definition of the numerical code assigned under DSM-III-R in order to assist the RO and the Board to comply with the requirements of Thurber v. Brown, 5 Vet.App. 119 (1993). The claims folder should be made available to the examiner prior to the examination of the veteran. 5. The RO should arrange for a VA examination of the veteran by a board certified gastroenterologist who has not previously examined the veteran, if available, to determine all current manifestations of the service-connected residuals of a subtotal gastrectomy with ulcerative colitis. Specifically, the examiner should indicate whether the veteran suffers from severe postgastrectomy syndromes, including, but not limited to, nausea, sweating, circulatory disturbances after meals, diarrhea, hypoglycemic symptoms, and weight loss with malnutrition and anemia. All indicated studies should be performed and the gastroenterologist should comment on the degree of social and industrial impairment which the veteran experiences as a result of his service- connected disability. The examiner should fully explain the rationale for all opinions. The claims folder should be made available to the examiner in conjunction with the examination of the veteran. 6. Thereafter, the RO should readjudicate the claim for entitlement to an increased evaluation for the residuals of a gastrectomy with ulcerative colitis. If the foregoing determination does not result in a grant of a 100 percent schedular rating, the claim for a 100 percent rating based on unemployability due to service- connected disabilities should be adjudicated with consideration of 38 C.F.R. §§ 3.321(b)(1) and 4.16(c) (1993). Specific reference should be made to the veteran's additional service connected disabilities. If the benefits sought on appeal are not granted to the veteran's satisfaction, he should be provided a supplemental statement of the case on all issues in appellate status and afforded an opportunity to respond. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. In taking this action, the Board implies no conclusion, either legal or factual, as to any ultimate outcome warranted. No action is required of the veteran until he is notified by the RO. RICHARD B. FRANK 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) (1993).