BVA9505491 DOCKET NO. 84-31 922 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to benefits under the provisions of 38 U.S.C.A. § 1151 (West 1991) (formerly 38 U.S.C. § 351) for additional disability claimed to have been incurred as a result of Department of Veterans Affairs (VA) vocational rehabilitation training under Chapter 31, Title 38, United States Code. 2. Entitlement to a total rating for compensation purposes based on individual unemployability by reason of the veteran's service connected disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD R. D. Turano, Counsel INTRODUCTION The veteran served on active duty from June 1957 to June 1959. This matter originally came before the Board of Veterans Appeals (Board) from decisions by the Regional Office (RO) which denied entitlement to benefits under the provisions of 38 U.S.C.A. § 1151 (West 1991) for additional disability claimed to have been incurred as a result of vocational rehabilitation training under Chapter 31, Title 38, United States Code and entitlement to a total rating for compensation purposes based on individual unemployability. These issues, in addition to several other issues, were certified to the Board in 1984 and assigned a docket number at that time. The Board, in February 1985, severed the issue involving benefits under 38 U.S.C.A. § 1151 in order to address this matter in a separate decision and remanded the remaining issues, including the issue of entitlement to a total rating for compensation purposes based on individual unemployability to the RO for further development. In part, the appellant was to clarify the issues in which she sought appellate review. In a statement dated in July 1989, it was reported that the veteran sought review by the Board relative to her claims for entitlement to a total rating for compensation purposes based on individual unemployability, entitlement to benefits under the provisions of 38 U.S.C.A. § 1151, and entitlement to service connection on a secondary basis for a pulmonary embolism. In a decision by the Board dated in July 1990, service connection was denied for a pulmonary embolism. This decision was promulgated under the original docket number assigned in 1984. Thereafter, the issues currently before the Board, which continued to be docketed under this same number, were remanded for further development in May 1991. This was accomplished, in part, due to the finding that disposition of the issue of a total rating is necessarily dependent on the disposition of the claim for entitlement to benefits under 38 U.S.C.A. § 1151 (West 1991). In a letter remand dated March 1992 these matters were held in abeyance due to a VA-wide stay of issues based on the application of 38 U.S.C.A. § 1151 (West 1991) and associated regulations. These matters have now been returned to the Board, under the original docket number, for review. REMAND A review of the record in this case indicates that service connection has been established for status post total left knee replacement, evaluated as 50 percent disabling; the loss of use of the left foot, evaluated as 40 percent disabling; left leg phlebitis rated 10 percent and appendectomy evaluated as non compensable. Additionally, the veteran is in receipt of special monthly compensation due to the loss of use of one foot. At issue in this appeal is whether the veteran is entitled to a total rating based on individual unemployability solely as a result of her service connected disabilities. The veteran reports that she has been determined to be disabled by the Social Security Administration (SSA) since March 1988, and at this time underwent an orthopedic and neurologic evaluation. A decision by this agency has been associated with the record which indicates that the veteran became disabled as of July 1, 1987, but that this status would continue only until December 31, 1988. Records upon which this determination was based, including any examination reports, have not been associated with this record on appeal, nor has the veteran's current status with this agency been determined. The VA has a duty to assist a veteran in the development of evidence pertinent to a well-grounded claim. 38 U.S.C.A. § 5107 (West 1991) The United States Court of Veterans Appeals (Court) has determined that the VA's duty to assist requires that the VA seek to obtain records or documents when put on notice of the possible existence of certain records and their relevance, including those related to actions by the SSA. Murincsak v. Derwinski, 2 Vet.App. 363 (1992). The Board finds that such records would assist in the adjudication of this matter on appeal. Further, the Board notes that in the May 1991 remand order it was requested that the veteran undergo a comprehensive VA examination and submit information pertaining to her employment history. The Court has further found that the duty to assist includes obtaining the conduct of VA examinations, when appropriate. Littke v. Derwinski, 1 Vet.App. 90 (1990). While such examination was performed in June 1991, the Board finds that an examination detailing the degree of disability currently manifested as a result of the veteran's service connected disabilities should be performed. Moreover, in December 1994, outpatient medical records and hospital records have been received and associated with the record on appeal which have not been formally reviewed by the RO as they may pertain to the matters under consideration in this appeal. The veteran has not, however, provided a waiver of review of this evidence by the RO. The Board is cognizant of the provisions of 38 C.F.R.§ 20.1304 (1994) but finds that review of this additional evidence by the RO, in light of the development required above, is appropriate under such circumstances In light of the foregoing, it is the decision of the Board that further development of this claim is in order. While the Board regrets the further delay that such action may cause, it is deemed to be necessary in order to afford the veteran thorough consideration of her claims on appeal. Accordingly, this case is hereby remanded for the following actions: 1. The RO should contact the SSA and obtain copies of any medical evidence which formed the basis for the finding that the veteran was disabled for the period from July 1, 1987, through December 31, 1988, and to seek information as to the veteran's current status with this agency. Copies of any recent records or decisions pertaining to the veteran's current disability status with the SSA should be secured. 2. The RO should schedule the veteran for VA examinations by a neurologist, orthopedist and vascular specialist in order to determine the current nature and extent of the veteran's service connected disabilities. All indicated studies should be accomplished and the claims folders should be made available to the examiners prior to the completion of these examinations. The examiners should be requested to provide detailed findings associated with these service connected disabilities as well as a statement as to the extent these disabilities may effect the veteran's employability. 3. The RO should then review the issue of entitlement to a total rating for compensation purposes based on individual unemployability with consideration given to the additional evidence obtained above as well as that associated with the record in December 1994. 4. In the event findings remain adverse to the veteran, she and her representative should be furnished a supplemental statement of the case and be afforded the opportunity to respond. Thereafter, the case should be returned to the Board after compliance with all appropriate appellate procedure. No action is required of the veteran until she is further notified. The issue of entitlement to benefits under the provisions of 38 U.S.C.A. § 1151 for additional disability claimed to have been incurred as a result of vocational rehabilitation training under Chapter 31, Title 38, United States Code is hereby deferred pending completion of the above action. In reaching these conclusions the Board intimates no opinion, either legal or factual, as to the ultimate outcome of this case pending completion of the requested development. BRUCE E. HYMAN 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).