BVA9500477 DOCKET NO. 92-14 209 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to an increased evaluation for a back disorder, currently evaluated as 20 percent disabling. 2. Entitlement to a temporary total evaluation for a period of hospitalization from September to October 1991. 3. Entitlement to a permanent and total disability evaluation for pension purposes. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Michael E. Kilcoyne, Counsel INTRODUCTION The veteran had active military service from September 1950 to September 1953. The record reveals that this appeal arose from adverse decisions by the Pittsburgh, Pennsylvania regional office (RO) and that the claims were previously before the Board. However, in a decision dated in August 1993, the Board Remanded the matter to the RO for further development. CONTENTIONS OF APPELLANT ON APPEAL The veteran essentially contends that her service connected back disability required hospital treatment from September to October 1991 and that therefore, the criteria for the assignment of a temporary total rating during that hospitalization have been met. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that entitlement to a temporary total disability rating pursuant to 38 C.F.R. § 4.29 for a period of hospitalization from September 3, 1991 to October 2, 1991 is warranted. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appeal regarding entitlement to a temporary total disability rating has been obtained by the RO. 2. The veteran's service connected low back syndrome required hospital treatment from September 3, 1991 to October 2, 1991. CONCLUSION OF LAW The criteria for an assignment of a temporary total disability rating for a period of hospitalization from September to October 1991 have been met. 38 U.S.C.A. § 5107 (West 1991); 38 C.F.R. § 4.29 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran's claim for a a temporary total evaluation for a period of hospitalization from September to October 1991 is well grounded. It is plausible. In addition, the Board is satisfied that all relevant facts with respect to this claim have been properly developed. The record contains the outpatient treatment records immediately preceding this hospitalization as well as the hospital records from this period of hospitalization. Accordingly, no further development is required to comply with the provisions of 38 U.S.C.A. § 5107. Under applicable criteria, a total disability rating (100 percent) will be assigned without regard to other provisions of the rating schedule when it is established that a service- connected disability has required hospital treatment in a Department of Veterans Affairs or an approved hospital for a period in excess of 21 days. This increased rating will be effective the first day of continuous hospitalization and will be terminated effective the last day of the month of hospital discharge or effective the last day of the month of termination of treatment or observation for the service-connected disability. 38 C.F.R. § 4.29. A review of the record reveals that the veteran was service connected for low back syndrome and assigned a 20 percent disability evaluation in a rating action dated in October 1971. Since that time and the period of hospitalization at issue, she was hospitalized on seven separate occasions for treatment of her back and for which she was awarded a temporary total disability rating. Otherwise, the 20 percent disability rating has remained in effect. Prior to the September/October 1991 hospitalization, the record shows that the veteran was receiving outpatient treatment through the VA and complaining of back pain. A VA record dated in early August 1991, shows that the veteran had some improvement, but that a hospital admittance was planned for later in August to provide for more intensive therapy. Later that month, it was noted that the veteran was scheduled for admission to rehabilitative service on September 3, 1991 and the record indicates that it was on that date that she was actually admitted for treatment of her low back pain. On a report prepared on the date of her admission, it was noted that she had fallen down some steps onto her back and buttocks a few days earlier, but at the same time, it was noted that the original injury occurred in service. The admission diagnoses included rehabilitation of chronic low-back pain in exacerbation. Initially, the hospital records show that the veteran received bed side hot packs for her back along with medication. Shortly thereafter, additional therapy was begun. This treatment regimen provided the veteran with relief and she began actively performing the scheduled therapy which included exercises, hot packs, phonophoresis, massage and hydrotherapy. At the time of her discharge she was asymptomatic having reached maximum abilities in her modified low-back battery. The principal discharge diagnosis was Rehabilitation for chronic low-back pain, in remission. A VA staff physician certified that the veteran had completed 21 consecutive days of treatment for her service connected disability that required a hospital setting. The record in this case shows that prior to the hospitalization in question, the veteran had been complaining of back pain and was scheduled for hospital admittance for more intensive therapy. Although she apparently fell and injured her back area shortly before she actually was hospitalized, there is no indication in the record that this hospitalization would not have otherwise occurred. Once hospitalized the veteran underwent back therapy for which there is a certification from a VA physician, that a hospital setting was required. Under these circumstances, the Board concludes that the requirements for entitlement to a temporary total rating pursuant to the provisions of 38 C.F.R. § 4.29 have been met. ORDER To the extent that the criteria for an award of a temporary total rating for a period of hospitalization from September to October 1991 have been met, the benefit sought on appeal is granted. REMAND With respect to the veteran's claim for pension, the Board notes that pursuant to 38 U.S.C.A. § 5107, the VA has a duty to assist the veteran in the development of facts pertinent to a claim. This duty requires the conduct of thorough medical examinations, the reports of which furnish a full description of the effects of disability upon the person's ordinary activity. See Littke v. Derwinski, 1 Vet.App. 90 (1991), Schafrath v. Derwinski, 1 Vet.App. 589 (1991). Moreover, when an examination report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for rating purposes. 38 C.F.R. § 4.2. The record in this case reveals that the veteran was hospitalized for an acute asthmatic attack in May 1993 and for acute bronchial asthma in July 1993. During the course of the general medical examination conducted in connection with the current claim, the examiner noted that the veteran complained of frequent episodes of wheezing and shortness of breath occurring approximately every two weeks. Although a pulmonary function test was recommended, it does not appear that it was accomplished. In addition, it does not appear that the RO considered disability that may be attributed to any pulmonary disorder when evaluating the veteran's claim. Because the evidence reveals that the veteran may have a pulmonary disorder which has not been properly evaluated, additional examination is necessary in order to ensure that each disability is fully considered in connection with the veteran's claim. 1. The veteran should be asked to identify the places at which she has received treatment for a pulmonary disorder. After obtaining any appropriate authorization from the veteran, the RO should obtain legible copies of all records of treatment identified. 2. After the preceding development has been accomplished, the veteran should be scheduled for a special pulmonary examination, the purpose of which is to determine the nature and extent of any pulmonary disability present. All indicated tests and studies should be performed to include a pulmonary function test and the examination should be conducted in accordance with the pertinent provisions of the VA Physician's Guide for Disability Evaluation Examinations. The examiner is requested to comment on the limitation on employment caused by any disability noted and state whether the condition is susceptible to improvement through appropriate treatment. The factors upon which the examiner's opinions are based must be set forth and the claims folder must be made available to the examiner prior to the examination. 3. Upon completion of the above, the RO should review the evidence of record and prepare a rating action which lists all the veteran's disabilities and percentage evaluation assigned each disability, to include any pulmonary disability. A decision regarding whether the veteran is considered permanently and totally disabled for pensions purposes should also be entered. If the decision remains adverse to the veteran, she and her representative should be provided with a supplemental statement of the case. This should include citation to appropriate diagnostic codes and discussion of their applicability to the veteran's disabilities. This should also include a discussion regarding the application of the two standards by which a permanent and total disability rating for pension purposes may be assigned. (Average person and unemployability under 38 U.S.C.A. § 1502(a) (West 1991); 38 C.F.R. § § 3.321, 4.15, 4.17 (1993)). The veteran and her representative should then be given an opportunity to respond before the case is returned to the Board for further review. No action is required of the veteran until she is further informed and the matter regarding entitlement to an increased rating for low back syndrome is held in abeyance pending the completion of the development requested by this Remand. 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).