BVA9508281 DOCKET NO. 93-08 299 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service connected disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Paul J. Somelofske, Associate Counsel INTRODUCTION The veteran served on active duty from August 1943 to September 1945. This matter came before the Board of Veterans' Appeals (Board) on appeal from a February 1992 rating decision of the Department of Veterans Affairs (VA), Boston, Massachusetts, Regional Office (RO), that denied a total disability rating based on individual unemployability due to service connected disabilities. The veteran contends that his service-connected cervical spondylosis and all attendant problems were caused by a scapulectomy performed in a VA hospital in November 1949. It is noted that he is already service connected for a scapulectomy as part of his service-connected pulmonary tuberculosis. In addition, the veteran has argued that since his service- connected cervical spondylosis with cervical and thoracic pain was caused by surgery in 1949, compensation dating back to the initial surgery is warranted. This claim for an earlier effective date for his service-connected cervical spondylosis with cervical and thoracic pain has not been developed or adjudicated by the RO; it is referred to the RO for consideration. REMAND The veteran is service connected for tuberculosis, pulmonary, far advanced, inactive, with thoracoplasty and a partial scapulectomy, left, inactive, evaluated as 80 percent disabling; bilateral frozen feet, evaluated as 50 percent disabling; and cervical spondylosis with cervical and thoracic pain, evaluated as 30 percent disabling. His combined evaluation is 90 percent. He asserts that he has difficulty walking, standing, sitting or lying down, and that he has shortness of breath, poor balance and chronic respiratory problems. He contends that his service- connected disabilities, in aggregate, and associated pain, preclude him from securing and maintaining substantially gainful employment. In the February 1992 rating decision, the RO denied a total disability rating based on individual unemployability due to service-connected disabilities. A July 1992 statement of the case noted that a September 1991 VA neuropsychiatric examination report gave a diagnosis of "organic anxiety syndrome following neurologic surgery and a subsequent deficit;" it was, therefore, concluded that the veteran's unemployability stemmed from his neurologic deficit for which service connection had not been established. The September 1991 VA examination report, however, pertained to a different veteran with a different C-number. Pursuant to MBVA-1, Part 2, Paragraph 6.27c, the copy of the September 1991 VA neuropsychiatric examination report is now attached to the left hand flap of the veteran's claims folder and is labeled "MISFILED DOCUMENTS." It appears that the RO, in considering erroneous medical evidence, has not properly adjudicated the veteran's claim for a total disability rating based on individual unemployability due to service-connected disabilities, nor has provided the veteran adequate reasons and bases for its decision. The July 1992 statement of the case indicates that the RO also considered VA outpatient treatment records from the Bedford, Massachusetts, VA Medical Center for the period of June 1990 to July 1991. The veteran asserts that he had received treatment at this facility from 1980 to September 1991, and that the totality of these records more realistically show the extent of his disabilities. It is noted that most of these records have not been associated with the claims folder. A January 1992 Application for Increased Compensation Based on Individual Unemployability reveals that the veteran was receiving disability retirement benefits The basis for the award is unknown. Lastly, the last VA examination the veteran underwent was in September 1991. The Board believes that a more recent examination of the veteran's service-connected disabilities will be beneficial in adjudicating his claim for a total disability rating based on individual unemployability due to service- connected disabilities. The VA has a duty to assist the veteran in the development of facts pertinent to his claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.103(a) (1994). This duty includes assisting the veteran in securing clinical and treatment records when such records exist, but are not on file. Murphy v. Derwinski, 1 Vet.App. 78 (1990); Littke v. Derwinski, 1 Vet.App. 90 (1990). This duty also includes affording the veteran a VA examination where the reasonable probability of a valid claim is indicated. 38 C.F.R. § 3.326(a) (1994). Under the circumstances of this case, it is believed that further development is necessary prior to the final disposition of the issues on appeal. This case, therefore, is REMANDED to the RO for the following actions: 1. The RO should afford the veteran the opportunity to submit or identify any other evidence pertinent to his claim for a total disability rating based on individual unemployability due to service-connected disabilities. Any evidence identified should be obtained by the RO, and all evidence secured should be associated with the claims folder. 2. The RO should ascertain from the veteran whether he is in receipt of Social Security disability benefits. If so, the RO should obtain from the Social Security Administration the records pertinent to the appellant's claim for Social Security disability benefits as well as the medical records relied upon concerning that claim. Any records obtained should be associated with the claims folder. 3. With the veteran's assistance, the RO should contact the VA outpatient clinic in Bedford, Massachusetts, and secure all treatment and clinical records pertaining to the veteran from 1980 to the present. Any records secured should be associated with the claims folder. 4. The RO should also ascertain from the veteran if he has received treatment at any other VA or private facilities since September 1991 and, if so, after the appropriate releases have been signed, the RO should contact the facilities and obtain from them copies of treatment of the veteran. Once obtained, they should be associated with the claims folder. 5. After the foregoing has been completed and the above records, if any, have been associated with the claims file, the veteran should be afforded a comprehensive VA medical examination by an orthopedist and a pulmonary specialist who have not previously treated the veteran, in order to determine the nature and extent of all service-connected disabilities. The examinations must be conducted in accordance with the VA's Physician's Guide for Disability Evaluation Examinations, and the claims folder must be made available to and reviewed by the examiners prior to the examination. All indicated tests and studies must be conducted, to include X-ray examination, if applicable, and all results are to be reported legibly and in detail. 6. Following completion of the foregoing examination, the RO must review the claims folder and ensure that all of the requested development has been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be taken. 7. After the foregoing has been completed, the RO should readjudicate the veteran's claim for a total disability rating based upon individual unemployability due to service-connected disabilities. After the above has been completed, if the benefit on appeal remains denied, the veteran and his representative should be issued a supplemental statement of the case, which includes adequate reasons and bases for the RO's decision. Thereafter, they should be afforded an opportunity to respond. The case must then be returned to the Board for further appellate consideration. The veteran and his representative need take no further action until notified by the RO. The purpose of this remand is to afford the veteran due process of law and to assist him in the development of his claim. By this remand, we intimate no opinion, either factual or legal, as to the ultimate decision warranted. RENÉE M. PELLETIER 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 ).