BVA9503134 DOCKET NO. 93-07 475 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to service connection for arthritis of the entire spine. 2. Entitlement to service connection for a heart murmur. 3. Entitlement to an increased rating for the residuals of an injury to the lumbar spine, currently rated 20 percent disabling. 4. Entitlement to an increased rating for the residuals of an injury to the cervical spine, including post-traumatic arthritis, currently rated 10 percent disabling. 5. Entitlement to an increased rating for headaches, currently rated 10 percent disabling. 6. Entitlement to an increased rating for analgesic duodenitis and gastritis (claimed as ulcers), currently rated 10 percent disabling. 7. Entitlement to an increased (compensable) rating for the residuals of an injury to the thoracic spine. 8. Entitlement to an increased (compensable) rating for the residuals of an injury to the right shoulder. 9. Entitlement to a total disability rating on the basis of individual unemployability due to the service-connected disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D.P. Dean, Counsel INTRODUCTION The appellant served in the Army Reserves. She had active military service from September 13 to September 17, 1989, when she was injured while serving on active duty for training. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating determinations by the Pittsburgh, Pennsylvania, Regional Office (RO) of the Department of Veterans Affairs (VA). In March 1992, a hearing was held at the RO at which the appellant appeared and explained her contentions. A transcript of that hearing is of record. REMAND During the course of this appeal, the appellant and her representative have raised several additional issues which the RO has not yet had the opportunity to consider. For example, in an informal hearing presentation to the Board dated in July 1993, the representative specifically asserted a claim on behalf of the appellant seeking service connection for a psychiatric disability as secondary to the service-connected disabilities. Subsequently, a written communication was received from the appellant in November 1993 in which she indicated that her conditioned had worsened due to the recent diagnosis of both hypertension and diabetes. The appellant indicated that she believed that this new evidence would result in increased compensation. A liberal reading of this letter, as required by Myers v. Derwinski, 1 Vet.App. 127, 129 (1991); and EF v. Derwinski, 1 Vet.App. 324 (1991), leads to the conclusion that the appellant is asserting new claims seeking service connection for hypertension and diabetes. All of these additional issues materially affect the outcome of the total rating claim as well. They are inextricably intertwined with the total rating issue, requiring that the RO adjudicate all of these issues at the same time. See Harris v. Derwinski, 1 Vet.App. 180 (1991). In the July 1993 informal hearing presentation, the representative also specifically and formally requested that consideration be given to an extraschedular basis for a total rating due to individual unemployability. This appears to have been done by the Hearing Officer in his decision of September 1992. However, in this connection, the Board would point out that the United States Court of Veterans Appeals (Court) has held that a determination not to refer a case for extraschedular consideration constitutes a separate adjudication which is, like all other such adjudications, subject to the claimant's right to appeal. Fisher v. Principi, 4 Vet.App. 57 (1993). It is not clear that the appellant's rights with respect to this aspect of the Hearing Officer's decision have been fully explained to her. The appellant is in receipt of Social Security disability benefits, and the claims file contains a copy of the August 1989 decision of an administrative law judge which awarded her those benefits. However, the RO has not had the opportunity to review the medical records upon which that decision was based, and these records are undoubtedly relevant to the total rating issue in the present appeal, and possibly to others as well. Accordingly, this appeal is hereby remanded to the RO for the following further actions: 1. The RO should obtain and incorporate into the claims file copies of any private or VA medical records not already contained within the claims file pertaining to the treatment or evaluation of any of the appellant's disabilities since September 1987. 2. The RO should contact the Social Security Administration and request copies of all records, especially medical records, pertaining to the appellant's claim for disability benefits from that agency. The attention of the Social Security Administration should be directed to 38 U.S.C.A. § 5106 (West 1991). 3. The RO should schedule the appellant for a comprehensive general medical examination and an examination by an orthopedic specialist (board certified, if available) in order to determine the current nature and severity of the service- connected disabilities and the other disabilities at issue. The examiners should also be requested to provide a medical opinion, based upon a review of the material in the claims file, as to the etiology of all currently demonstrated disabilities, particularly whether any of them are related to the fall in service. 4. After undertaking any further development deemed appropriate, the RO should readjudicate the issues currently on appeal to the Board, as well as the additional issues of entitlement to service connection for hypertension, diabetes, or a psychiatric disability. Consideration should be given to the question of an extraschedular rating under 38 C.F.R. §§ 3.321(b)(1) and 4.16(b), and appropriate procedures followed to comply with Fisher v. Principi, 4 Vet.App. 57 (1993). If any or all of the aforementioned determinations remain adverse to the appellant, she should be informed in writing of the RO's reasons and bases for its unfavorable determinations, and of her appellate rights with respect to the new issues. If the benefits sought on appeal are not granted to the appellant's satisfaction, or if a timely Notice of Disagreement is received with respect to any other matter, including any additional issues raised by the appellant, a Supplemental Statement of the Case addressing all issues in appellate status should be prepared and furnished to the appellant and her representative. They should be provided an opportunity in which to respond. Thereafter, in accordance with proper appellate procedures, the case should be returned to the Board for further appellate review, if otherwise in order. All issues properly in appellate status should be returned to the Board at the same time. (CONTINUED ON NEXT PAGE) In taking this action, the Board implies no conclusion, either legal or factual, as to any final outcome warranted. No action is required of the appellant until she is otherwise notified by the RO. BRUCE E. HYMAN 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).