Citation Nr: 0000406 Decision Date: 01/06/00 Archive Date: 01/11/00 DOCKET NO. 98-18 725 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, Puerto Rico THE ISSUE Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities. REPRESENTATION Appellant represented by: Puerto Rico Public Advocate for Veterans Affairs ATTORNEY FOR THE BOARD W. Sampson, Associate Counsel INTRODUCTION The veteran's active military service extended from May 1968 to May 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 1998 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. That rating decision denied entitlement to a total disability evaluation based on individual unemployability. In November 1993, the RO granted a 20 percent increased rating for his service-connected back disorder. He filed a notice of disagreement with only a 20 percent evaluation, and following the issuance of a statement of the case, perfected his appeal with the filing of a timely substantive appeal. In a June 1997 hearing before the RO, the veteran's representative stated, "[w]e understand the condition deems 60 percent." In a September 1997 rating decision, the RO granted a 60 percent evaluation. As this is the maximum evaluation possible under the diagnostic code assigned to the veteran's disability (38 C.F.R. § 4.71a, Diagnostic Code 5293 (1999)), and equals the assessment sought by the veteran on appeal, this is considered a full grant of the benefits sought on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). REMAND The veteran's claim for a total rating based on individual unemployability is "well grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). See Stanton v. Brown, 5 Vet. App. 563, 571 (1993) (where an appellant stated that he could no longer seek or maintain employment, he presented a well- grounded claim for a total disability rating). The veteran's claim is shown to be well grounded; however, the duty to assist has not been fulfilled. 38 U.S.C.A. § 5107(a) (West 1991). In a statement by the veteran dated August 1998, he stated that it was impossible for him to work and "due to this my nervous condition is affecting my situation." The RO treated this as a claim by the veteran that his back condition was aggravating his nonservice connected nervous condition and requested further information from the veteran showing that his back condition created the nervous condition and that there was a link between the two. The veteran did not respond to this request. In the absence of further correspondence from the veteran on this subject, the issue of service connection for a nervous condition secondary to his service-connected back disability was not considered by the RO. The Board believes that the lack of response by the veteran indicates that he does not wish to pursue a claim of secondary service connection, that this issue is not in controversy, and is not before the Board. In the same August 1998 letter, the veteran indicated that his service-connected back disorder was now getting worse. He also requested a VA examination. As his most recent VA examination was in September 1997, the medical evidence may not reflect the current status of his disability. The United States Court of Appeals for Veterans Claims has held that when the medical evidence is inadequate, VA must supplement the record by seeking an advisory opinion or ordering another medical examination. Halstead v. Derwinski, 3 Vet. App. 213 (1992). A VA examination should be scheduled to fully assess the current status of his service-connected back disability. The RO should also schedule the veteran for a social and industrial survey prior to a final determination of his unemployability. Accordingly, to ensure that VA has met its duty to assist the claimant in developing the facts pertinent to the claim and to ensure full compliance with due process requirements, this case is REMANDED for the following: 1. The RO should schedule the veteran for another VA examination of his service- connected back disability. The claims folder and a copy of this remand must be made available to, and reviewed by the examiner prior to the examination. All diagnostic tests and studies deemed necessary by the examiner should be conducted, and all pertinent symptomatology and findings should be reported in detail. The examiner should review the results of any testing prior to completion of the report. The report of examination should be comprehensive and include a detailed account of all manifestations of relevant pathology found to be present. The examiner should provide complete rationale for all conclusions reached. The examiner should specifically be asked to comment on the degree of impairment in the veteran's employability caused by his service- connected back disability. 2. A social and industrial survey should be conducted. His former employer, family members, former co-workers, members of the community and the appellant should be interviewed. Inteview by telephone is acceptable. The purpose of this survey is to obtain information upon which to assess the impact of the appellant's service- connected disabilities on his ability to secure or follow a substantially gainful occupation. 3. Following completion of the above actions, the RO must review the claims folder and ensure that all of the foregoing development has been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. Specific attention is directed to the examination report. If the examination report does not include fully detailed descriptions of pathology and all test reports, special studies or adequate responses to the specific opinions requested, the report must be returned for corrective action. 38 C.F.R. § 4.2 (1999) ("if the [examination] report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes."). 4. After the above development is completed, the RO should readjudicate the veteran's claim for a total disability rating based on individual unemployability due to his service- connected disability or disabilities. The RO should make a determination regarding marginal employment, if applicable. The applicable provisions of 38 C.F.R. §§ 3.321, 3.340, 3.341, and 4.16 (1999) should be considered. Once the foregoing has been accomplished, and if the veteran remains dissatisfied with the outcome of the adjudication of the claim, both the veteran and his representative should be furnished a supplemental statement of the case covering all the pertinent evidence, law and regulatory criteria. They should be afforded a reasonable period of time in which to respond. Thereafter, the case should be returned to the Board for further appellate consideration. The veteran needs to take no action until so informed. The purpose of this REMAND is to assist the veteran. The Board intimates no opinion as to the ultimate outcome of this case. Further adjudication of the question involving a total disability rating based on individual unemployability will be postponed until the remand action is completed. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, (CONTINUED ON NEXT PAGE) directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21- 1, Part IV, paras. 8.44-8.45 and 38.02-38.03. BETTINA S. CALLAWAY Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. 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) (1999).