BVA9505610 DOCKET NO. 93-06 482 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in San Francisco, California THE ISSUE Entitlement to a total compensation rating based upon individual unemployability. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD Grace Jivens-McRae, Counsel INTRODUCTION The veteran served on active duty from November 1953 to September 1957 and had multiple periods of active duty for training and inactive duty for training between June 1979 and August 1984. In December 1986, he was placed on the temporary disability retirement list. This appeal arises from a June 1991 rating decision of the San Francisco, California, Department of Veterans Affairs (VA) Regional Office (RO), which denied a total rating based upon individual unemployability. It is claimed that the veteran is unable to maintain substantially gainful employment due to his service-connected disabilities. The accredited representative also asserts that the veteran's seizure disorder, in and of itself, causes unemployability. REMAND A review of the record reveals that, during a VA examination of September 1988, the veteran was diagnosed with an organic mental disorder. In May 1990, during his temporary disability retirement list evaluation, the examiner stated that he believed that the veteran had progressive cognitive impairments; however, he believed they were secondary to barbiturate toxicity. During a January 1991 examination, the veteran's cognitive functions were found to be intact. The veteran's most recent VA examination was performed in August 1992. At that time, the veteran was scheduled for a psychiatric examination; however, he advised the RO that he was unable to report for the examination because of illness. He did express his willingness to report for a psychiatric examination if one were scheduled, but it does not appear that any action was taken to reschedule.. VA has a duty to assist the veteran in the development of facts pertinent to his claim. 38 U.S.C.A. § 5107(a) (1991); 38 C.F.R. § 3.103(a) (1994). The United States Court of Veterans Appeals (Court) has held that the duty to assist the claimant includes obtaining available medical records and adequate VA examinations. The duty to assist is neither optional nor discretionary. Littke v. Derwinski, 1 Vet.App. 90 (1990). Further the Court held in Green v. Derwinski, 1 Vet.App. 121 (1991), that the statutory duty to assist includes conducting a thorough and contemporaneous medical examination which takes into account records of prior medical treatment. In view of this, if there are other medical records related to treatment of any of the veteran's service-connected disabilities, to include his seizure disorder, a VA examination should be performed after these records have been obtained. Under the circumstances of this case, the Board finds that additional assistance is required. Accordingly, the case is REMANDED to the RO for the following: 1. The RO should contact the veteran and obtain the names and addresses of any health care providers where the veteran has received treatment for his service- connected disabilities. After obtaining any necessary release of information from the veteran, the RO should obtain copies of these medical records, if any, since 1991 and associate them with the claims folder. 2. Thereafter, the veteran should be afforded a VA special examination in neurology to determine the severity of his service-connected seizure disorder. All indicated testing deemed necessary by the examiner should be performed. The claims folder, in its entirety, should be reviewed by the examiner prior to the evaluation of the veteran so that his disability may be evaluated in its historical context. The examiner should fully describe the nature and severity of the seizures together with the frequency thereof. In addition, the examiner should comment on the functional impairment caused by the veteran's seizure disorder and its effect on his ability to work. 3. The veteran also should be afforded a VA psychiatric examination in conjunction with the neurological examination to determine if he has any cognitive impairment associated with the seizure disorder. The claims folder, in its entirety, should be reviewed by the examiner prior to the evaluation of the veteran so that this disability, if it exists, can be evaluated in its historical context. All indicated tests, including appropriate psychological studies with applicable subscales must be conducted. The examiner must assign a global assessment of functioning score consistent with the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (3rd rev., 1987), and explain what the assigned score represents. A complete rationale for any opinion expressed must be provided. When the aforementioned development has been completed, the RO should review the veteran's claim for a total rating. If the issue of entitlement to a total rating based upon individual unemployability is not resolved to the satisfaction of the veteran, he should be sent a supplemental statement of the case, and the veteran and his representative then should be afforded an opportunity to respond. Following completion of the above action, the case should be returned to the Board for further appellate review. The veteran need take no further action until he is informed. C. W. SYMANSKI 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).