BVA9507500 DOCKET NO. 93-17 825 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to a total rating based on individual unemployability due to service-connected disabilities. REPRESENTATION Appellant represented by: Alabama Department of Veterans Affairs ATTORNEY FOR THE BOARD S. L. Kennedy, Counsel REMAND The veteran served on active duty from November 1974 to September 1977. This appeal arises from a January 1993 rating decision of the Department of Veterans Affairs (VA), Montgomery, Alabama, Regional Office (RO). In that decision, the RO denied the veteran's claim of entitlement to a total rating based on individual unemployability due to service-connected disabilities. The Board of Veterans' Appeals (Board) observes that in the January 1993 rating decision, the RO reduced the disability percentage assigned the veteran's service-connected right hip disability from 50 percent to 30 percent, thereby reducing the veteran's combined disability percentage from 70 percent to 60 percent; however, the veteran was not provided proper notice that this action was proposed nor was he informed that such adjudicative action had taken place. It is thus, unclear whether this action was merely an administrative error or whether such action was intended by the RO. On remand, the RO should clarify whether an adjudicative decision had been made to reduce the disability rating at issue and if so, ensure that any such action is formally implemented in compliance with all procedural due process requirements. If such action was not contemplated, the RO should correct and amend the January 1993 rating decision. The VA has a duty to assist a claimant in the development of facts pertinent to his or her claim under 38 C.F.R. § 3.103(a) (1994). The VA's duty to assist specifically includes requesting information from other federal departments or agencies pursuant to 38 U.S.C.A. § 5107(a) (West 1991). Murincsak v. Derwinski, 2 Vet.App. 363 (1992). The record on appeal reflects that the veteran has reportedly been determined to be unemployable due to service-connected disabilities by the Social Security Administration (SSA); he has indicated that he is in receipt of disability benefits on this basis. The Board has carefully reviewed the record on appeal and notes that the medical records upon which this decision was based are not of record. The Board has determined that these records must be obtained and associated with the assembled records. The Board also notes that the veteran has applied for VA vocational rehabilitation training in 1989, 1990 and most recently in 1993. The record on appeal includes an April 1993 memorandum from a VA vocational rehabilitation counselor who indicated that the veteran had been found to be infeasible for training under Chapter 31. While the record on appeal does contain some of the documents relating to the veteran's applications, it is unclear whether the documents included in the veteran's vocational rehabilitation and counseling folder have been associated with the record, particularly those associated with the most recent 1993 decision. On remand, the RO should ensure that any available VA vocational rehabilitation and counseling folder is included with the records assembled for appellate review. Fulfillment of the duty to assist the appellant includes the procurement and consideration of any relevant VA or other medical records. Ferraro v. Derwinski, 1 Vet.App. 326 (1991). The Board observes that the record on appeal includes no recent medical records relating to treatment of the veteran's service-connected disabilities. The RO should obtain current treatment records and associate any available records with the record on appeal. Fulfillment of the VA's duty to assist the veteran includes providing him with a thorough and contemporaneous medical examination. Littke v. Derwinski, 1 Vet.App. 90, 92 (1990). The Board notes that the veteran was afforded a VA examination which was completed in November 1992. The Board has reviewed the report of this examination, and finds, however, that it is inadequate for purposes of determining the objective functional limitations, including that caused by pain, that may be attributed to the veteran's service-connected disabilities. Moreover, the examiner expressed no opinion as to the effect of the veteran's service-connected disabilities on the veteran's employability. Additionally, it appears that the veteran's claims folder was not available to the examiner for review. In light of these factors, the Board has determined that a current VA examination is warranted in this case to determine the nature and severity of the veteran's service-connected disabilities and particularly their effect on his employability. In view of the foregoing, and in order to fully and fairly adjudicate the veteran's claim, the case is REMANDED to the RO for the following action: 1. The RO should request that the veteran identify all sources of medical treatment received for his service-connected disabilities in recent years, and furnish signed authorizations for release to the VA of private medical records in connection with each non-VA medical source he identifies. Copies of the medical records from all sources he identifies (not already in the claims folder) should then be requested. All records obtained should be added to the claims folder. 2. The RO should request a copy of the Social Security Administration decision which reportedly granted disability benefits to the veteran and obtain legible copies of the medical records upon which this decision was based. This evidence should be associated with the veteran's claims folder. 3. The RO should associate any VA vocational rehabilitation and counseling folders which may be available with the records assembled for appellate review. 4. The RO should schedule the veteran for a general medical examination as well as special examinations in neurology and orthopedics to assess the nature, severity, and manifestations of all service-connected disabilities in accordance with the guidelines provided in the Physician's Guide for Disability Evaluation Examinations. It is imperative that the examiners be provided with the claims folder for review in connection with the examinations. All indicated tests should be conducted and any additional indicated special examinations should be accomplished. The examiners should render an opinion as to what effect the disabilities diagnosed have on the veteran's ability to work. The examiners should express a medical opinion as to whether the veteran is unemployable solely due to service-connected disabilities. 5. Thereafter, the RO should readjudicate the veteran's claim. With respect to the January 1993 rating decision, the RO should clarify whether an adjudicative decision had been made to reduce the disability rating assigned the veteran's service- connected right hip disability and if so, ensure that any such action is formally implemented in compliance with all procedural due process requirements. If such action was not contemplated, the RO should correct and amend the January 1993 rating decision. The RO should specifically consider all applicable provisions of 38 C.F.R. § 4.16 (1994). If the determination remains adverse to the veteran, he should be provided a supplemental statement of the case which includes a summary of additional evidence submitted, any additional applicable laws and regulations, and the reasons for the decision. The veteran and his representative should be afforded the applicable time to respond. The case should then be returned to the Board for further appellate review. The purpose of this REMAND is to obtain additional evidence and ensure that the veteran is afforded all due process of law. The Board intimates no opinion, either factual or legal, as to the ultimate conclusion warranted in this case. EUGENE A. O'NEILL 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 action has been taken in accordance with the Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 303, 108 Stat. 4645, ___ (1994), and 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).