BVA9501887 DOCKET NO. 93-08 760 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to a permanent and total disability rating for pension purposes. ATTORNEY FOR THE BOARD Thomas C. Taylor, Associate Counsel INTRODUCTION Appellant served on active duty from April 1967 to October 1970. This matter came before the Board of Veterans' Appeals (Board) on appeal of a September 1992 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) which denied entitlement to a nonservice-connected disability pension. The veteran contends that his nonservice-connected disabilities are permanent and preclude him from gainful employment. REMAND The threshold question in all cases is whether the claim is well- grounded under 38 U.S.C.A. § 5107(a). Boeck v. Brown, 6 Vet.App. 14, 17 (1993). A well-grounded claim is a plausible claim which is meritorious on its own or capable of substantiation. Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). There must be more than a mere allegation; the claim must be accompanied by evidence that justifies a belief by a fair and impartial individual that the claim is plausible. Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992). Where the issue is factual in nature, e.g., whether an incident occurred during service or whether a clinical symptom is present, competent lay testimony may constitute sufficient evidence to establish a well- grounded claim. Cartright v. Derwinski, 2 Vet.App 24 (1991). Any adjudication on the merits of a claim which is not well-grounded would constitute error. Grivois v. Brown, 6 Vet.App. 136 (1994). Here, the veteran has the requisite wartime service providing basic eligibility for a VA nonservice-connected disability pension. He has stated that he is unable to work due to a back disability. His evidentiary assertions concerning manifestations of disabilities that are within the competence of a lay party to report must be presumed to be true for purposes of determining whether the claim is well grounded. King v. Brown, 5 Vet.App. 19 (1993). In view of these assertions and the clinical evidence now of record, the Board finds that the veteran's claim is well grounded within the meaning of 38 U.S.C.A. § 5107. That is, he has presented a claim which is plausible. The United States Court of Veterans Appeals (Court) has provided an analytical framework for application in pension cases. Talley v. Derwinski, 2 Vet.App. 282 (1992); Roberts v. Derwinski, 2 Vet.App. 387 (1992); and Brown v. Derwinski, 2 Vet.App. 444 (1992). The holdings in these cases are to the combined effect that the Department of Veterans Affairs (VA) has a duty to insure: that an appropriate rating for each disability of record is assigned using the approach mandated by Schafrath v. Derwinski, 1 Vet. App. 589 (1991); that the "average person" and "unemployability" tests are both applied; and that if the benefit may not be awarded under the "average person" or "unemployability" tests, a determination must then be made whether there is entitlement to nonservice-connected disability pension on an extraschedular basis. The "average person" (or objective) test is rooted in 38 U.S.C.A. § 1502(a)(1) (West 1991) and 38 C.F.R. § 4.15 (1993) and mandates that total disability will be found to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation, provided that the impairment is reasonably certain to continue throughout the life of the disabled person. The "unemployability" (or subjective) test arises from 38 U.S.C.A. § 1521(a) (West 1991) and 38 C.F.R. §§ 3.321(b)(2), 4.17 (1993) and mandates that where it is shown that the appellant's disabilities meet the percentage requirements of 38 C.F.R. § 4.16 (1993), and it is shown that they are permanent in nature, a determination should be made whether such disabilities render him or her incapable of substantially gainful employment. If so, the veteran meets the requirements of the law for the benefit at issue. Finally, if the veteran does not meet either the "average person" or the "unemployability" tests, a determination is required as to whether the veteran should be granted entitlement to nonservice- connected disability pension on an extraschedular basis, pursuant to the provisions of 38 C.F.R. § 3.321(b)(2) (1993), on the basis that he or she is unemployable by virtue of age, occupational background or other related factors. The veteran has asserted that he has numbness in his left arm and left leg, and various a back disabilities which preclude him from gainful employment. The record contains a discharge summary from a VA hospital, dated in February 1992, that precipitated the veteran's claim. That summary states that the veteran: ... is a 43 year old male complaining of left[-] sided numbness for the past four years. [He] reported this to be related to numbness and