92 Decision Citation: BVA 92-15130 Y92 BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 DOCKET NO. 90-04 698 ) DATE ) ) ) THE ISSUES 1. Entitlement to an increased rating for traumatic arthritis of the lumbar spine, currently evaluated as 10 percent disabling. 2. Entitlement to a total rating based upon being individually unemployable due to service-connected disabilities. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Ripley P. Schoenberger, Counsel INTRODUCTION This matter comes before the Board on appeal from a February 1989 rating decision by the St. Petersburg, Florida, Regional Office (RO). The veteran served on active duty from July 1963 to October 1964. By the rating decision of February 1989, the RO denied service connection for arthritis of the low back and denied a total rating based upon being individually unemployable due to service-connected disabilities. The notice of disagreement was received in March 1989. These issues were addressed in supplemental statements of the case issued in April 1989 and May 1989. The substantive appeal was received in May 1989. In August 1989, the veteran was afforded a personal hearing at the RO. A supplemental statement of the case was issued in December 1989. The case was received at the Board in March 1990 and docketed for appellate review in May 1990. By a decision of September 1991, the Board of Veterans' Appeals granted service connection for arthritis of the lumbar spine and remanded the issue of entitlement to a total rating based upon being individually unemployable due to service-connected disabilities. By a rating decision of October 1991, the RO assigned a 10 percent evaluation for traumatic arthritis of the lumbar spine and again denied entitlement to a total rating based upon being individually unemployable due to service-connected disabilities. A supplemental statement of the case was issued in October 1991. The case was received at the Board and docketed for appellate review in January 1992. Throughout his appeal, the veteran has been represented by The American Legion to whom the file was referred in January 1992. That organization submitted additional written arguments to the Board dated March 27, 1992, and the case is again ready for appellate review. In an October 1991 letter, the veteran stated that he disagreed with the 10 percent evaluation assigned for the arthritis of the lumbar spine. Since one of the issues is entitlement to a total rating based upon being individually unemployable due to service-connected disabilities, and an increased evaluation for arthritis of the lumbar spine would affect the veteran's eligibility for a total rating, we are of the opinion that the issue of increased compensation benefits for arthritis of the lumbar spine is inextricably intertwined with the issue of a total rating based upon being individually unemployable due to service-connected disabilities. Therefore, under the guidelines set forth in Harris v. Derwinski, 1 Vet. App. 180, 183 (1991), the Board must assume jurisdiction of the issue of entitlement to increased compensation benefits for traumatic arthritis of the lumbar spine. Consequently, the issues to be considered in this appeal are those listed on the title page. REMAND Unfortunately, this case must again be remanded. In the presentation, dated March 27, 1992, the representative stated that the October 1991 rating decision did not contain the reasons or bases why the RO again denied a total rating based upon being individually unemployable due to service-connected disabilities as required by Gilbert v. Derwinski, 1 Vet. App. 49 (1990). We agree. We point out that at his hearing, the veteran testified that he was attending school (T-9). Department of Veterans Affairs (VA) outpatient treatment notes dated in June 1989 state that the veteran was in a Vocational Rehabilitation program. Information in the claims folder (VA Form 22-6564) indicates that the veteran was inducted into training in July 1989 and was receiving benefits as a vocational rehabilitation trainee under Chapter 31, Title 38, U.S. Code. However, the veteran's Vocational Rehabilitation and Counseling folders have not been associated with the claims folder. In his October 1991 letter, the veteran stated that he had applied for 18 State, County and City positions, but had not been granted a single interview. He indicated that he had worked at a mail sorting machine for 10 nights, but was unable to tolerate the physical stress of sitting for hours on end. He reported he was enrolled in four private employment services, but had not received a single referral. He also complained about the RO granting a 10 percent evaluation for arthritis of the lumbar spine based on 3-year-old information. We point out that the veteran was last afforded a comprehensive examination by the VA in January 1989. VA has a duty to assist the veteran in the development of the facts pertinent to his claim. 