BVA9500071 DOCKET NO. 89-45 114 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to an increased rating for postoperative myxopapillary ependymoma of spinal canal with syringosubarachnoid shunt and limitation of motion of lumbar spine, currently rated 20 percent disabling. 2. Entitlement to a total disability rating for compensation due to individual unemployability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant, C. Z. ATTORNEY FOR THE BOARD P. B. Werdal, Associate Counsel INTRODUCTION The veteran served on active duty from 1977 to 1988. This matter came before the Board of Veterans' Appeals (Board) of the Department of Veterans Affairs (VA) on appeal from a rating decision dated July 15, 1988, from the Los Angeles, California, Regional Office (RO), rating the veteran's service-connected postoperative myxopapillary ependymoma of spinal canal with syringosubarachnoid shunt and limitation of motion of lumbar spine 10 percent disabling. The notice of disagreement was received in September 1988. The statement of the case was sent to the veteran in December 1988. The substantive appeal was received in February 1989. The veteran's claim for a total rating due to individual unemployability was denied in a decision dated March 21, 1989. The notice of disagreement regarding that claim was dated in November 1989. The Board remanded that claim in a decision dated in June 1990. A statement of the case addressing that claim was sent to the veteran in January 1991. A substantive appeal was received in September 1991. REMAND The veteran claims he is unable to obtain and retain substantially gainful employment as the result of his various service-connected disabilities. At his hearing a friend for whom the veteran performs some part-time work stated that he had several occasions to employ the veteran but the veteran was unable to perform the work because of his service-connected disabilities. However, there is no medical opinion of record regarding whether and to what extent the veteran's service- connected disabilities impair his employability. The veteran testified in his March 1994 hearing that he suffers a psychiatric disability he attributes to his service-connected disabilities. However, to date that claim has not been developed and adjudicated. Furthermore, the Board observes that during the pendency of the claims currently in appellate status the RO proposed to reduce, then did reduce, the disability ratings assigned to the veteran's service-connected paraparesis of the left and right lower extremities. The veteran expressed his disagreement with that decision in January 1994, but to date has not received a statement of the case addressing his claim that the ratings for those disabilities be restored to 40 percent. The Board notes that a document labeled "2-Way Memo" with a reply date of February 17, 1993, reflects that the veteran underwent vocational rehabilitation evaluation and counseling in October 1990, and in February 1992 further action was taken by vocational rehabilitation personnel. However, the veteran's Chapter 31 file is not before the Board at this time. The veteran testified at page 3 of his March 1994 hearing transcript that he had a claim for Social Security Administration disability benefits pending. Although a determination by that agency regarding employability is not binding on VA, the information contained in that agency's decision and the evidence relied upon by that agency in arriving at its decision is relevant evidence and, just as with any other relevant evidence, an attempt should be made to obtain and associate it with the claims folder. Waddell v. Brown, 5 Vet.App. 454 (1993). The VA has a duty to assist in the nonadversarial process of claims adjudication. 38 U.S.C.A. § 5107 (West 1991); 38 C.F.R. § 3.103(a) (1993). That duty to assist includes developing claims reasonably raised from a liberal interpretation of documents of record. Mingo v. Derwinski, 2 Vet.App. 51, 54 (1992) (citing EF v. Derwinski, 1 Vet.App. 324, 326 (1991), and Myers v. Derwinski, 1 Vet.App. 127, 129 (1991)). The duty to assist includes obtaining copies of medical records. Littke v. Derwinski, 1 Vet.App. 90 (1990). That duty to assist also includes providing the veteran with the opportunity for a VA examination when necessary. Hyder v. Derwinski, 1 Vet.App. 221 (1991). Under the circumstances of this case, additional development is necessary. Accordingly, this matter is REMANDED for the following action: 1. The veteran's Chapter 31 folder, including but not limited to his vocational/rehabilitation/counseling file, should be obtained and associated with the claims folder, and reviewed by the RO for information regarding the veteran's claims. 2. The RO should associate with the claims folder copies of all treatment records regarding all treatment, either inpatient or outpatient, administered to the veteran at the VA medical facility in Hines, Illinois, since April 1992. 3. The RO should contact the veteran and his representative and ascertain whether the veteran has received a decision on his claim for disability benefits from the Social Security Administration. Then, if appropriate, obtain copies of that agency's decision and copies of the evidence upon which that agency relied in making its determination. 4. The veteran should be provided a statement of the case addressing his claims for restoration of the 40 percent disability rating for his service-connected paraparesis, right lower extremity, and the 40 percent disability rating for his service-connected paraparesis, left lower extremity, and should be given the opportunity to file a timely substantive appeal addressing those claims. 5. The RO should develop and adjudicate the veteran's claim of service connection for a psychiatric disability secondary to his service-connected disabilities. He should be informed of that decision, and of his appellate and procedural rights in that regard. 6. The veteran should be afforded a VA social and industrial survey to assess his employment history and day-to-day functioning. A written copy of the report should be added to the claims folder. 7. The veteran should be afforded a thorough VA examination for compensation purposes that conforms with the criteria set out in the VA's Physician's Guide for Disability Evaluation Examinations, including all necessary testing and specialist examinations, to identify the symptoms and manifestations of all of the veteran's service-connected disabilities. All findings must be reported in detail, and must include an assessment by the examiner of the extent, if any, to which the veteran's ability to obtain and retain substantially gainful employment is impaired by each disability. 8. The RO should review the veteran's claims for an increased rating for the service-connected postoperative myxopapillary ependymoma of spinal canal with syringosubarachnoid shunt and limitation of motion of lumbar spine, and for a total rating for compensation due to individual unemployability, considering the evidence in the claims folder as well as the evidence in the veteran's Chapter 31 file and 38 C.F.R. § 4.16 (1993). The purpose of this REMAND is to assist the veteran in developing his claim. No action is required of him until further notice. The Board expresses no opinion, either factual or legal, as to the ultimate determination warranted in this case pending completion of the requested action. EUGENE A. O'NEILL 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).