BVA9505631 DOCKET NO. 91-24 354 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a back disability. 2. Entitlement to an increased evaluation for postoperative residuals of a fracture of the right ankle, currently evaluated as 10 percent disabling. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD John J. Crowley, Associate Counsel INTRODUCTION The veteran served on active duty from June 1965 to May 1967. This matter is currently before the Board of Veterans' Appeals (Board) on appeal from December 1990 and March 1992 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In October 1991 and October 1992, the Board remanded the case to the RO for additional development. REMAND The veteran contends that her back disability is the result of fall in service which caused her service-connected right ankle disability. It is also contended that her back disability was injured at the same time she sustained injury to her service- connected right ankle disability, and that both conditions make it impossible for her to maintain employment at this time. In October 1992, the Board, after determining that the veteran's claims were well grounded within the meaning of 38 U.S.C.A. § 5107 (West 1991), remanded the case to obtain additional evidence. The Board requested that a VA examiner give a "fully reasoned opinion on the etiology of any back disorder found, including any causal relationship between such a disorder and the veteran's service-connected right ankle disorder." The Board also requested that the examiner's opinion reflect specific consideration of previous statements from medical professionals, cited by the Board, which indicated a possible association between the veteran's back disability and her service-connected right ankle disability. In VA examinations, performed in October 1993 and March 1994, the examiner failed to give an opinion as to the etiology of the veteran's back disability, as requested. Further, the examiner failed to review pertinent medical evidence, inculding MRI studies performed on the veteran's back and right ankle in September and December 1993. The VA examiner had specifically requested an MRI study be performed on the veteran's back during the October 1993 examination. Moreover, the examiner failed to refer to the previous medical opinions cited by the Board in the October 1992 remand. It is also unclear if the examiner reviewed the veteran's claims folder, the pertinent medical history, or the October 1992 Board remand. In January 1995, the veteran's representative strongly urged that the case be remanded again in order to obtain the medical opinions requested previously by the Board in its October 1992 remand. The recent VA examinations do not contain the opinions requested of by the Board in October 1992, nor did the examiner incorporate the results of pertinent medical evidence into his assessment of the veteran's disabilities. In view of these facts, the Board must conclude that the October 1993 and March 1994 VA examinations are inadequate for rating purposes and, accordingly, the Board has no recourse except to return the case for a further examination. 38 C.F.R. §§ 4.1, 4.2 (1994). Where the record before the Board is inadequate to render a fully informed decision and clarification of the evidence is essential for a proper appellate decision, the Board must remand the case, specifying the action to be undertaken. 38 C.F.R. § 19.9 (1994). Since the record before the Board is inadequate to render a fully informed decision, a remand to the RO is required in order to fulfill its statutory duty to assist the appellant to develop the facts pertinent to the claim. Ascherl v. Brown, 4 Vet.App. 371, 377 (1993). In view of the state of the record, the case is REMANDED following action: 1. The veteran should be requested to complete and return an up-to-date employment information statement (VA Form 21-8940). 2. The veteran should be afforded a VA social and industrial survey to assess her employment history and to ascertain specifically the effect her service- connected disability has on her employment status and day-to-day functioning. Interviews with the veteran's neighbors and disinterested acquaintances should be accomplished, if possible, concerning her daily activities. Specific reference should be made to all of the veteran's service-and nonservice-connected disabilities and the effect that each has on her ability to work. A written copy of the VA social worker's report should be associated with the claims folder. 3. The veteran should be afforded a VA orthopedic examination by an examiner who has not examined the veteran in the past in order to determine the current severity of her back and right ankle disabilities. The claims folder should be provided to the examiner in conjunction with the examination. All necessary tests should be performed, including X-ray studies. All excursions of movement should be specifically recorded in numbers of degrees and all findings should be expressed in comparison to stated normal ranges of motion. All positive findings, including mechanical blocking, hyperextension, muscle injury, swelling, atrophy, instability and/or crepitation, should be described. Any functional impairment attributable to the veteran's back and right ankle disability should each be described, to include a full description of the effects that each has upon her ordinary activity and whether it is more likely than not that the veteran's service-connected right ankle disability caused or contributed to any back disability found to be present. The examiner should also indicate the effects, if any, that a ganglion disorder in the veteran's right ankle or shortening of her left leg has on her service-connected right ankle disability, and if any such condition found to exist is related to her service- connected right ankle disability. Further, the right ankle should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing situations. The examiner also should note any objective findings indicative of painful motion, such as facial expression, wincing on pressure or manipulation, etc., and include an assessment of the degree to which painful motion impacts on the veteran's ability to function with regard to each disability. The examiner should specifically consider the January 1988 statement of the veteran's chiropractor and the opinions of the VA examiner in October 1988 and December 1989. 4. The RO should review the VA examiner's report and determine if the examination meets the requirements of the Board remand. If not, the case should be returned to the VA examiner with appropriate instructions. 5. Thereafter, the RO should review the veteran's claims as stated on the title page of this decision. The rating decision should reflect that consideration was given to the provisions of 38 C.F.R. §§ 3.321, 4.40, 4.45 (1994). If the benefits sought on appeal are not granted to the veteran's satisfaction, the RO should issue a supplemental statement of the case, and she and her representative should be provided an opportunity to respond. The case should then be returned to the Board for further appellate consideration, if otherwise in order. 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 she 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) (1994).