BVA9505333 DOCKET NO. 92-19 189 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to an increased evaluation for bronchiectasis, bilateral, with left lower lobectomy, right middle lobectomy and segmental resection of the right lower lobe, currently rated as 60 percent disabling. 2. Entitlement to a total disability rating on the basis of individual unemployability. REPRESENTATION Appellant represented by: Duncan Lott, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Michael A. Pappas, Associate Counsel INTRODUCTION The veteran served on active duty from November 1954 to July 1955. This case initially came before the Board of Veterans' Appeals (the Board) on appeal from a February 1991 rating decision of the Department of Veterans Affairs (VA) Jackson, Mississippi, Regional Office (RO). The appealed decision denied the veteran's claims of entitlement to evaluation in excess of 60 percent for bronchiectasis, bilateral, with left lower lobectomy, right middle lobectomy and segmental resection of the right lower lobe, and his claim of entitlement to a total disability rating on the basis of individual unemployability. The notice of disagreement for this action was received in August 1991. A statement of the case was issued in November 1991. The substantive appeal was received in December 1991. The appeal was docketed at the Board in October 1992. On August 31, 1993, the Board entered a decision denying a rating in excess of the 60 percent evaluation for bronchiectasis, bilateral, with left lower lobectomy, right middle lobectomy and segmental resection of the right lower lobe, and denying the veteran's claim of entitlement to a total disability rating on the basis of individual unemployability. The veteran appealed that decision to the United States Court of Veterans Appeals (the Court). The veteran was represented before the Court by Duncan Lott, Attorney at Law, who filed a brief in the appeal on March 30, 1994. The Secretary of Veterans Affairs (the Secretary) filed a brief in the appeal on July 13, 1994. In November 1994, the appellant and the Secretary filed a Joint Motion for Remand, requesting that the Court vacate the Board's August 31, 1993, decision and remand the case for action as set out in the Secretary's brief, filed with the Court on July 13, 1994. Additionally, it was requested that the appellant be allowed to submit additional evidence and argument in the case, including medical evidence. By Order entered on November 15, 1994, the Court granted the Joint Motion for Remand, vacated the Board's August 1993 decision, and remanded the case for action consistent with the Secretary's brief. [citation redacted]. REMAND The VA has a duty to assist the veteran in the development of facts pertinent to his claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.103(a) (1994). Ample guidance to that end was offered in the Secretary's brief of July 13, 1994. It was noted therein that the medical evidence in the instant case was not sufficient to determine the degree of disability the veteran has experienced due to his service-connected bronchiectasis and the extent to which it affects his ability to secure and follow a substantially gainful occupation. More specifically, the brief stated that the VA medical examinations were incomplete and the private medical evidence of record was not sufficiently detailed to form the basis of an accurate evaluation of the veteran's disability. It was pointed out that findings relative to the regulatory criteria should have been made. It was emphasized that accurate and fully descriptive medical examinations were required, with emphasis upon the limitation of activity imposed by the disabling condition. The brief specified that a thorough and contemporaneous medical evaluation of the appellant's service-connected disorder be undertaken. Particular reference was made to VA Physician's Guide for Disability Evaluation Examinations, chapter 5. With respect to the veteran's claim for a total disability rating based on individual unemployability, it was stated that the examining physician should make specific findings as to the effect of the veteran's bronchiectasis in regard to his ability to pursue a substantially gainful occupation. Finally, it was pointed out in the Secretary's brief that the VA has been placed on notice that the veteran is receipt of Social Security Administration disability benefits. Accordingly, the VA now has a duty to obtain the veteran's records. In that regard, the Board notes that in February 1995 the veteran's attorney submitted additional private medical records to the Board. Contained within those medical records is a Notice of Award from the Social Security Administration, dated in September 1989. The information contained in that Notice should be helpful in obtaining the purported evidence. Under the aforementioned circumstances, the Board finds it necessary that the case be remanded to the RO for the following actions: 1. The veteran should be contacted through his attorney and asked to identify or submit any additional evidence or argument, particularly medical evidence, that is relevant to the issue on appeal. Any evidence identified should be obtained by the RO. Also, the RO (with the veteran's consent obtained through his attorney) should request copies of (a) any medical records from Baptist Memorial Hospital- Boonesville subsequent to February 14, 1995, and (b) any recent office treatment records from Dwight Johnson, M.D. 2. The veteran should be asked through his attorney to submit appropriate authorization for the release of his social security disability claim records to the VA. When the appropriate authorization has been received from the veteran, the RO should request from the Social Security Administration copies of the documents contained in the veteran's Social Security Claims file, number [redacted]. These records should include copies of all medical records and other evidence relied upon in awarding the veteran benefits, along with any decisions or other documents created by Social Security in evaluating the veteran's claim for benefits. Any material obtained should be associated with the veteran's claims folder. 3. When the above development has been completed to the extent possible, the veteran should be afforded a comprehensive, special VA examination by a pulmonary specialist (board certified, if possible) to determine the manifestations and the extent of his service-connected post- operative bronchiectasis. All indicated diagnostic studies, including X-rays and pulmonary function tests, should be performed. The veteran's weight and blood count are necessary in order to determine whether he meets the schedular criteria for an increased rating. The examining physician should follow and report the findings of the examination in compliance with provisions of the VA Physician's Guide for Disability Evaluation Examinations, chapter five. If any additional studies or examinations are recommended during the course of the pulmonary examination or any testing, the recommended procedures must be accomplished. The significance of all test results and examination findings should be explained in terms of their likely impact on the veteran's ability to function under the ordinary conditions of daily life, including employment. In that regard, the veteran has multiple nonservice-connected disabilities, is a college graduate and has employment experience as a teacher and agriculturist. The veteran's claims folder and a separate copy of this remand must be made available to the examiner prior to the examination. 3. Thereafter, the RO should review the case and ensure that all requested development has been completed and that the examination report addresses the matters outlined above. The RO should then readjudicate the veteran's claims for an increased evaluation for bronchiectasis and a total disability rating based on individual unemployability. All of the evidence of record, including all documents submitted by the veteran or his attorney before or after the case was last before the Board, should be considered. The RO should also consider and discuss the applicability of 38 C.F.R. §§ 3.321 and 4.7 (1994) and the benefit-of-the- doubt rule as applied to the facts of this case. If the issues on appeal remain denied, the veteran and his attorney should be provided copies of a supplemental statement of the case reflecting the evidence and addressing the appropriate laws and regulations and reasons and bases of the decision. In particular, the import and persuasiveness of all of the evidence, and the probative weight or credibility of the veteran's testimony, should be addressed. After the veteran and his attorney have had an opportunity to respond, the case should be returned to the Board. The Board intimates no opinion, legal or factual, as to the determination warranted in this case by reason of this remand. No action by the veteran is required until he is so notified. JANE E. SHARP 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).