BVA9502284 DOCKET NO. 93-09 361 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Entitlement to service connection for arthritis of the cervical spine. 2. Entitlement to an increased evaluation for residuals of traumatic encephalopathy with memory loss, currently evaluated as 30 percent disabling. 3. Entitlement to a total disability rating based on unemployability due to service-connected disabilities. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD John J. Crowley, Associate Counsel INTRODUCTION The veteran served on active duty from October 1961 to November 1964. This matter is currently before the Board of Veterans' Appeals (Board) on appeal from a January 1990 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In his November 1992 substantive appeal, the veteran raised the issue of service connection for a right ankle fracture secondary to his service connected disabilities. In a January 1993 rating decision, service connection for residuals of a right ankle fracture was denied. The veteran did not file a notice of disagreement to this determination. According, this issue is not currently before the Board. REMAND The veteran contends that his service-connected conditions have worsened, with severe limitations caused by a traumatic encephalopathy. It is also contended that he is unemployable as the result of his service-connected disabilities. The veteran's representative cites to a copy of record of a recent Social Security Administration (SSA) determination, which concluded that the veteran is "disabled," as defined within the Social Security Act, since June 14, 1990. 20 C.F.R. § 404.1520(f) (1993). Disability evaluations for VA purposes are determined by the application of a schedule of ratings, which is based on average industrial impairment. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. The veteran's service-connected residuals of a traumatic encephalopathy with memory loss have been evaluated under 38 C.F.R. § 4.132, Diagnostic Code 9304 (1993), dementia associated with brain trauma. Under this diagnostic code, a 70 percent evaluation is warranted when there is a severe impairment of social and industrial adaptability, a 50 percent evaluation is warranted when there is considerable impairment of social and industrial adaptability, a 30 percent evaluation is warranted when there is a definite impairment of social and industrial adaptability, and mild impairment of social and industrial adaptability warrants a 10 percent disability. Id. In Hood v. Brown, 4 Vet.App. 301 (1993), the United States Court of Veterans Appeals (Court) stated that the term "definite" in 38 C.F.R. § 4.132 was "qualitative" in character, whereas the other terms were "quantitative" in charter, and invited the Board to "construe" the term "definite" in a manner that would quantify the degree of impairment. In a precedent opinion, dated November 9, 1993, the General Counsel of the VA concluded that "definite" is to be construed as "distinct, unambiguous, and moderately large in degree." It represents a degree of social and industrial inadaptablity that is "more than moderate but less than rather large." O.G.C. Prec. 9-93 (Nov. 9 1993). The Board is bound by this interpretation of the term "definite" 38 U.S.C.A. § 7104(c) (West 1991). With these considerations in mind, based on the current medical evidence of record, the Board in unable to determine if the veteran is severely impaired, considerably impaired, definitely impaired or mildly impaired as a direct result of the residuals of traumatic encephalopathy with memory loss. Many of the disabilities currently associated with his organic mental disorder appear to cause physical impairment. The veteran is, however, currently evaluated under separated diagnostic evaluations for the neurological difficulties associated with his service-connected disability. The Board must avoid evaluating the same manifestation or disability under various diagnoses. 38 C.F.R. § 4.14 (1993). With regard to the veteran's claim of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities, a social survey which appears to have been performed in October 1992 seems to conclude that the veteran would be unable to perform his previous employment as a draftsman. It is unclear, however, based on the current evidence of record if he is capable of employment in other fields. Moreover, based on recent VA medical examinations, his past claims of entitlement to service connection for disabilities which have been denied by the RO, and the December 1991 SSA determination, it also appears that the veteran suffers from significant disabilities for which he is not currently service connected. In view of the evidence of record, the veteran's claims of entitlement to an increased evaluation for residuals of traumatic encephalopathy with memory loss and a total disability rating based on unemployability due to service-connected disabilities appear to be well-grounded within the meaning of 38 U.S.C.A. § 5107 (West 1991). With regard to his claim of entitlement to service connection for arthritis of the cervical spine, the Board specifically defers appellate consideration thereof pending completion of the development requested below. The VA has a duty to assist a veteran in the development of facts pertinent to well-grounded claims. 