BVA9507754 DOCKET NO. 93-13 845 ) 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 rating for chronic pulmonary tuberculosis, pleurisy, inactive, residual of far-advanced pulmonary tuberculosis, inactive, currently evaluated as 60 percent disabling. 2. Entitlement to service connection for amyotrophic lateral sclerosis, including on a secondary basis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and appellant's spouse ATTORNEY FOR THE BOARD Milo H. Hawley, Counsel INTRODUCTION The veteran had active service from August 1942 to April 1945. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 1991 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Board notes that the veteran's representative, in a statement dated November 30, 1993, asserts that the veteran should be awarded a total rating based upon individual unemployability (TDIU) due to service-connected residuals of inactive pulmonary tuberculosis. The representative argues that the Board should defer consideration of the veteran's claim for increase until after the TDIU claim is decided. However, the TDIU claim has not been procedurally developed for appellate consideration and is not properly before the Board at this time. Moreover, it is the Board's view that the claims for increase and TDIU are easily extricable. See Parker v. Brown, 7 Vet.App. 116, 117-118 (1994). The TDIU claim is thus referred to the RO for its consideration. REMAND It is contended that the veteran's inactive pulmonary tuberculosis is more disabling than currently evaluated and that his amyotrophic lateral sclerosis developed as a result of his residuals of inactive pulmonary tuberculosis. The record reflects that the veteran is service-connected for residuals of inactive pulmonary tuberculosis and that a 60 percent rating has been in effect since March 1953. Clinical records relating to hospitalization at a VA facility in Gainesville, Florida, from September to November 1989, reflect that the veteran was diagnosed as having amyotrophic lateral sclerosis. A November 1989, notation on a treatment form directed to Recreation Therapy indicates that the veteran was ventilator dependent secondary to amyotrophic lateral sclerosis. Subsequently, in January 1990, the veteran was transferred to Westshore Hospital. His physician, Keith Chandler, M.D., in a January 1990, report of the veteran's history at admission to Westshore Hospital, made the following statement: "[The veteran] has a number of medical problems but they largely revolve around his amyotrophic lateral sclerosis and ventilator dependence. He has sufficiently preserved axial muscle strength that I suspect were it not for the after effects of his tuberculosis and his treatments, he would yet be ventilator independent." (Emphasis supplied). Subsequently, in July 1991, the veteran underwent a VA examination. The request for that examination indicates that the examiner should furnish an opinion as to whether the veteran would be ventilator-dependent if it were not for his service- connected lung impairment. However, the report of that examination does not reflect that the examiner offered such an opinion. In Allen v. Brown, No. 93-245 (U.S. Vet. App. March 17, 1995), the United States Court of Veterans Appeals (Court) addressed the question of whether, in a case in which a claimant's service- connected disability aggravates, but is not the proximate case of, a nonservice-connected disability, a claimant is entitled to service connection for that increment in severity of the nonservice-connected disability attributable to the service- connected disability. The Court held, in part, that ". . . pursuant to § 1110 and § 3.310(a), when aggravation of a veteran's nonservice-connected condition is proximately due to or the result of a service-connected condition, such veteran shall be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation." Slip op. at 16. In light of the above record and the recent decision by the Court in Allen, the Board believes that additional development is appropriate prior to further appellate review by the Board. Accordingly, the appeal is REMANDED to the RO for the following: 1. The RO should contact the VA medical facilities located in Daytona Beach and Orlando, Florida, and request copies of all records relating to treatment of the veteran prior to September 1989. 2. The RO should contact Westshore Hospital, Vencor Hospital-Tampa, and the VA Hospital in Tampa, Florida, and request copies of all records relating to the veteran's treatment from February 1990, February 1991 and May 1992, respectively. 3. Thereafter, the entire claims file should be reviewed by a VA physician. The physician should offer an opinion as to the likelihood that the veteran's service- connected chronic pulmonary tuberculosis, pleurisy, inactive, residual of far- advanced pulmonary tuberculosis, inactive, aggravated the veteran's nonservice- connected amyotrophic lateral sclerosis. A complete rationale for any opinion expressed must be provided. 4. Following completion of the foregoing, the RO must review the claims folder and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. 5. Following completion of the above, the RO should review the evidence and readjudicate the veteran's claims, including readjudication of the claim for service connection for amyotrophic lateral sclerosis in light of the Court's holding in Allen. Thereafter, the veteran and his representative should be furnished with a supplemental statement of the case and be given the appropriate opportunity to respond thereto. Thereafter, the claims file, including any evidence obtained, should be returned to this Board for further appellate review, if in order. No action by the veteran is required unless he receives further notice. The purposes of this REMAND are to procure clarifying data and accord due process. The Board intimates no opinion, either legal or factual, as to the ultimate disposition of this appeal. CONSTANCE B. TOBIAS 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).