BVA9500545 DOCKET NO. 93-06 565 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to a total rating based upon individual unemployability due to service-connected disabilities. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and appellant's spouse ATTORNEY FOR THE BOARD Milo H. Hawley, Counsel REMAND The veteran had active service from September 1956 to October 1957. By rating decision in October 1964, service connection for a skin condition was denied. The veteran was notified of that decision but did not initiate an appeal and it became final. A rating decision in July 1989 denied service connection for neurologic impotence. The veteran was notified of that decision, but did not initiate an appeal and it became final. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 1990 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which denied a rating beyond 50 percent for the veteran's service-connected psychophysiological reaction with hysteria and lumbosacral strain, as well as a total rating based on individual unemployability due to service-connected disability. Although his notice of disagreement of June 1991 was not specific, a statement of the case was issued with respect to the total rating issue, but not with respect to the increased rating. A rating action in June 1991 denied service connection for arthritis of the back on the basis that since the veteran's service-connected condition was psychophysiological reaction with hysteria and lumbosacral strain, he was not service connected for organic disability of the back and, therefore, arthritis could not have developed as a part of the veteran's service-connected disability. The organic diagnosis of lumbosacral strain has been carried forward on repeated examinations and it would appear that the veteran's service connected disability has both organic and psychological aspects. 38 C.F.R. § 4.132 note 2 following Code 9511. In the veteran's substantive appeal, received in January 1992, the veteran refers to his back condition as being service connected and appears to be requesting an increase in the evaluation of his arthritis of the back. The Board construes this as a notice of disagreement with the June 1991 rating decision which denied service connection for arthritis of the back. At his May 1992 hearing and in a June 1992 statement, the veteran indicated that he desired to claim service connection for residuals of frostbite of the left hand and both feet. He states that he was treated for a skin condition, which was a residual to that frostbite following his discharge from service. This appears to be a different claim, and not an attempt to reopen the previous 1964 denial. It has not been adjudicated. In his substantive appeal, he indicates that his need for a penile prosthesis was directly related to his back condition and, thus, entitled to service connection. This may constitute an attempt to reopen the claim denied in July 1989. The claims for service connection for various disabilities are inextricably intertwined with the issue of a total rating based upon individual unemployability due to service-connected disability which is on appeal. The service medical records reflect that the veteran was seen in May and June 1957 with complaints of back pain. A diagnosis of herniated nucleus pulposus was one of the diagnoses offered, but it was not carried forward. No back disorder was noted at separation. The report of an August 1958 VA special orthopedic examination includes the diagnosis of chronic lumbar strain, mild and scoliosis. The scoliosis was the only abnormality noted on X-ray. An August 1958 rating decision granted service connection for lumbar strain, and assigned a noncompensable evaluation. The report of a September 1964 VA special orthopedic examination continued the diagnosis of chronic lumbar strain, and an October 1964 rating decision granted a 10 percent evaluation for lumbosacral strain with psychophysiological musculoskeletal reaction manifested by pain in the back. The disorder was rated under organic rating Codes 5295-5294. The report of a July 1991 VA CT scan of the lumbosacral spine states that there was left lateral protrusion of the disc located between L5 - S1 which could be responsible for the veteran's left lower extremity pain and minimal osteoarthritis involving the anterosuperior aspect of the right sacroiliac joint. On the basis of the above, the Board believes that additional development is required. Accordingly, the case is REMANDED to the RO for the following: 1. The RO should contact the veteran and inquire as to where he has been receiving medical and mental health care from October 1991 until the present. The RO should contact the health care provider(s) identified and request copies of all medical records relating to the veteran's treatment from October 1991 until the present. 2. In a December 1989 claim the veteran stated he was getting Social Security disability benefits due to his back and nerves. The RO should contact the Social Security Administration and request copies of all medical and administrative records relating to any award of benefits to the veteran on the basis of disability. 3. The veteran has stated that he was evaluated for vocational rehabilitation and denied. It should be determined when and where this was done. If it was by the VA the RO should obtain and associate the veteran's VA vocational rehabilitation file with the claims file. If the evaluation was done for other purposes the source should be determined and the records obtained from that source. 4. The veteran should be scheduled for VA psychiatric, orthopedic and neurology examinations to determine the nature and extent of all psychiatric and low back disabilities. All necessary tests and studies should be accomplished, and all clinical manifestations should be reported in detail. Range of motion, where pertinent, should be reported in degrees. If arthritis or a disc disability is identified, the appropriate examiners should comment as to the likelihood that they are related to his service connected disability. The claims file must be made available to the examiners prior to the examinations for review. 5. Following completion of the above, the RO should review the evidence and readjudicate the veteran's claims for service connection for additional back disability and neurologic impotence with penile prosthesis. The issues of service connection for neurologic impotence with penile prosthesis should be considered in terms of whether new and material evidence has been presented. The new claim for service connection for residuals of frostbite should also be adjudicated, and the veteran informed as to the decision on each issue. Since there is a notice of disagreement of record with regard to the issue of service connection for additional back disability, it should be the subject of a statement of the case if it remains denied. The issue of an increased rating for psychophysiological reaction with hysteria and lumbosacral strain, currently evaluated as 50 percent disabling, should also be covered in the statement of the case. 6. The veteran should be informed as to the result of the adjudication of the intertwined claims which are not yet appellate issues and of his right to initiate an appeal by filing a notice of disagreement with regard to any denied issue. Thereafter, the claims file, including any evidence obtained, should be returned to this Board for further appellate review, if in order. No action is required by the veteran until he receives further notice. The purposes of this REMAND are to procure clarifying data and accord due process. The Board intimates no opinion, either legal or factual, as to the ultimate disposition of this appeal. ROBERT D. PHILIPP 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).