BVA9504872 DOCKET NO. 93-08 656 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office and Insurance Center in Philadelphia, Pennsylvania THE ISSUE Entitlement to an increased evaluation for gastric resection, residuals of duodenal ulcer with status post small bowel resection, currently rated as 40 percent disabling. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD John D. Nachmann, Associate Counsel INTRODUCTION The veteran had active military service from November 1945 to June 1949. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of May 1991 by the agency of original jurisdiction (AOJ), the Department of Veterans Affairs (VA) Philadelphia, Pennsylvania, Regional Office and Insurance Center. The veteran has raised the issue of entitlement to a total rating based on individual unemployability due to service-connected disabilities and has requested a hearing in connection with this claim. This issue has not been developed or certified for appellate consideration and is therefore referred to the AOJ for appropriate action. REMAND The veteran has submitted a well-grounded claim within the meaning of 38 U.S.C.A. § 5107(a). See Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990); Gilbert v. Derwinski, 1 Vet.App. 49, 55 (1990). That is, the Board finds that he has submitted a claim which is plausible. The VA therefore has a duty to assist the veteran in developing facts pertinent to his claim. See Littke v. Derwinski, 1 Vet.App. 90, 91-92 (1990). The veteran's service-connected stomach disorder consists of a gastric resection, which is evaluated pursuant to 38 C.F.R. § 4.114 (1994), Diagnostic Code 7308, and a small bowel resection, which is rated under the provisions of 38 C.F.R. § 4.114, Diagnostic Code 7328. Nevertheless, ratings under diagnostic codes 7301 to 7329 cannot be combined with each other. Instead, a single evaluation must be assigned under the diagnostic code which reflects the predominant disability picture, with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation. See 38 C.F.R. § 4.114. That being said, the Board notes that the report of the veteran's most recent VA examination, which was conducted in November 1991, does not indicate which one of the veteran's two digestive system disorders reflects the predominant disability picture. In addition, the report of this examination reveals that the veteran's medical records were not available to the examiner during the examination. The Board notes that the duty to assist requires the conduction of a thorough and contemporaneous medical examination that takes into account prior medical treatment records so that the evaluation of the claimed disability will be a fully informed one. See Green v. Derwinski, 1 Vet.App. 121, 124 (1991). Therefore, in order to give the veteran every consideration with respect to the present appeal, it is the Board's opinion that further development of the case is warranted. Accordingly, this case is REMANDED for the following actions: The veteran should be afforded a special gastrointestinal examination in order to ascertain the nature and severity of his stomach and intestinal disorders. The examiner should be asked to render an opinion as to whether the veteran's gastric resection or his small bowel resection reflects the predominant disability picture. The examiner should also render an opinion as to whether the veteran is considered unemployable as a result of his digestive system disorders. The claims file or copies of all pertinent records contained therein should be made available to the examiner prior to and during the examination for a complete study of the case. After completion of the requested development, the case should be reviewed by the AOJ. If the determination remains adverse to the veteran, the case should be returned to the Board after compliance with the provisions for processing appeals, including the issuance of a supplemental statement of the case and provision of the applicable time period for response thereto. The purpose of this REMAND is to obtain additional development, and the Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. No action is required of the veteran until he is notified. WARREN W. RICE, 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).