BVA9503884 DOCKET NO. 93-18 208 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUES 1. Entitlement to an increased evaluation for L5-S1 radiculopathy, currently rated 20 percent disabling. 2. Entitlement to a total rating based on individual unemployability due to service connected disabilities. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD S. L. Kennedy, Counsel REMAND The veteran has verified active duty from January 1982 to January 1986. This appeal arises from a June 1992 rating decision of the Department of Veterans Affairs (VA), Baltimore, Maryland, Regional Office (RO). In that decision, the RO denied the veteran's claim of entitlement to a disability evaluation in excess of 20 percent for his service-connected L5-S1 radiculopathy, and denied his claim of entitlement to a total rating based on individual unemployability due to service- connected disabilities. The veteran's claim was received at the Board of Veterans' Appeals (Board) in August 1993. Since that time, additional evidence has been received at the Board. This additional evidence includes statements from the veteran, his spouse, a coworker, and a supervisor received by the RO in July 1993, and VA treatment records dated between March 1992 and November 1993, received at the Board in February 1994. This additional evidence was received without a waiver of the veteran's right to have that evidence initially considered by the RO. Any pertinent evidence submitted by the veteran or representative that is accepted by the Board must be referred to the RO for review and preparation of a supplemental statement of the case, unless this procedural right is waived by the appellant. See 38 C.F.R. § 20.1304(c) (1993). The veteran has not waived his procedural rights and this claim will be returned to the RO for consideration of the evidence referenced herein inasmuch as at least some of the evidence could not have been submitted earlier. The VA has a duty to assist a claimant in the development of facts pertinent to his or her claim under 38 C.F.R. § 3.103(a) (1993) The U.S. Court of Veterans Appeals has held that fulfillment of the VA's duty to assist the veteran includes providing him with a thorough and contemporaneous medical examination. Littke v. Derwinski, 1 Vet.App. 90, 92 (1990). In this case, the veteran's accredited representative in additional written argument submitted to the Board dated in March 1994 asserts that the most recent VA examination is inadequate for rating purposes due to the fact that the examiner expressed no opinion regarding the effect of the veteran's service-connected disabilities on his employability. The record on appeal reflects that the veteran was last afforded VA orthopedic and neurological examinations in February 1993. The reports of these examinations do not contain a medical opinion regarding the effect, if any, of impairment due to service-connected disability on the veteran's employability. Moreover, all of the veteran's service-connected disabilities were not examined at the time. The Board has determined that in order to fully assess the nature and extent of all service-connected disability, additional VA examination is necessary. Fulfillment of the duty to assist the appellant includes the procurement and consideration of any relevant VA or other medical records. Ferraro v. Derwinski, 1 Vet.App. 326 (1991). The veteran has indicated that he has received outpatient treatment for his service-connected low back disability at various VA medical facilities. The most recent medical records reviewed include those dated through November 1993. In order to accurately assess the severity of the veteran's service-connected disabilities, all current medical records should be procured and associated with the record on appeal. The record on appeal also indicates that the veteran is in receipt of VA vocational rehabilitation training benefits . The RO should ensure that any available vocational rehabilitation and counseling folder is associated with the record for appellate review. The Board also notes that the record contains information as related by the veteran and a physician that the veteran was unable to return to his work as a carpenter in March 1992. On VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Individual Unemployability), the veteran indicated that he last worked in March 1992 for Dance Brothers Construction. The RO should contact this employer and request information regarding the circumstances of the termination of the veteran's employment with that company. The record also contains correspondence from an attorney dated in June 1992 requesting copies of the veteran's entire military records in connection with an unspecified work-related injury. The veteran should be requested to provide any pertinent information regarding that injury and his employment. If it is determined that this information is relevant to the veteran's claim and that additional development is indicated, the RO should ensure that the development is accomplished. In view of the foregoing, and in order to fully and fairly evaluation the veteran's claim, the case is REMANDED to the RO for the following action: 1. The veteran should identify all sources of medical treatment received for any of the service-connected disabilities at issue, and to furnish signed authorizations for release to the VA of private medical records in connection with each non-VA medical source he identifies. Copies of the medical records from all sources he identifies (not already in the claims folder) should then be requested, to include treatment records from the VA Medical Center in Baltimore, Maryland, dated from October 1993 through the present, and from the Loch Raven VA Hospital from June 1992 through the present. All records obtained should be added to the claims folder. 2. The RO should request that the veteran provide information relating to any work- related injuries. Any indicated additional development should be accomplished. 3. The RO should contact the personnel department of Dance Brothers Construction and request information regarding the termination of the veteran's employment in March 1992. 4. The RO should associate any VA vocational rehabilitation and counseling folders which may be available with the records assembled for appellate review. 5. The RO should schedule the veteran for a general medical examination as well as a special neurological and orthopedic examination to assess the nature, severity, and manifestations of all service-connected disabilities. It is imperative that the examiners review the entire claims folder in connection with the examinations. All indicated tests should be conducted and any additional indicated special examinations should be accomplished. The examiners should render an opinion as to what effect the disabilities diagnosed have on the veteran's ability to work, and state whether the veteran's disabling conditions are susceptible to improvement through appropriate treatment. The factors upon which the opinions are based must be set forth. 6. Thereafter, the RO should readjudicate the veteran's claim. If the determinations remain adverse to the veteran, he should be provided a supplemental statement of the case which includes a summary of additional evidence and the reasons for the decision. The RO should specifically consider the provisions of 38 C.F.R. §§ 3.321, 4.10 and 4.16 (1993), as well as all applicable legal criteria. The veteran and his representative should be afforded the applicable time to respond. The case should then be returned to the Board for further appellate review. The purpose of this REMAND is to obtain additional evidence and ensure that the veteran is afforded all due process of law. The Board intimates no opinion, either factual or legal, as to the ultimate conclusion warranted in this case. CHARLES E. HOGEBOOM 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 action has been taken in accordance with the Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 303, 108 Stat. 4645, ___ (1994), and 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).