38 U.S.C.A. § 5107(a); 38 C.F.R. § 3.103(a) (1993). The undersigned believes that additional information is required to determine the degree of industrial impairment resulting from the veteran's service- connected disability and to determine if the veteran is unemployable as the result of all his service-connected disabilities. See Beaty v. Brown, 6 Vet.App. 532 (1994). The Court has held that the duty to assist includes the duty to obtain thorough and contemporaneous VA examinations, including examinations by specialists when indicated, and the duty to obtain pertinent medical records. Counts v. Brown, 6 Vet.App. 473 (1994); Hyder v. Derwinski, 1 Vet.App. 221 (1991); Green v. Derwinski, 1 Vet.App. 121 (1991); Littke v. Derwinski, 1 Vet.App. 90 (1990). It appears from the record that additional relevant information regarding the veteran's claim for workmen's compensation, as well as pertinent reports and medical records relied upon by the SSA are not currently of record: specifically, the medical records from the Central Minnesota Counseling Center, Inc., and the letter from Dennis Anderson, M.A., dated January 1991, regarding the veteran's current intellectual functioning. Since 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 veteran to develop the facts pertinent to his claims. Ascherl v. Brown, 4 Vet.App. 371, 377 (1993). Accordingly, the case is REMANDED to the RO for the following actions: 1. The RO should request the veteran to identify all health care providers who may possess additional records pertinent to his claims. After securing any necessary authorization from the veteran, the RO should attempt to obtain copies of treatment records from all sources identified by the veteran which have not been previously secured and associated with the record. 2. The veteran should be requested to indicate whether he has received an award of workers' compensation benefits. With authorization from the veteran, the RO should obtain through appropriate channels a copy of any workers' compensation determination made and a copy of the medical records upon which the award was based. The veteran should be advised that his cooperation in securing these records may produce positive consequences in connection with his claim for VA benefits. 3. The RO should obtain from the SSA copies of all available medical evidence relied upon in its disability determination relative to the veteran. Specifically, exhibit 18 mentioned in the Administrative Law Judge's December 1991 determination concerning the veteran's claim for social security benefits, the medical records from the Central Minnesota Counseling Center, Inc., and the letter from Dennis Anderson, M.A., dated January 1991. 38 U.S.C.A. § 5106 (West 1991). 4. The veteran should be requested to complete and return an up-to-date employment information statement (VA Form 21-8940). 5. The veteran should be afforded a VA social and industrial survey to assess his employment history and to ascertain specifically the effects his service- connected disabilities have on his employment status and day-to-day functioning. Interviews with the veteran's neighbors and disinterested acquaintances should be accomplished, if possible, concerning his daily activities. Specific reference should be made to all of the veteran's service-and nonservice connected disabilities and the effect that each has on his ability to work. A written copy of the VA social worker's report should be associated with the claims folder. 6. The RO should arrange for a VA psychiatric examination of the veteran to determine all current manifestations of his service-connected residuals of traumatic encephalopathy with memory loss. All indicated studies should be performed and the psychiatrist should comment on the degree of social and industrial mental impairment which the veteran experiences as a result of his service-connected organic mental disorder. If possible, the psychiatrist should attempt to distinguish between the organic mental disorder associated with the veteran's service- connected injury and any nonservice- connected psychiatric disorder found to be present. The psychiatric examiner should assign a numerical code under the Global Assessment of Functioning Scale (GAF) provided on pages 22 and 23 of the Quick Reference to the Diagnostic Criteria from DSM-III-R (3rd ed. rev., 1987) (DSM-III-R). It is imperative that the physician include a definition of the numerical code assigned under DSM-III-R, in order to comply with the requirements of Thurber v. Brown, 5 Vet.App. 119 (1993). The claims folder should be made available to the examiner for review prior to the examination of the veteran. 7. The RO should also afford the veteran VA orthopedic and neurologic examinations to determine the nature and extent of all of the veteran's service-connected disabilities, inculding paresis of the left lower extremity, partial paralysis of the right ulnar nerve (major), residuals of a fracture of the left wrist, traumatic encephalopathy with memory loss, trephine burr holes and a fracture deformity of the right elbow. The examiners should also note the nature and extent of all nonservice-connected disabilities found to be present. All indicated studies, including x-rays and range of motion testing, measured in degrees, should be performed. The examiners should also be asked to render opinions as to the degree of functional impairment caused by the veteran's service-connected disabilities. The claims folder should be made available to the examiners in conjunction with the examinations of the veteran. 8. After any additional appropriate development has been accomplished, the RO should readjudicate the veteran's claims as stated on the title page of this decision. The rating decision should reflect that consideration was given to the provisions of 38 C.F.R. §§ 3.321, 4.40, 4.45 (1993). The veteran is advised that any additional claims he files with the RO will not be before the Board unless the determination of the RO is unfavorable, and the veteran files a notice of disagreement and completes all procedural steps necessary to appeal a claim to the Board in accordance with 38 U.S.C.A. § 7105 (West 1991). If the benefits sought on appeal are not granted to the veteran's satisfaction, he and his representative should be provided a supplemental statement of the case on all issues in appellate status, and they should be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. In taking this action, the Board implies no conclusion, either legal or factual, as to any ultimate outcome warranted. No action is required of the veteran until he is notified by the RO. J.F. GOUGH 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).