BVA9503803 DOCKET NO. 93-18 398 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to an increased evaluation for post-operative residuals of lumbar disc disease, currently evaluated as 40 percent disabling. 2. Entitlement to a total rating for compensation purposes based on individual unemployability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD S. D. Regan, Associate Counsel REMAND The veteran had active service from July 1961 to August 1981. This matter came before the Board of Veterans' Appeals (hereinafter "the Board") on appeal from a September 1992 rating decision of the Columbia, South Carolina Regional Office (hereinafter "the RO") which, in pertinent part, confirmed and continued a 40 percent disability evaluation for the veteran's post-operative residuals of lumbar disc disease and denied entitlement to a total rating for compensation purposes based on individual unemployability. The veteran has been represented throughout this appeal by Veterans of Foreign Wars of the United States. The veteran asserts on appeal that the RO erred in denying an increased evaluation for his post-operative residuals of lumbar disc disease and in denying entitlement to a total rating for compensation purposes based on individual unemployability. The accredited representative has requested that this case be remanded in order for the veteran to be afforded an additional Department of Veterans Affairs (hereinafter "VA") examination. In reviewing the record, the Board notes that the veteran was last afforded a VA orthopedic examination in July 1992. The examiner reported, as to limitation of motion, that forward flexion was limited to 60 degrees, extension was 0 degrees and that lateral flexion was 20 degrees to the left and 10 degrees to the right. The examiner observed that the veteran's musculature was normal and that he had no radicular symptoms other than lateral thigh paresthesias and left lateral leg paresthesias. It was noted that the veteran was somewhat incapacitated. A later October 1992 VA treatment record noted flexion of 80 degrees, extension of 20 degrees and lateral flexion of 15 degrees both right and left. An October 1992 statement from a VA physician related that the veteran would have difficulty in achieving full time work with which he could cope adequately. The Board also observes that a prior April 1992 treatment record from James W. Faulk, M.D. noted flexion of 70 degrees, extension of 10 degrees and reported that the veteran had symmetrical ankle jerks and patellar tendon jerks, but that they were essentially not present at both levels. Further, a February 1989 statement from W. Baumgaertel, M.D., related that the veteran was totally disabled due to an injury to his back. Given the nature of the veteran's contentions and the contradictory evidentiary record, the Board concludes that an additional VA examination which includes both orthopedic and neurological evaluations would be helpful in resolving the issues raised by the instant appeal. We also note that the United States Court of Veterans Appeals (COVA) has indicated that in total rating cases, a VA examining physician should generally adress the extent of functional and industrial impairment from the veteran's service-connected disabilities. Gary v. Brown, No. 92-1483 (U.S. Vet.App. Dec. 14, 1994). Further, the veteran is apparently receiving disability compensation from the Social Security Administration as indicated by a November 1986 Award Certificate. The documentation supporting such award is not of record. The Board believes that these records could be helpful to a determination and should be obtained prior to our resolution of the issues on appeal. Additionally, the Board observes that a July 1992 program action report, apparently related to the veteran's vocational rehabilitation, noted that the veteran reported that his doctors were against any activities leading to work and that he was nearly 100 percent disabled. It was also observed that it could not be seen how employment as a computer operator would cause the veteran physical injury unless he was in constant pain. This information was supposed to be forwarded to VA vocational rehabilitation. The Board observes that the veteran's VA vocational rehabilitation file has neither been requested nor incorporated into the record. In light of the VA's duty to assist the veteran in the proper development of his claim as mandated by the provisions of 38 U.S.C.A. § 5107(b) (West 1991) and as interpreted by the United States Court of Veterans Appeals (hereinafter "the Court") in Littke v. Derwinski, 1 Vet.App. 90, 92-93 (1990), this case is REMANDED for the following action: 1. The RO should contact the Social Security Administration and request that it provide any medical records developed in association with an award of disability benefits. Upon receipt of the requested information, it should be incorporated into the record. 2. The RO should then obtain the veteran's VA vocational rehabilitation file for incorporation into the record. 3. The RO should schedule the veteran for a VA examination which includes both orthopedic and neurological evaluations in order to determine the present nature and severity of his service-connected lumbar spine disorder. This study should be conducted in accordance with the Physician's Guide for Disability Evaluation Examinations. All indicated tests and studies should be accomplished and the findings then reported in detail. The claims folder should be made available to the examiners for review prior to the examination and the examiners should express an opinion as to the extent of functional and industrial impairment associated with the veteran's back disability. When the requested action has been completed, and if his claim continues to be denied, the veteran should be afforded a reasonable period of time in which to respond to a supplemental statement of the case. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration if appropriate. The veteran need not take any action unless he is further informed. The purpose of this REMAND is to allow for further development of the record. No inference should be drawn from it regarding the final disposition of the veteran's claim. E. W. SEERY Member, Board of Veterans' Appeals (CONTINUED ON NEXT PAGE) 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).