BVA9504426 DOCKET NO. 90-31 488 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities. REPRESENTATION Appellant represented by: William D. Mallard, Jr., Attorney ATTORNEY FOR THE BOARD C. S. Freret, Counsel INTRODUCTION The appellant had active military service from February 1952 to January 1956. This appeal initially came before the Board of Veterans' Appeals (Board) from a January 1990 rating decision by the Department of Veterans Affairs (VA) Atlanta, Georgia, Regional Office (RO), which denied entitlement to an evaluation in excess of 60 percent for residuals of a back injury and denied entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities. In a March 1991 appellate decision, the Board denied the same two issues that were denied in the January 1990 rating decision. The appellant appealed the Board's decision to the United States Court of Veterans Appeals (Court). In an October 22, 1992, decision, the Court affirmed the Board's denial of an evaluation in excess of 60 percent for residuals of a back injury and remanded the issue of entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities to permit the Board to carry out additional development that included associating Social Security Administration (SSA) records with the claims file, having the Board consider the appellant's pain due to his service-connected low back disability as it pertains to his employability, and providing reasons and bases as to how and why it weighed the evidence as it did. Judge Steinberg also ordered the Board to consider the appellant's claim of clear and unmistakable error in a June 1989 appellate decision. The clear and unmistakable error issue was appealed to United States Court of Appeals for the Federal Circuit, which ruled in August 1994 that final decisions by the Board of Veterans' Appeals are not subject to collateral review as to clear and unmistakable error under 38 C.F.R. § 3.105(a) (1994). [citation redacted]. As a result of the decision of the Federal Circuit, the only issue pending before the Board at this time is whether the appellant is entitled to a total disability evaluation based on individual unemployability due to service-connected disabilities. REMAND The appellant argues that his service-connected disabilities, which consist of residuals of a back injury, with lumbosacral strain and low back syndrome, degenerative disc disease with spondylosis at the level of the fifth lumbar vertebra and first sacral segment, rated 60 percent disabling, and residuals of a fracture of the right ankle, rated noncompensable, prevent him from obtaining and maintaining all forms of substantially gainful employment. He points out that he was awarded Social Security Benefits in 1983, effective November 22, 1982, based on the severity of his low back disability. The Board notes that the appellant last underwent a VA orthopedic examination to evaluate his service-connected low back disability in November 1989. There is also no recent evaluation indicating whether or not he has any residuals of the service-connected right ankle fracture that contribute to his claimed unemployability. VA has a duty to assist the appellant in the development of facts pertinent to his claims. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.103(a) (1994). The Court has held that the VA's duty to assist the appellant in obtaining and developing available facts and evidence to support his claim includes obtaining adequate VA medical examinations. Littke v. Derwinski, 1 Vet.App. 90 (1990). Because the most recent examination of the appellant's lower back is more than five years old, the Board believes that it would be appropriate to remand the case for the following actions: 1. The RO should schedule the appellant for examination by an orthopedic specialist in order to determine the severity of the appellant's low back disability and to ascertain whether he has any residuals associate with the right ankle fracture. All indicated special studies, including X-rays and range of motion testing should be performed for each disability, if not medically contraindicated. The examiner should be requested to indicate on the examination report the degree of functional impairment resulting from the appellant's service- connected disabilities, with consideration of the effect of each disability on his ability to work or to seek work. A description of the effects of each disability upon his ordinary activities should also be included in the examiner's report. The examiner should also be requested to present all opinions and findings, and the reasons and bases therefor, in a clear, comprehensive, and legible manner on the examination report. The claims file and a copy of this remand are to be made available to the examiner prior to the examination. 2. The RO should review the examination report to determine if it is adequate for rating purposes and in compliance with this remand. If it is not, it should be returned to the examiner for supplemental action. After the above requested actions have been completed, the RO should review the appellant's claim with regard to the additional evidence obtained and to the award of Social Security benefits. If the benefit sought on appeal remains denied, a supplemental statement of the case should be furnished to the appellant and his representative. They should be afforded a reasonable period of time to respond. Thereafter, the case should be returned to the Board for further appellate consideration. The purpose of this REMAND is to obtain addition medical evidence and to ensure that the appellant is afforded due process of law. No opinion, either legal or factual, is intimated as to the merits of the appellant's claim by this REMAND. He is not required to undertake any additional action until he receives further notification from the VA. JACK W. BLASINGAME 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 so assigned. 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).