BVA9500980 DOCKET NO. 93-07 160 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to an increased rating for the residuals of a fracture of the right femur, currently evaluated as 30 percent disabling. 2. Entitlement to an increased rating for disc disease, currently evaluated as 10 percent disabling. 3. Entitlement to service connection for right arm, right shoulder and neck conditions as secondary to the residuals of a fracture of the right femur. 4. Entitlement to a total rating based on individual unemployability due to service-connected disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD Christine E. Puffer, Associate Counsel INTRODUCTION The veteran had active service from May 1946 to September 1947. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 1991 rating decision of the Department of Veterans Affairs (VA) New York, New York, Regional Office (RO) which denied entitlement to the benefits sought on appeal. REMAND The veteran contends that his service-connected residuals of a fracture of the right femur, have adversely affected the entire right side of his body. Specifically, he has averred that the shortening of his right leg and resulting shift in weight distribution have resulted in disability of his right arm, right shoulder and neck. By letter received in January 1993, the veteran requested that he be afforded the opportunity to be examined by an orthopedist in order to establish the severity of his disabilities. The veteran reported that the Social Security Administration had determined that he was unemployable and totally disabled to perform employment in the area in which he was trained. He also indicated that unspecified physicians had also determined that he was unemployable as a result of his disabilities. The veteran underwent several VA examinations in July 1992 in conjunction with the instant appeal. The veteran was diagnosed with chronic capsulitis of the right shoulder and degenerative joint disease of the cervical spine with mild subluxation of C1- 2. In requesting the examination, the RO had specifically solicited an opinion from the examiner as to what relationship, if any, any neck or right shoulder condition observed bore to the veteran's service-connected fracture of the right femur and disc disease. It appears that the examiner misconstrued the RO's request as the examiner instead commented that there was no relationship between the veteran's neck condition and chronic capsulitis of the right shoulder. No opinion responding to the RO's request was offered. The duty to assist includes obtaining additional examinations when a prior report is found to be inadequate. See Perez v. Derwinski, 2 Vet.App. 562 (1992). In light of the examiner's failure to appropriately respond to the RO's noted inquiry, the Board finds that a remand is necessary in order to fulfill the Board's duty to assist the veteran in the development of his claim. As noted, the veteran has requested the same, albeit for different reasons. In arguing his claim, the veteran has indicated on several occasions that unnamed physicians had determined that he is unemployable. However, the sole record from a treating physician associated with the record is from David Gutierrez, D.P.M., A.A.C.F.S., of July 1992, and was provided by the veteran. At the time of a November 1990 VA examination, the veteran reported receiving treatment for his right foot from Dr. Harvey Strauss since August 1990. At a July 1991 VA examination he reported receipt of treatment from Dr. SoSale Jayaram, Dr. Gutierrez, and Dr. Alpert of the VA. However, none of the treatment records from any of these examiners have been obtained. The duty to assist includes the obtaining of all relevant medical records, especially those specifically cited by the veteran. Dyess v. Derwinski, 1 Vet.App. 90, 92 (1991); see Leap v. Derwinski, 2 Vet.App. 404, 405 (1992). It is noted that these records would also serve to assist the VA examiner. The sole document relating to the veteran's receipt of benefits from the Social Security Administration is a March 1991 notice of award that offers no specific information regarding the benefit being granted. As Social Security Administration findings regarding awards of disability benefits are pertinent to a determination of the veteran's ability to engage in substantially gainful employment, these records should be requested. See Martin v. Brown, 4 Vet.App. 136, 140 (1993). As additional development of the evidence is necessary, this case is REMANDED to the RO for the following action: 1. The RO should contact the New York VAMC and obtain copies of all records of treatment, including both outpatient and hospitalizations, accorded the veteran since 1990. Special efforts should be made to obtain records of treatment by Dr. Alpert. 2. After obtaining any necessary authorization, the RO should obtain copies of all medical records evidencing both outpatient and hospitalization treatment of the veteran from August 1990 to the present time from Dr. Harvey Strauss. 3. After obtaining any necessary authorization, the RO should obtain copies of all medical records evidencing both outpatient and hospitalization treatment of the veteran from 1990 to the present date from Dr. Sosale Jayaram. 4. After obtaining any necessary authorization, the RO should obtain copies of all medical records evidencing both outpatient and hospitalization treatment of the veteran from 1990 to the present from Dr. David Gutierrez. 5. The RO should request from the Social Security Administration a copy of the decision and all supporting evidence regarding its award of disability benefits in March 1991 to the veteran. 6. Upon completion of the development requested above, the veteran should be afforded a special VA orthopedic examination to determine the nature and severity of any current neck, cervical spine and/or right shoulder and arm condition(s). Any special diagnostic studies deemed necessary by the examiner should be performed. The examiner is specifically requested to offer an opinion as to: 1) the degree of probability, if any, of a causal relationship between any present neck or cervical spine condition and the veteran's service-connected residuals of a fracture of the right femur and/or disc disease; 2) the degree of probability, if any, of a causal relationship between any present right shoulder or arm condition and the veteran's service-connected residuals of a fracture of the right femur and/or disc disease; and 3) the degree of impairment of the veteran to perform substantially gainful employment due solely to his service-connected residuals of a fracture of the right femur and disc disease. The veteran's claims folder must be made available to the examiner for review in connection with the examination. The rationale for all opinions expressed should be explained. When the development requested in the above paragraphs has been completed, the case should again be reviewed on the basis of the additional evidence. Unless the veteran is satisfied with any favorable action and withdraws his appeal, a supplemental statement of the case should be furnished the appellant and his representative. They should then be afforded the appropriate period of time to respond. Thereafter, the case should be returned to the Board for further consideration. The purpose of this REMAND is to assist the veteran in the development of his claim, and the Board does not intimate any opinion as to the merits of this case, either favorable or unfavorable, at this time. No action is required of the veteran until he is notified. WARREN W. RICE, 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) (1993).