Citation Nr: 0003265 Decision Date: 02/09/00 Archive Date: 02/15/00 DOCKET NO. 97-00 089 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to a total rating for compensation purposes based on individual unemployability by reason of service- connected disabilities. 2. Entitlement to secondary service connection for a psychiatric disorder. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and Daughter ATTORNEY FOR THE BOARD M. Hannan, Counsel INTRODUCTION The appellant had active service in the Army from December 1943 to October 1945. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a November 1996 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama which denied the appellant's claim of entitlement to a total rating based on individual unemployability. The Board notes that the appellant submitted a Notice of Disagreement (NOD) in December 1996; the Statement of the Case (SOC) was issued a year later, in December 1997. That same month, the appellant submitted a written statement in which he stated that he wished to continue his appeal; he further stated that his hearing loss was the main reason that he was unable to work. This written statement constitutes a timely Appeal to the Board and therefore, the appellant's appeal as to this issue was perfected in December 1997. In October 1999, a Travel Board hearing was held in Montgomery before Michael D. Lyon, who is the Board Member making this decision and who was designated by the Chairman to conduct that hearing, pursuant to 38 U.S.C.A. § 7102. A transcript of the hearing testimony is in the claims file. Review of the evidence of record indicates that the appellant has raised an informal claim of entitlement to additional compensation to a veteran based on his spouse's need for regular aid and attendance. The matter is referred to the RO for appropriate action. REMAND Service connection may be established for disability resulting from injury or disease incurred in or aggravated by military service. 38 U.S.C.A. §§ 1110, 1131. A disability which is proximately due to or the result of a service- connected disease or injury (including the treatment therefore) shall be service connected. 38 C.F.R. § 3.310. Furthermore, the United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (hereinafter Court) has held that the term "disability" as used in 38 U.S.C.A. §§ 1110, 1131 and thus, 38 C.F.R. § 3.310(a) should refer to "any additional impairment of earning capacity resulting from an already service-connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition." Allen v. Brown, 7 Vet. App. 439, 448 (1995). Total disability ratings for compensation may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 4.16. This Army veteran is almost 80 years of age. He has a sixth grade formal education, as reflected by his DD 214 and documents relating to his November 1945 Application for Course of Training (a meat cutting course he apparently never finished). The appellant testified at his October 1999 Travel Board hearing that he completed a two-year trade school course in mechanics. He has not worked since 1980, and his past employment post-service has included jobs as a farm worker and a mechanic. Initially, the Board observes that the claims file reflects that there are outstanding records of medical treatment of the appellant that should be requested, obtained, and associated with his claims file. Although the record reflects VA medical treatment, VA outpatient treatment records reflecting treatment subsequent to October 1997 have not been associated with the claims file. Records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). The RO must obtain these treatment records, especially since they might contain diagnostic studies and other conclusions that might be determinative in the disposition of this claim. Moreover, in a written statement submitted in March 1997, the appellant asserted an informal claim of entitlement to service connection for a psychiatric disability secondary to his service-connected hearing loss disability. While the RO did issue a rating decision in April 1998 in which entitlement to service connection for shingles secondary to the hearing loss disability was denied, the psychiatric claim has not been considered by the RO; such fact would normally warrant referral of said issue to the RO. Here, however, the Board notes that resolution of the secondary service connection claim could well impact upon the Board's consideration of the total rating issue. Indeed, if the appellant were granted a combined 100 schedular evaluation, the total rating issue will be rendered moot. See Green v. West, 11 Vet. App. 472, 476 (1998), (citing Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994)). In addition, the Court has held that when aggravation of a non-service-connected condition is proximately due to or the result of a service-connected condition, a veteran shall be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen v. Brown, 7 Vet. App. 439 (1995). The Board notes that the appellant was diagnosed with anxiety and prescribed anti-anxiety medication by a VA doctor in March 1997, and that service connection for bilateral hearing loss has been granted. Judicial interpretation of the matter of secondary service connection as embodied in 38 C.F.R. § 3.310 requires consideration of whether or not a service-connected disability either causes or aggravates another condition. See Allen v. Brown, id. There is no indication that the RO considered any application of the Allen decision to the question of whether or not any portion of the appellant's diagnosed anxiety is part of, or related to, the bilateral hearing loss. Adjudication on this basis is therefore indicated. Further, the Court has held that issues which are inferred, intertwined, or expressly raised from documents in the file should be developed for timely appellate review. See Harris v. Derwinski, 1 Vet. App. 180 (1991); EF v. Derwinski, 1 Vet. App. 324 (1991); Myers v. Derwinski, 1 Vet. App. 127 (1991); Akles v. Derwinski, 1 Vet. App. 118 (1991). In this case, the appellant has attempted to raise this issue, and the RO attempted to be responsive, but the matter needs to be addressed in view of the Court holdings, the posture of the instant claim, and the evidence of record. The most recent rating action that listed each of the appellant's disabilities is dated in April 1998. The service-connected disabilities rated thus far by the RO are bilateral hearing loss (70%) and chronic otitis media (10%), for a combined evaluation of 70%. The Board notes that regulations pertaining to diseases of the ears were revised in June 1998. In addition, review of the medical evidence of record indicates that the appellant currently suffers from a thyroid condition, anxiety and a cardiovascular disorder, being status post quadruple bypass surgery. Follow-up must be made concerning the severity, extent or current status of those conditions and any other medical problem that is not currently rated. The Board further notes that no social and industrial survey has been performed. See Gary v. Brown, 7 Vet. App. 229 (1994). Finally, the Board notes that the appellant last underwent VA audiometric evaluation in March 1997; such an examination will be requested upon remand. This will also permit evaluation of the appellant's disability on both a schedular and an extraschedular basis, without prejudice to the appellant. See Floyd v. Brown, 9 Vet. App. 88 (1996); Bernard v. Brown, 4 Vet. App. 384 (1993). The medical evidence of record is insufficient for the Board to render a decision on the degree of social and industrial inadaptability that can be attributed to the service- connected disability, as opposed to other non-service- connected conditions. The VA has a duty to assist the appellant in developing facts pertinent to a well-grounded claim. 