BVA9505043 DOCKET NO. 93-12 934 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Washington, DC THE ISSUE Entitlement to a permanent and total disability rating for pension purposes. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Melissa F. Marquez, Associate Counsel INTRODUCTION The appellant had active service from August 1961 to August 1965. This matter came before the Board of Veterans' Appeals (hereinafter Board) on appeal from a May 1990 rating decision of the Washington, D.C. Regional Office (hereinafter RO), of the Department of Veterans Affairs (hereinafter VA), which denied entitlement to service connection for a left knee disability, and entitlement to a permanent and total rating for pension purposes. The record contains an October 1990 statement by the appellant expressing a clear desire to withdraw the claim for entitlement to service connection for a left knee disorder. Such statement clearly states that his left knee injury is not service related, and that he does not wish to pursue a compensation claim related thereto. Therefore, the Board finds such issue has been effectively withdrawn by the appellant, and will not be adjudicated on appeal at this time. REMAND The appellant contends, in essence, that he has been unable to sustain employment since 1982 due to his left knee disability. In a May 1990 rating decision, the RO evaluated the appellant's non service connected disabilities as follows: left knee disability, status post left tibial varus osteotomies and partial fibulectomy, with osteoarthritis and chondromalacia, evaluated as 40 percent disabling. The evidence reveals that the veteran has occupational experience as a computer operator. He reportedly has a high school education. He last worked in either 1982 or 1984. He was born in January 1942. The current evidentiary record contains a November 1989 statement from George Stecyk, M.D. indicating the following: a January 1979 left lateral meniscectomy performed by Dr. James Shortt; a July 1988 left high tibial varus osteotomy and partial fibulectomy performed by Dr. Martin Heller; a January 1989 revision of the left high tibial osteotomy with bone graft also performed by Dr. Heller; an intercurrent injury to the left knee in August 1989; several intermittent left knee arthroscopic surgeries; and private psychiatric treatment by Dr. Perry Tepperman. In addition, the record contains a November 1989 VA examination; a September 1990 statement from Allen Gross M.D. indicating a November 1989 revision of the left high tibial osteotomy with bone graft repair of non-union; a July 1990 statement from Dr. Stecyk indicating a January 1990 revision of left osteotomy with internal fixation and bone graft, as well as an opinion that the appellant was totally disabled, even for sedentary employment, due to his left knee disability; and a January 1991 VA examination. During an October 1991 personal hearing, the appellant reported that following additional knee surgeries in 1990, he continues to suffer from extreme pain and muscle spasms in his left knee, as well as extreme atrophy of that knee. In addition, he stated that his knee locks and gives way upon the slightest weight bearing, and that he was unable to walk without the assistance of a cane or crutches. He further testified one of his doctors suspected related nerve damage in that knee. While the record reflects the appellant underwent a VA orthopedic examination in January 1991 by a private orthopedic surgeon, such examination was reportedly performed in the absence of the claims folder, or any medical reports documenting a history of over a dozen left knee surgeries. In addition, such VA examination does not contain an opinion as to the stabilization of the left knee disability, the effects of such disability on employability, or the degree of functional impairment related thereto. Such examination in therefore inadequate for rating purposes. See Roberts v. Derwinski, 2 Vet.App. 387 (1992); Abernathy v. Principi, 3 Vet.App. 461 (1992). Furthermore, during the personal hearing, the appellant reported that he had recently undergone private psychiatric treatment, as well as private treatment for a stomach ulcer. While the hearing officer requested that the appellant submit such reported private medical records for consideration, these medical records are not currently associated with the claims folder, and would assist in the development of a complete history of all current disabilities. See Schafrath v. Derwinski, 1 Vet.App. 589, 594 (1991) (citing 38 C.F.R. §§ 4.1, 4.2, 4.41, 4.42). Furthermore, the appellant has not been afforded a VA examination in order to evaluate such claimed disabilities. The Board has a duty to assist the appellant in the development of facts pertinent to his claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.159 (1994). This duty to assist involves obtaining relevant medical reports and examinations where indicated by the facts and circumstances of the individual case. See Schafrath v. Derwinski, 1 Vet.App. 599 (1991); Littke v. Derwinski, 1 Vet.App. 90 (1990); Murphy v. Derwinski, 1 Vet.App. 78 (1990); Roberts v. Derwinski, 2 Vet.App. 387 (1992); Abernathy v. Principi, 3 Vet.App. 461 (1992). Accordingly, the case is REMANDED for the following developments: 1. The RO should contact the appellant to determine the names, addresses, and dates of treatment of any physicians, hospitals or treatment centers (private, VA or military) who provided him with relevant medical treatment since 1990, including but not limited to January 1990 knee surgery, 1991 private psychiatric treatment, and 1991 private gastrointestinal treatment. After obtaining the appropriate signed authorization for release of information forms from the appellant, the RO should contact each physician, hospital, or treatment center specified by the appellant to obtain any and all medical or treatment records or reports relevant to the above mentioned claim. All pieces of correspondence, as well as any medical or treatment records obtained, should be made a part of the claims folder. If records are sought but not received, the claims folder should contain documentation of the attempts made to obtain the records. The appellant and his representative should also be informed as to the negative results. 38 C.F.R. § 3.159 (1994). 2. The RO should then schedule the appellant for appropriate examinations to identify all disabilities that he may have, including orthopedic, neurologic, psychiatric, and gastrointestinal, for purposes of determining whether he is permanently and totally disabled for pension purposes. In particular, the examiners are requested to give an opinion as to the effect of any disabilities on employability. All indicated tests and studies should be done. All subjective complaints and objective findings should be reported in detail. The claims folder should be made available to the examiners prior to the examinations, and the examiners are asked to review the claims folder prior to the examinations in order to reconcile the clinical reports of record. In addition, the examiners should render an opinion as to the severity of each disability found and the impact each disability has, whether singularly or in combination, on the appellant's employability. The examination should be conducted and reported in accordance with the guidelines set forth in the VA Physician's Guide for Disability Evaluation Examinations. 3. The RO should accord the appellant a social and industrial survey to ascertain his employment history, particularly with regard to his most recent employment and the reason(s) for terminating employment. The RO should also contact his most recent employers to ascertain dates of employment, whether concessions were made for disability and reason(s) for termination of employment. Information concerning the types of duties that the veteran had at his last place of employment should also be obtained. 4. The RO should then reconsider the appellant's left knee disability along with any additional disabilities found with application of the appropriate diagnostic codes in the Schedule for Rating Disabilities to determine the percentage of impairment caused by each disability. The RO should consider whether the appellant is permanently and totally disabled under the "average person" standard of 38 U.S.C.A. § 1502(a)(1) and 38 C.F.R. § 4.15 or the "unemployability" standard of 38 C.F.R. § 4.17. If the appellant does not meet the percentage requirements, a permanent and total evaluation for pension purposes should be considered under 38 C.F.R. § 3.321(b)(2). When this development has been completed, and if the benefit sought is not granted, the case should be returned to the Board for further appellant consideration, after compliance with appropriate appellate procedures, including issuance of a supplemental statement of the case. The statement should specifically set forth the reasons and bases for the decision, and should include the appropriate diagnostic codes and a discussion of their application to the appellant's disabilities. This statement should also discuss the applicability of the "average person" test of 38 U.S.C.A. § 1502(a)(1) and 38 C.F.R. § 4.15, the "unemployability" standard of 4.17, and the provisions of 38 C.F.R. § 3.321(b)(2). No action by the appellant is required until he receives further notice. The Board intimates no opinion, either legal or factual, as to the ultimate disposition warranted in this case, pending completion of the requested development. MICHAEL D. LYON 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).