BVA9506043 DOCKET NO. 91-24 098 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE 1. Entitlement to an increased evaluation for degenerative disc disease of the lumbosacral spine with radiculopathy and residuals of a compression fracture involving the L4-L5, currently evaluated as 60 percent disabling. 2. Entitlement to an increased (compensable) evaluation for rheumatoid arthritis involving the sacroiliac joints. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD Robert P. Regan, Counsel INTRODUCTION The appellant served on active duty from April 1961 to February 1964. This matter came before the Board of Veterans' Appeals (Board) on appeal from a July 1989 rating determination by the Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board in February 1992 and in October 1993. In October 1993, the Board granted entitlement to service connection for degenerative disc disease and degenerative arthritis involving the lumbosacral spine on a secondary basis. The Board, in addition, remanded the case in order for the RO to assign a rating percentage under the appropriate diagnostic code which reflected the aggregate impairment of the service-connected disabilities involving the lumbosacral spine, to include the residuals of a compression fracture involving the L4-5. In a December 1993 rating determination, the RO assigned a 60 percent evaluation for degenerative disc disease, L4-L5 with radiculopathy and residuals of a compression fracture, L4-L5. The RO confirmed a no percent evaluation which was in effect for rheumatoid arthritis, sacroiliac joint. Service connection is also in effect for testicular atrophy, bilateral, evaluated as 20 percent disabling. The combined evaluation is 70 percent effective from July 1988. REMAND Initially, the Board has found that the appellant's claims are well grounded pursuant to 38 U.S.C.A. § 5107 (West 1991) in that his claims are plausible, that is meritorious on its own, or capable of substantiation. Murphy v. Derwinski, 1 Vet.App. 78, (1990). This finding is based upon the appellant's evidentiary assertions concerning symptoms that are within the competence of a lay party to report. King v. Brown, 5 Vet.App. 19 (1993). Once it has been determined that a claim is well grounded, VA has the statutory duty to assist the appellant in the development of evidence pertinent to that claim. 38 U.S.C.A. § 5107. In the appellant's original application for compensation benefits for a back disability received in February 1989, he indicated that he was totally disabled due to his back disorder. As previously indicated, the Board granted entitlement to service connection for degenerative disc disease and arthritis involving the lumbosacral spine in October 1993. Accordingly, the Board construes the appellant's original application for compensation benefits as being a claim of entitlement to a total rating for compensation purposes based upon individual unemployability. This should be adjudicated by the RO. The evidence submitted by the appellant indicates that he has had difficulty working due to his back disorders. The record further reflects that the appellant's degenerative disc disease, degenerative arthritis, and residuals of a compression fracture of the L4-L5 are rated at 60 percent under Diagnostic Code 5293, which provides for the evaluation of intervertebral disc syndrome. 38 C.F.R. Part 4 (1994). This is the highest schedular evaluation permitted under this diagnostic code. The record does not indicate whether the RO has considered an extraschedular evaluation pursuant to 38 C.F.R. § 3.321(b)(1994). In accordance with the statutory duty to assist the appellant in the development of evidence pertinent to his claim, the case is REMANDED for the following actions: 1. The RO should furnish the appellant the appropriate release of information forms in order to obtain copies of all private medical records regarding treatment for his service-connected back disability subsequent to March 1990. The RO should furnish the appellant a formal application for a claim of a total rating for compensation purposes based on individual unemployability benefits. The RO should also ask the appellant if he has received or is receiving Social Security disability benefits or workman compensation benefits, and if the response is affirmative, the RO should obtain a copy of the decision or decisions awarding the benefit and the evidence on which the decision or decisions were based. 2. The RO should request the VA medical facilities located in Reno, Nevada, and Sepulveda, California, to furnish copies of all medical records covering the period 1988 up to the present. 3. A VA examination should be conducted by a neurologist in order to determine the nature and severity of the service- connected low back disabilities. It is requested that electromyogram and nerve conduction studies be performed, and any other testing deemed necessary. It is requested that the examiner conduct range of motion studies of the lumbosacral spine, to include the specific degrees of range of motion which constitute normal. The claims folder is to be made available to the examiner in conjunction with the examination. 4. A VA examination should be conducted by a rheumatologist in order to determine the nature and severity of the rheumatoid arthritis involving the sacroiliac joints. It is requested that the examiner specify whether the rheumatoid arthritis is active or inactive. All testing deemed necessary should be performed. The claims folder is to be made available to the examiner in conjunction with the examination. 5. A VA industrial survey should be performed in order to determine the effect the appellant's service-connected low back disabilities has had on his ability to obtain and maintain gainful employment since his back disabilities became symptomatic in 1988. The appellant's employment history should be set forth in detail. The claims folder is to be made available to the examiner in conjunction with the survey. 6. Thereafter, the RO should adjudicate the issue of entitlement to a total rating for compensation purposes based upon individual unemployability. If the benefit sought is not granted, the appellant and his representative should be notified of that determination and of his appellate rights. 7. The RO should readjudicate the issues of entitlement to increased evaluations for the degenerative disc disease, degenerative arthritis involving the lumbosacral spine and the residuals of the compression fracture involving L4-L5, in conjunction with 38 C.F.R. § 3.321(b), and rheumatoid arthritis involving the sacroiliac joints The RO is requested to consider the applicability of 38 C.F.R. § 4.14 (1994) in assigning a separate evaluation for the rheumatoid arthritis involving the sacroiliac joints. If the remaining benefits sought are not granted, the appellant and his representative should be furnished a supplemental statement of the case and an opportunity to respond. The supplemental statement of the case is to include 38 C.F.R. § 3.321(b). The case should then be returned to the Board for further appellate consideration. By this action the Board intimates no opinion. legal or factual, as to the ultimate disposition warranted. 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) (1994).