weakness in the left leg with occasional pain. He is able to walk a quarter of a mile only, then gets calf numbness, posterior thigh, foot[,] legs[,] and buttock. He has fallen many times secondary to his. He denies any symptoms on the right side. No back pain, no bowel or bladder problems... . . . SOCIAL HISTORY: Employed, laid off electronic worker. ... PHYSICAL EXAM: ...He underwent CT, myelogram which showed a lateral stenosis at the 4-5 level. Also with these CT reconstructions[,] it was felt that there was an abnormal fascet (sic) in the L4-5 area which was causing the compression on the L5 nerve root. ... [He] underwent a laminectomy and decompression of L4-5 with L5 nerve root decompression. He did well postoperatively. He was out of bed on postoperative day one and was taking a normal diet. He was given Demorol for pain initially and then transferred to Tylenol #3. Up and walking, he reported a relief of the numbness and pain in the legs. His wound looked okay. He was discharged on 2/3/92 to go home. A report of a VA medical examination, dated in August 1992, contained the following examination results: This 44-year-old veteran states that about 2-1/2 years ago while he was walking, he noticed that his left leg was going numb. He felt that there were more paresthesias (sic) on that side and he then started to notice paresthesias (sic) in the left arm. If he was sitting, the left arm would go numb without any reason and it sometimes would occur without numbness in this legs. He would sometimes have sharp pain over the supraspinatus of the left. At the same time he had numbness in the hand. He continued to have paresthetic numbness in the leg and following myelography and MRI he had an L4-5 disc removal and laminectomy for a facet overgrowth which was pressing on the nerve root. He was told by a consultant that his back was too badly damaged to use steel rods. He had a scoliosis with a compensatory scoliosis to the opposite site. He finds that paresthesias (sic) in this arms consist of primarily paresthesias (sic) in the middle three fingers which do not go into the fifth finger to a great degree or to the thumb. He states that following surgery on his lumbar spine he has had very little improvement in the paresthesias (sic) in his legs. Neurologic examination shows a slight scoliosis with convexity to the right in the lumbar region and a compensatory scoliosis with convexity to the left in the thoracic region. His left shoulder is lower than his right shoulder and shows no weakness, wasting or fasciculations in muscles of either the arm or leg. Reflexes are equal and active and straight-leg raising is 90 degrees bilaterally. He has a well-healed [scar along the] midline [of his] lumber spine. Subsequent radiological reports confirmed a diagnosis of lumbosacral radiculopathy and scoliosis. The examiner also opined the possibility of left carpal tunnel syndrome. The veteran's DD Form 214 indicates that he worked as an air passenger specialist during his military service. His application for pension benefits indicates that was employed by United Circuits as a supervisor in manufacturing until April 1991. He had worked for 12 months with no time lost from illness. He has completed a high school education. The VA examination report, dated in August 1992, indicates that he is right handed. The RO has rated the veteran's disabilities as follows: 5293-5290 10% DISC HERNIATION, CERVICAL SPINE 5293-5291 10% DISC HERNIATION, THORACIC SPINE 5293-5292 20% RESIDUALS OF LAMINECTOMY, L4-5 WITH RADICULOPATHY 8515 10% LEFT CARPAL TUNNEL SYNDROME The veteran is currently rated under 38 C.F.R. § 4.71a, Codes 5293- 5290, intervertebral disc syndrome with limitation of motion of the cervical spine. Under this Code, severe limitation of motion of the cervical spine warrants an evaluation rating of 30 percent, moderate limitation warrants a 20 percent rating, and slight limitation warrants a 10 percent rating. The veteran is also currently rated under 38 C.F.R. § 4.71a, Codes 5293- 5291, intervertebral disc syndrome with limitation of motion of the dorsal spine. Under this Code, severe limitation of motion of the dorsal spine warrants an evaluation rating of 10 percent, moderate limitation warrants a 10 percent rating, and slight limitation warrants a noncompensable rating. The veteran is also currently rated under 38 C.F.R. § 4.71a, Code 5293-5292, intervertebral disc syndrome with limitation of motion of the lumbar spine. Under this Code, a severe limitation of motion of the lumbar spine warrants an evaluation rating of 40 percent, a moderate limitation warrants a 20 percent rating, and a slight limitation warrants a 10 percent rating. The veteran is also currently rated under 38 C.F.R. § 4.124a, Code 8515, paralysis of the median