Citation Nr: 0006239 Decision Date: 03/08/00 Archive Date: 03/17/00 DOCKET NO. 98-15 747A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE What evaluation is warranted for service connected residuals of a cerebrovascular accident from February 14, 1997. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Appellant and appellant's wife ATTORNEY FOR THE BOARD Nadine W. Benjamin, Counsel INTRODUCTION The veteran served on active duty from November 1947 to November 1967. This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. In his October 1998 Substantive Appeal, the veteran argued that he was not employable in his present condition. The Board construes this as an informal claim of entitlement to a total disability rating based on unemployability due to service-connected disability, and the matter is referred to the RO for consideration. REMAND The veteran seeks an evaluation in excess of the currently assigned 30 percent for his service-connected residuals of a cerebrovascular accident (CVA). The record shows that the veteran has various complaints which he attributes to his CVA, and which he stated at his hearing have also been attributed to his CVA by his doctors. At his March 1999 hearing, he reported having dizziness, loss of balance, sleep apnea, shaking of the right side, falling down, shortness of breath, bowel incontinence, and emotional instability. The veteran's wife confirmed witnessing the veteran's complaints. The RO has rated the veteran's residuals of a CVA utilizing 38 C.F.R. § 4.124a, Diagnostic Code 8008. Under this code, the veteran's disability is rated a minimum of 10 percent disabling, provided that residuals are objectively ascertainable. When ratings in excess of the prescribed 10 percent rating are assigned, the disability must be evaluated by analogy under the criteria of diagnostic codes relating to the impairment shown. 38 C.F.R. § 4.124a, Note. The RO assigned the 30 percent evaluation by analogy using Diagnostic Code 8105, representing moderate impairment. The Board is unsure from the record which of the veteran's complaints are solely attributable to his service connected CVA and thus further development is warranted. Inasmuch as this matter involves a question of medical judgment, the Board is of the opinion that additional development would be helpful. The status of a disability is a medical determination that must be made from the records, without resort to independent medical judgment by the Board. Colvin v. Derwinski, 1 Vet. App. 171 (1991). Where the record before the Board is inadequate to render a fully informed decision, a remand to the RO is required in order to fulfill the statutory duty to assist. Ascherl v. Brown, 4 Vet. App. 371, 377 (1993). Accordingly, the appeal is REMANDED to the RO for the following development: 1. The RO should inform the veteran concerning the submission of statements from his physician(s) containing opinion(s) concerning the etiology of his complaints. Sufficient time should be provided to the veteran for the securing of such evidence. 2. Then, the RO should schedule the veteran for an examination by a cardiovascular specialist who has not previously examined him, if available, to evaluate the veteran's complaints in conjunction with his service-connected residuals of a CVA. The examiner must review a copy of this remand, and the material contained in the veteran's 3- volume claims file in conjunction with the examination, and upon doing so, the examiner should note this in the record. All indicated studies and laboratory tests should be performed. The examiner should document all pertinent findings, and in view of the veteran's complaints, differentiate, to the extent possible, any manifestations referable solely to the veteran's service-connected CVA. An opinion concerning the etiology of the veteran's complaints as noted above must be provided, with supporting reasoning. The examiner should comment on the employability of the veteran. A complete rationale for all opinions and conclusions expressed should be given. 3. After the examination has been completed, the RO should review the examination report to insure that it complies with the directives of this remand, and if not, corrective action must be taken. 4. Then the RO should take any other necessary action, and readjudicate the issue on appeal consistent with the staged rating provisions of the decision in Fenderson v. West, 12 Vet. App. 119 (1999), and the findings in Esteban v. Brown, 6 Vet. App. 259,261 (1994) regarding separate disability ratings. After completion of the requested actions, the RO should review the evidence and determine whether the veteran's claim may be granted. If not, the veteran and his representative should be provided with an appropriate Supplemental Statement of the Case. After allowing the veteran appropriate time to respond, the case should be returned to the Board for further appellate review, if otherwise in order. By this remand, the Board intimates no opinion as to the final outcome warranted. No action is required of the veteran until he is notified by the RO. The veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). F. JUDGE FLOWERS Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. 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) (1999).