BVA9501216 DOCKET NO. 90-29 083 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for a cardiac disability. 2. Entitlement to an increased rating for bronchial asthma with reactive airway disease and bronchiectasis, evaluated as 30 percent disabling. 3. Entitlement to an increased (compensable) rating for patellofemoral crepitance of the right knee. 4. Entitlement to an increased (compensable) rating for patellofemoral crepitance of the left knee. 5. Entitlement to an increased (compensable) rating for acne vulgaris. 6. Entitlement to an increased (compensable) rating for a history of athlete's foot and jungle rot. 7. Entitlement to a total rating for compensation purposes based on individual unemployability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL The veteran ATTORNEY FOR THE BOARD W. Pope, Counsel INTRODUCTION The veteran had active service from June 1968 to June 1971 and from September 1971 to May 1989. This matter was initially before the Board of Veterans' Appeals (Board) on appeal from a December 1989 rating decision which established service connection for the disabilities on appeal and assigned noncompensable disability rating for each disability, with the exception of a 10 percent disability rating for bronchial asthma. The benefits were effective from May 24, 1989, the day following the veteran's separation from service. The veteran was present for a hearing before members of the Board in Washington, D.C., in April 1991. The Board remanded the appeal to the RO for further development in May 1991. A July 1991 rating decision assigned a 30 percent disability rating for the veteran's service-connected bronchial asthma with reactive airway disease and bronchiectasis. This appeal also arises from December 1991 rating decision which denied a total rating for compensation purposes based on individual unemployability. The veteran was present for a hearing before a member of the Board in Washington, D.C., in July 1992. The Board remanded the appeal to the RO for further development in November 1992. REMAND The veteran contends, in essence, that the service-connected disabilities on appeal are productive of greater impairment than reflected by the individual ratings currently assigned, and that his service-connected disabilities, especially his pulmonary disability, prevent him from maintaining gainful employment. The Board's November 1992 remand instructed the RO to obtain addition medical records and to provide the veteran with examinations by VA to evaluate the service-connected disabilities on appeal. It was specifically stated that "[t]he examiners should...comment on the degree to which the service-connected disabilities could affect the veteran's ability to work." Unfortunately, the development on remand was, in some respects, insufficient. While the veteran received examinations covering the majority of his service-connected disabilities, the examiners did not provide the requested medical opinions concerning the effect of each service-connected disability on the veteran's employability. The Board wishes to point out that under 38 C.F.R. § 4.10 (1993), disability evaluations are to include a "full description of the effects of disability" upon the veteran's ordinary activities. In this regard, the United States Court of Veterans Appeals (Court) has stated out that VA's duty to assist under 38 U.S.C.A. § 5107 (West 1991) includes the conduct of a thorough and contemporaneous examination which considers the "disability 'from the point of view of the veteran working or seeking work.' 38 C.F.R. § 4.2" (1993) Schafrath v. Derwinski, 1 Vet.App. 589, 595 (1991). Furthermore, the Court has determined that a remand is required when an examiner has not rendered an opinion requested by VA. See Smith v. Brown, 5 Vet.App. 335, 340 (1993). The Board also notes that the reports of the March 1992 examinations by VA indicate that the veteran's medical history, contained in his claims file, was not reviewed by the examiners prior to the examinations. Again, as noted by the Court, VA's duty to assist under 38 U.S.C.A. § 5107 (West 1991) includes the conduct of a thorough and contemporaneous examination which includes "trac[ing] the medical-industrial history...from the original injury...and the course of recovery to date." Schafrath, 1 Vet.App. at 595. In a July 1994 statement the veteran's representative asserted that March 1993 X-rays studies by VA show an enlargement of the veteran's heart, which is indicative of "an acquired cardiac condition" caused by the veteran's service-connected hypertension. Although the medical evidence of record does not confirm a diagnosis of a heart disorder, the Board finds that the issue of entitlement to service connection for a cardiac disability, as proximately due to or the result of the veteran's service- connected hypertension, is an "inextricably intertwined" issue which has not been developed for appellate review. See Harris v. Derwinski, 1 Vet.App. 180, 183 (1991). Obviously, consideration of service connection on this basis is pertinent to final determination of the issue of a total rating for compensation purposes based on individual unemployability. To ensure that 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 RO for the following development: 1. The appellant should receive a VA examination from a cardiologist to evaluate the extent of his service-connected hypertension and any related cardiac disability. The claims file, including a copy of this REMAND, should be made available to the examiner before the examination, for proper review of the medical history. The examination report is to reflect whether such a review of the claims file was made and include the examiner's opinion as to whether the veteran has an actual cardiac disease which is directly attributable to his service- connected hypertension. The examination report should also include the examiner's opinion as to the effect that the service- connected hypertension and any identified cardiac disability have on the veteran's ability to work at substantially gainful employment. 2. The veteran should be afforded appropriate examinations by VA to evaluate the current extent of his remaining service- connected disabilities. This should include a special evaluation by a specialist in pulmonary disease in order to ascertain the severity of the service-connected bronchial asthma with reactive airway disease and bronchiectasis. All indicated testing should be done in this regard so that the examiner can comment on the degree of pulmonary disability and actual impairment of respiratory function. The frequency of any attacks of asthma should be stated, and the examiner should identify all residuals of bronchiectasis, along with the resulting level of incapacity. The claims file, including a copy of this REMAND, should be made available to each examiner prior to an examination, for proper review of the medical history. The examination reports are to reflect whether such a review of the claims file was made and include an examiner's opinion as to the effect that each service-connected disability has on the veteran's ability to work at substantially gainful employment. 3. After the development requested above has been completed, the RO should review the veteran's claims. This should include initial adjudication and procedural development of the issue of entitlement to service connection for a cardiac disability and the issue of entitlement to a total rating for compensation purposes based on individual unemployability with consideration of the "average person" test set forth in 38 C.F.R. § 4.15 (1993) and the "unemployability" standard set forth in 38 C.F.R. § 4.16 (1993). If either benefit is denied, the appellant and representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise notified. STEPHEN L. WILKINS 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).