BVA9505607 DOCKET NO. 92-00 804 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Manila, Philippines THE ISSUES 1. An increased disability rating for residuals of a shrapnel wound of the low back, currently evaluated as 40 percent disabling. 2. Service connection for a disorder of the cervical spine, claimed as secondary to service-connected residuals of a shrapnel wound of the low back. 3. A total rating based on individual unemployability due to service-connected disabilities. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Barry F. Bohan, Counsel INTRODUCTION The appellant had recognized guerrilla service from April 1945 to February 1946. He sustained a shrapnel wound of the low back in June 1945 when a Japanese booby trap exploded nearby. In June 1955, service connection was granted for a shell fragment wound of the back, with slight limitation of motion and retained metallic foreign body. A 10 percent disability rating was assigned. In a March 1956 decision, the Board of Veterans' Appeals (the Board) granted an increase in the service-connected disability rating, to 20 percent. In an August 1984 rating decision, a 40 percent disability rating was assigned. This appeal arose from an October 1991 decision of the Department of Veterans Affairs Regional Office in Manila, Philippines which denied the appellant an increased rating for his service- connected back wound. Service connection was also denied for cervical stenosis with C3-4 disc bulge and partial paralysis of both legs. During the course of the appeal, the appellant raised the issue of entitlement to a total rating based on individual unemployability due to service-connected disabilities. In March 1994, the Board remanded this case so that the appellant could be afforded the opportunity of appearing and testifying at a personal hearing at the Department of Veterans Affairs Regional Office in Reno, Nevada, his state of residence, as he had requested. The Board also required further evidentiary development, to include orthopedic and neurological examinations of the appellant. The examiners were asked to render specific opinions concerning the relationship, if any, between the appellant's in-service shrapnel injury and his cervical spinal pathology. Fee basis examinations of the appellant were completed in September 1994. In October 1994, VARO issued a Supplemental Statement of the case which denied the appellant's claim as to all of the issues listed above. The appellant's claims folders were returned to the Board, where the case was received in January 1995. REMAND The Appellant's accredited representative, in a February 1995 informal presentation, pointed out that, contrary to the instructions which were contained in the Board's March 1994 remand, the appellant was not given the opportunity to appear and testify at a personal hearing. The Board has carefully reviewed the record and cannot identify any effort made by VARO to contact the appellant in order to schedule the hearing. In the February 1995 informal presentation, the appellant's representative also contended, in substance, that recent medical examinations of the appellant were inadequate. In particular, the appellant's representative rejects as unacceptably vague the conclusion of the neurological examiner in June 1994: "it would be impossible to say at this point that the patient developed spondylosis of the neck as a result of the injury in 1945." The Board notes, however, that such conclusion would not necessarily be within the area of expertise of a neurological examiner. The orthopedic examiner did in fact render a specific opinion on the subject, which is within his area of specialization: "[t]here is no etiologic nor causal relationship between the in-service shrapnel injury and the cervical spine pathology, or between the service-connected residual low back impairment and the onset of the cervical spinal pathology." The Board may take into consideration the area of expertise of examining physicians. Guerrieri v. Brown, 4 Vet.App. 467, 470-1 (1993). The appellant is free to submit additional evidence in support of his claim, if he so desires. Quarles v. Derwinski, 3 Vet.App. 129, 141 (1992). The Board believes that further development is necessary in this case. The case is therefore REMANDED to VARO for the following action: VARO should contact the appellant through his representative so that the personal hearing which was requested by the appellant can be scheduled. After the above development has been completed, VARO should readjudicate the appellant's claim. If the claim remains denied, the case should be returned to the Board after compliance with all requisite appellate procedure. The purpose of this REMAND is to procure clarifying data. The Board intimates no opinion as to the ultimate conclusion warranted, pending completion of the requested development. No action is necessary on the appellant's part until he receives further notice. KENNETH R. ANDREWS, JR. 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).