BVA9505314 DOCKET NO. 91-20 726 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Increased rating for non-functioning right kidney and calculi left kidney, currently evaluated 60 percent disabling, combined. 2. Total disability rating based on individual unemployability due to service-connected disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD William L. Pine, Counsel REMAND The appellant served on active duty from November 1942 to October 1945. The appellant's representative alleges that the Department of Veterans Affairs (VA) Regional Office (RO) has not complied with the remand order of the Board of Veterans' Appeals (Board) of December 1991. The representative also raises a claim for service connection for cardiovascular disease as a result of service-connected kidney disability. The remand requested a nephrology examination, including specific recommendations made in a September 1989 VA examination report and not previously performed. The purpose of the remand was expressed as to determine the status of left renal calculi and to determine bilateral kidney function. The September 1989 examination recommended DMSA scan for right renal function; serum studies for calcium, phosphorus and uric acid; and 24 hour urine collection for calcium, uric acid, oxalate and citrate. The appellant had a nephrology examination in December 1992; the examiner recommended each of the things recommended in September 1989, and also recommended BUN, creatinine and other (illegible) laboratory measurements be taken. Although the procedures and tests suggested in September 1989 were achieved in August 1994, the BUN, creatinine and other tests recommended in December 1992 were not, and the laboratory report of August 1994 was materially defective: The report stated 24 hour urine findings for calcium and uric acid with a note that the values were reported incorrectly and without any correction provided; the note pertaining to uric acid stated that the finding of 246 was incorrect and the finding actually reported was 320. The Board has no way to know whether this report is at all reliable. The laboratory measurements recommended in December 1992 and not yet accomplished are, significantly, for BUN and creatinine, the very values that are explicitly set forth in the VA Schedule for Rating Disabilities, 38 C.F.R. § 4.115a (1994), as criteria for higher ratings for the diagnostic code assigned to the appellant's service-connected kidney disability. Finally, neither the December 1992 nor the August 1994 examination report states whether there are calculi in the left kidney or ureter, which information the Board asked in 1991. The recommendation by an examining VA physician to perform tests in connection with a compensation and pension claim constitutes an obligation for VA in the context of its duty to assist veteran's in developing benefit claims. Hyder v. Derwinski, 1 Vet.App. 221 (1991). Moreover, rating actions by the RO must relate examination findings to the applicable rating criteria. See Massey v. Brown, No. 93-135 (U.S. Vet. App. Dec. 6, 1994). In failing to provide a report of the laboratory findings expressly included in the rating criteria, the RO deprived the appellant of the specific information necessary to prove his claim. Consequently, the Board cannot go forward with this appeal until the tests are done. The RO denied a claim for service connection for coronary condition in March 1990. In response to ambiguity in the substantive appeal in the claim now on appeal, the Board included a request in its December 1991 remand decision instructing the RO to request the appellant to clarify whether he was appealing the denial of service connection for cardiovascular disease. The RO did so in a letter of January 2, 1992. In a statement of October 1992, the appellant disavowed any intent to appeal from the March 1990 denial of service connection for cardiovascular disease. The intent not to appeal that decision was reiterated in the Statement of Accredited Representation in Appealed Case of December 1994. The record reveals that the appellant has reported the receipt of Social Security Administration (SSA) benefits since 1982. SSA records may be pertinent to his TDIU claim and should be requested. In a brief on appeal of February 1995, the appellant's representative states a claim of entitlement to service connection for cardiovascular disease, arguing it is inextricably intertwined with the issue now on appeal. The Board agrees that the cardiovascular issue is inextricably intertwined with an issue now on appeal, but not, as the appellant apparently avers, with the increased rating claim. Rather it is intertwined with the claim for a total disability rating based in individual unemployability (TDIU). In Harris v. Derwinski, 1 Vet.App. 180 (1991), the appellant had perfected an appeal and obtained the decision of the Board on a claim for an increased rating. In the same decision, the Board referred to the RO a claim for service connection for a heart disorder that the appellant claimed was the cause of his service- connected disability. The United States Court of Veterans Appeals (Court) found that "[a] decision by the RO to grant appellant's referred heart disorder claim could have a significant impact upon appellant's claims for an increased rating for anxiety neurosis." Id. at 183. Likewise, a decision by the RO to grant the instant appellant's claim for service connection for cardiovascular disease could have a significant impact on the current appeal from the denial of TDIU. For the reasons set forth in Harris, appellate review of the instant claim for TDIU could well be a waste of resources. Cf. Holland v. Brown, 6 Vet.App. 443 (1994) (where increased rating decision is on appeal and claimant subsequently makes claim for TDIU, neither grant nor denial of the TDIU can affect the outcome of the increased rating appeal, hence they are not intertwined, although vice versa is intertwined). Accordingly, the case is REMANDED for the following actions: 1. Obtain from the Social Security Administration available records, both medical and administrative decisions, indicating why the appellant receives SSA benefits. Document efforts to obtain records and associate any obtained with the claims folder. 2. Schedule the appellant for a VA examination, with x-rays or any other indicated tests, to determine the presence and extent of renal calculi in the left kidney and ureteral tract and to evaluate left kidney function specifically as indicated by BUN and creatinine laboratory measurements. Provide the examiner with the claims folder. 3. Adjudicate a request to reopen a claim for service connection for cardiovascular disease on either a direct or a secondary basis, applying the "two-step" analysis for reopening claims, Manio v. Derwinski, 1 Vet.App. 144 (1991), and reaching the merits of the claim if it is reopened; readjudicate the increased rating and TDIU claims. 4. Provide the appellant and his representative with a comprehensive supplemental statement of the case addressing all issues and including all pertinent laws and regulations, including those relating to reopening of service connection claims and to TDIU claims. Following completion of the above actions, the case should be returned to the Board for further appellate consideration, as appropriate. No action is required of the appellant until he receives further notice. This REMAND is to develop evidence and to ensure the appellant is afforded due process of law. Further appellate review is deferred pending completion of the dictates of this order. The Board intimates no opinion as to the final outcome warranted in this case. KENNETH R. ANDREWS, JR. 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).