38 U.S.C.A. § 5107(a); 38 C.F.R. § 3.159. The considerations described above require a search for relevant medical records and further investigation by medical professionals, inasmuch as the Board is prohibited from substituting its own unsubstantiated medical opinions. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). In addition, the duty to assist includes obtaining medical records and examinations where indicated by the facts and circumstances of an individual case. See Murphy v. Derwinski, 1 Vet. App. 78 (1990). Where 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 light of the above considerations, and in order to ensure that the appellant will be afforded full due process, the case is REMANDED for the following: 1. The RO should, with the appellant's assistance as needed, ascertain whether there are any treatment records, VA or private, that might be pertinent that are not on file. If so, an attempt to obtain the records should be undertaken. To the extent that there is an attempt to obtain records that is unsuccessful, the claims file should contain documentation of the attempts made. The appellant and his representative should also be informed of the negative results. 38 C.F.R. § 3.159. 2. After the above medical records have been associated with the claims file, a VA social and industrial survey should be conducted in order to clarify the appellant's medical, social, educational, and employment history. The social worker should review the claims file prior to the survey. The social worker should elicit and set forth pertinent facts regarding the appellant's medical history, education, employment history, social adjustment, and current behavior and health. The social worker should offer an assessment of the appellant's current functioning and identify the conditions which limit his employment opportunities. Any potential employment opportunities should be identified. The claims file must be made available to the social worker in conjunction with the survey as it contains important historical data. Distinctions between service and non-service-connected disorders should be noted. 3. The appellant should be afforded a VA audiology examination to evaluate the severity of the service-connected bilateral hearing loss. The claims file should be made available to the examiner for review before the examination. Complete hearing testing should be done in this regard. The examiner also should provide for review a copy of the hearing test work sheet prepared in connection with the examination. 4. The appellant should be also scheduled for appropriate VA medical and psychiatric examination(s) of the appellant's general medical condition. These medical examination(s) should be broad enough to cover all diseases, injuries, and residual conditions which are suggested by the appellant's complaints, symptoms or findings to be associated with his service connected disabilities at the time of examination. All limitations should be set forth in detail. All complaints or symptoms having a medical cause should be covered by a definite diagnosis. All necessary tests, as well as any other recommended examinations, should be conducted and all clinical manifestations attributable to each disability should be reported in detail. The examining physicians should be given access to the appellant's claims file for a sufficient period of time prior to the examinations to allow for a complete review of the record. The examiners should describe in detail the impact, if any, that the appellant's service-connected disabilities have on his employability. In addition, the psychiatric examiner should indicate whether there is a psychiatric disorder present that is in any way related to the service connected hearing loss. 5. The RO should review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. Specific attention is directed to the medical examination reports. If the reports do not include all test reports, special studies or fully detailed descriptions of all pathology or adequate responses to the specific opinions requested, the report must be returned to the examiner(s) for corrective action. 38 C.F.R. § 4.2. "If the [examination] report does not contain sufficient detail it is incumbent upon the rating board to return the report as inadequate for evaluation purposes." Green v. Derwinski, 1. Vet. App. 121, 124 (1991); Abernathy v. Principi, 3 Vet. App. 461, 464 (1992); and Ardison v. Brown, 6 Vet. App. 405, 407 (1994). 6. After completion of the above, the RO should again adjudicate the appellant's unemployability claim on the appropriate legal basis and with consideration of all pertinent regulations. The RO should consider whether there are any factors that would warrant a higher rating for the appellant's disabilities, or extra- schedular consideration, and/or referral to the Under Secretary for Benefits or the Director, VA Compensation and Pension Service for assignment of extraschedular rating for the appellant's disabilities under the provisions of 38 C.F.R. § 3.321. Further, the RO should adjudicate the secondary service connection claim, prior to returning the case to the Board for further appellate review. If any intertwined issue is denied and no disagreement is filed, it should not be certified to the Board unless all applicable appellate procedures are followed. 7. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. When this development has been completed, and if the benefits sought are not granted, the case should be returned to the Board for further appellate consideration, after compliance with appropriate appellate procedures, including issuance of a Supplemental Statement of the Case. It is requested that this statement specifically set forth the reasons and bases for the decision. No action by the appellant is required until he receives further notice. The Board intimates no opinion, either legal or factual, as to the ultimate disposition warranted in this case, pending completion of the requested development. MICHAEL D. LYON Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. 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) (1999).