38 U.S.C. § 5107(a) (1992); 38 C.F.R. 3.103(a) (1991). The United States Court of Veterans Appeals has held that the duty to assist the veteran in obtaining and developing available facts and evidence to support his claim includes obtaining adequate VA examinations. Littke v. Derwinski, 1 Vet. App. 90, 92 (1990). The Court has also held that once the claimant has "submitted evidence to justify a belief by a fair and impartial individual that the claim is well grounded," the claimant's initial burden has been met. The Secretary, then, is obligated to assist "such a claimant in developing the facts pertinent to the claim." Within the nonadversarial process of VA claims adjudication, the word "pertinent" takes on even stronger meaning; the Secretary's duty applies to all relevant facts, not just those for or against the claim. Murphy v. Derwinski, 1 Vet. App. 78, 81, 82 (1990). Under Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991), a copy of which is attached, the Court held that Board of Veterans' Appeals panels may consider only independent medical evidence to support their findings. If the medical evidence of record is insufficient, or, in the opinion of the Board of Veterans' Appeals, of doubtful weight or credibility, the Board of Veterans' Appeals is always free to supplement the record by seeking an advisory opinion, ordering a medical examination or citing recognized medical treatises in its decisions. In the recent decision of Schafrath v. Derwinski, 1 Vet. App. 589, 592, 594 (1991), a copy of which is attached, the Court held that a correlative of both the VA duty to assist the claimant and its duty to consider disabilities in the context of their total history is the obligation to make all possible efforts to obtain and assess records relevant to an evaluation of the disability. Under the circumstances of this case, we are of the opinion that additional assistance is required. The case is REMANDED to the RO for the following: 1. The veteran should be furnished an application for increased compensation based on unemployability (VA Form 21-8940). When the completed form is received, it should be associated with the claims folder and any indicated development should be completed, to include that suggested in paragraph 50.53 of M21-1. 2. The veteran should be contacted and asked to furnish the name and address of the Postal facility where he worked for 10 consecutive nights. He should also be asked to furnish the dates that he worked for the United States Postal Service. 3. The United States Postal Service facility should be contacted and asked to furnish the reason the veteran terminated his employment. 4. Snead and Associates, Inc.; AAA Employment Services; Pickett Professional; and Prestige Personnel, Inc., in Tallahassee, Florida, should be contacted and asked to furnish the reasons the veteran has not been referred for any job interviews. 5. The veteran should be scheduled for a special VA orthopedic examination to determine the current severity of his arthritis of the lumbar spine, residuals of a fracture of the right femur with malunion, limitation of motion in the right knee with arthritis and 1 1/2-inch leg shortening; and osteomyelitis of the right femur. It is specifically requested that the examiner express an opinion as to whether or not the veteran would be precluded from working due to the severity of the service-connected disabilities. Of course, to assist the examiner, the claims folder must be made available prior to the evaluation. 6. VA Vocational Rehabilitation and Counseling folders pertaining to the veteran should be associated with the claims folder. See paragraph 23.10 of M21-1. 7. Following completion of these actions, the RO should review the evidence and determine whether the veteran's claims may now be granted. Specifically, the RO should adjudicate the veteran's claim for increased compensation benefits for traumatic arthritis of the lumbar spine under the guidelines set forth in Schafrath. If the veteran's claims may not now be granted, he and his representative should be provided with an appropriate supplemental statement of the case, and the assembled records, to include the Vocational Rehabilitation and Counseling folders, should be returned to the Board for further appellate consideration. BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 * GARY L. GICK (Member Temporarily Absent) HOLLY E. MOEHLMANN (CONTINUED ON NEXT PAGE) *38 U.S.C. § 7102(a)(2)(A) (1992) permits a Board of Veterans' Appeals Section, upon direction of the Chairman of the Board, to proceed with the transaction of business without awaiting assignment of an additional Member to the Section when the Section is composed of fewer than three Members due to absence of a Member, vacancy on the Board or inability of the Member assigned to the Section to serve on the panel. The Chairman has directed that the Section proceed with the transaction of business, including the issuance of decisions, without awaiting the assignment of a third Member. Under 38 U.S.C. § 7252 (1992), 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.