nerve. Under this Code, complete paralysis of the median nerve of the minor upper extremity warrants an evaluation rating of 60 percent, severe paralysis warrants a 40 percent rating, moderate paralysis warrants a 20 percent rating, and mild paralysis warrants a 10 percent rating. The evaluation of the same disability under various diagnoses is to be avoided. Disability from injuries to the muscles, nerves, and joints of an extremity may overlap to a great extent, so that special rules are included in the appropriate bodily system for their evaluation. Dyspnea, tachycardia, nervousness, fatigability, etc., may result from many causes. Evaluations of the same manifestation under different diagnoses are to be avoided. 38 C.F.R. § 4.14. The record contains no clinical findings concerning any limitation of motion of the veteran's spine. The record contains no medical evaluation applicable to the rating criteria specific to paralysis of the sciatic nerve. The record contains no differentiation between the cervical, thoracic, and lumbar portion of the spine as to each minor joint groups nexus to the paresthesia in the veteran's left arm and left leg. The record does not clarify the reason the veteran was "laid off" by his employer, nor contain any other indication that the veteran has sought employment, but has been unable to obtain it due to his disabilities. The record does not contain a medical opinion as to the extent of functional and industrial impairment resulting from his disabilities. See Gary v. Brown, No. 92-1483 (U.S. Vet. App. Dec. 14, 1994). When, during the course of review the Board determines that further evidence or clarification of the evidence or correction of a procedural defect is essential for a proper appellate decision, the Board shall remand the case to the agency of original jurisdiction, specifying the action to be undertaken. 38 C.F.R. § 19.9. 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). In order to fulfill its statutory duty to assist the veteran and adequately develop his claim, the case is REMANDED to the RO for the following actions: 1. The RO should request that the veteran provide the names and addresses of all health care providers who have treated him for any disabilities, as well as the approximate dates of such treatment. Then, after obtaining any necessary authorization from the veteran, the RO should request copies of those treatment records not already of record. The requested records should include any specific diagnoses and clinical findings. 2. The RO should arrange for a VA general medical examination of the veteran in order to evaluate the extent of any current disabilities. The claims folder, containing the requested medical records, should be made available to the examining physician for review prior to the examination. The RO should request the examiner to review the entire record and provide a written opinion as to the extent of the veteran's disabilities and their impact on the veteran's ability to work. All applicable range of motion studies should be completed and entered in the record. All testing deemed necessary should be completed. 3. The veteran should be afforded a VA social and industrial survey to assess his employment history and current day-to-day functioning. The VA social worker should contact his prior employer, United Circuits, in Dracot, Massachusetts, to ascertain the circumstances surrounding his being "laid off" from his electronics job in 1991. A written copy of the report should be associated with the claims folder. 4. The RO should readjudicate the claim for a VA nonservice-connected disability pension in the light of all the evidence, including that obtained pursuant to the requested development, and the controlling precedent opinions from the Court, as noted above. The RO should identify each chronic disability shown by all the medical evidence of record, and it should assign a percentage rating for each disability, citing applicable diagnostic codes from the VA rating schedule. The rating decision should also apply the two alternate tests, "average person" (objective) and "unemployability" (subjective), for a permanent and total disability rating for pension purposes, noting the cited Court case law. Thereafter, if the rating decision remains adverse and the veteran continues to disagree with the decision, the RO should issue a Supplemental Statement of the Case and provide the veteran an opportunity to respond. The RO should then return the case to the Board for further consideration. In taking this action, the Board implies no conclusion, either legal or factual, as to any ultimate outcome warranted. No action is required of the veteran until he is notified by the RO. J. F. GOUGH 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) (1993).