BVA9505501 DOCKET NO. 93-09 203 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to an increased evaluation for a low back disability, currently evaluated as 40 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD Robert E. O'Brien, Counsel REMAND The veteran had active service from October 1961 to February 1968. This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 1991 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, which confirmed and continued a 20 percent schedular rating for the veteran's low back disability, classified for rating purposes as "hemilaminectomy, excision, herniated nucleus pulposus L4-5, left." The veteran was accorded an examination by VA in June 1991 and, based on the findings demonstrated on the examination, the schedular rating was increased to 40 percent disabling, effective June 8, 1991, in a rating decision dated in June 1991. There is no medical evidence of record pertaining to the back subsequent to 1991. The United States Court of Veterans Appeals (Court) has held that fulfillment of the Board's duty to assist the veteran includes providing him with a thorough and con- temporaneous medical examination. Littke v. Derwinski, 1 Vet.App. 90, 92 (1990). The Board notes that, in testimony given at the RO hearing in February 1992, the veteran's representative has essentially raised the issue of his entitlement to a total compensation rating based upon unemployability by reason of the severity of his service-connected low back disability. In an August 1992 statement, the veteran complained that his disc disease was bad enough that he was not able to do any work. He stated that he had tried to find work, but had been turned down on several occasions. The issue of the veteran's entitlement to a total compensation rating based on unemployability has not been developed or adjudicated by the RO. The Court has held that the Board must address all issues that have been reasonably raised by the record. EF v. Derwinski, 1 Vet.App. 324 (1991). In Fisher v. Principi, 4 Vet.App. 57 (1993), the Court held that where the disability rating did not entitle the appellant to a total disability rating under 38 C.F.R. § 4.16(a), the rating board must also consider the applicability of 38 C.F.R. § 4.16(b), and that the decision (or non-decision) by the RO whether to refer a case to the Director for extra-schedular consideration under § 4.16(b) is an adjudicative decision subject to review by the Board and the Court. In view of the foregoing and the Board's duty to assist the veteran in the development of facts pertinent to his claim, as mandated by 38 U.S.C.A. § 5107(a) (West 1991), the case is REMANDED to the RO for the following actions: 1. The RO should contact the veteran and request that he provide the names and addresses of all health care providers who have treated him for his low back dis- ability since 1991, specifying the approximate dates of treatment, if possible. Then, after any necessary authorization is obtained from him, the RO should obtain copies of any treatment records identified by him. The RO should also obtain and associate with the claims file copies of any outpatient treatment records pertaining to the veteran at the VA Medical Center in Houston, Texas, from 1991 to the present. 2. The veteran should be provided a VA social and industrial survey, and he should be asked to complete an application for increased compensation based on unem- ployability (VA Form 21-8940). The social worker should set forth in a chronological and comprehensive manner the veteran's educational and employment background and any other information needed to develop a complete picture of his employment prospects and the conditions which limit his employment opportunities. 3. Thereafter, VA orthopedic and neurologic examinations should be arranged to determine the extent and severity of the veteran's low back disability. The examinations should be conducted in accordance with the VA's Physician's Guide for Disability Evaluation Examinations. All necessary tests, to include X-ray studies, should be conducted. The examiners should express opinions as to the impact of the veteran's low back disability on his ability to obtain and maintain gainful employment. The claims folder should be made available to the examiners for review prior to their examinations. 4. Thereafter, the RO should readjudicate the veteran's claims, including the claim that he is unemployable as the result of the service-connected back disability. If the veteran's low back disability does not meet the schedular requirements of 38 C.F.R. § 4.16(a) for assignment of a total rating, the rating decision should reflect consideration of the applicability of 38 C.F.R. §§ 3.321(b)(1) and 4.16(b). If the decision remains adverse to the veteran in any way, he and his representative should be furnished with a supplemental statement of the case. They should then be afforded the applicable time to respond. The case should then be returned to the Board for further consideration, if otherwise in order. By this REMAND, the Board intimates no opinion as to any final outcome warranted. No action is required of the veteran until he is notified by the RO. GARY L. GICK 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 deter- mination. 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 action has been taken in accordance with the Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 303, 108 Stat. 4645, ___ (1994), and 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)