BVA9503964 DOCKET NO. 93-13 709 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to a permanent and total disability rating for pension purposes. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Robert E. O'Brien, Counsel INTRODUCTION The veteran had active service from January 1962 to October 1969. He was born in November 1943. This case comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied entitlement to nonservice-connected pension benefits. In May 1993 the records in this case were transferred to the RO in Louisville, Kentucky, since the veteran is a resident of that state. By a letter dated June 18, 1993, the Louisville RO notified the veteran that his appeal was being certified to the Board and that the time within which he could submit additional evidence or change the representative was limited to 90 days from the date of this letter. A VA Form 21-22 (Appointment of Veterans Service Organization as Claimant's Representative) was received in June 1994. Pursuant to the provisions of 38 C.F.R. 20.1304(b)(1), the veteran's request for a change in representation is referred to the RO. At various stages of the appeal, the veteran has raised additional issues, including the issues of service connection for hearing loss, service connection for tinnitus, service connection for a back disorder as secondary to his service-connected knee disability, and an increased rating for a right knee disability were raised. In a June 1994 communication, the veteran and his wife appear to be raising the issue of his entitlement to service connection for post-traumatic stress disorder. The United States Court of Veterans Appeals (Court) has held that the Board must address all issues reasonably raised by the record. EF v. Derwinski, 1 Vet.App. 324 (1991). The RO should clarify what issues the veteran wishes to pursue, in addition to the issue of entitlement to nonservice-connected pension benefits, and take appropriate action with regard to all issues the veteran raises. REMAND During the development of this case by the RO, the Court decided several cases which impact significantly on the issue of nonservice-connected pension. In Roberts v. Derwinski, 2 Vet.App. 387, 390 (1992), the Court held that each disability in a pension case must be assigned a percentage rating, that the RO should discuss the diagnostic codes used in denying a claim, that a rating decision may not be based on an examination that was conducted before all relevant evidence was gathered, and that the effect of pain on employability must be addressed. In Brown v. Derwinski, 2 Vet.App. 444, 446-47 (1992), the Court held that a pension claim must be considered under both the average person standard and the unemployability standard. See also 38 U.S.C.A. § 1502(a) (West 1991); 38 C.F.R. §§ 3.321, 4.17 (1993). The RO has not addressed the various points in the above-cited cases. The veteran has not been accorded a rating examination by VA since March 1991 and the most recent medical evidence of record is dated in 1992. VA has a duty to assist the veteran in the development of facts pertinent to his claim under 38 C.F.R. § 3.103(a) (1993). The Court 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 light of the foregoing, the case is REMANDED to the RO for the following actions: 1. The RO should contact the veteran and request that he provide the names and addresses of all health care providers who have treated him for any disability in the recent past and specify the approximate dates of treatment, if possible. Then, after any necessary authorization is obtained from the veteran, the RO should obtain copies of any treatment records identified. 2. A current Income--Net Worth and Employment Statement should be secured from the veteran. 3. The RO should schedule the veteran for a general medical examination, a cardiovascular examination, an orthopedic examination, and any other examinations it deems advisable, to assess the nature, severity, and manifestations of all disabilities that may be present. It is imperative that the examiners review the entire claims folder prior to the examinations. All indicated tests should be conducted and all complaints having a medical cause should be covered by a definite diagnosis. Each examiner should render an opinion as to what effect the disabilities found 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. 4. When the requested developments have been made, the case should be reviewed by the RO, and a rating decision should be prepared which lists all the veteran's disabilities and the percentage evaluation assigned for each disability. The RO should then review the evidence and determine whether the claim of entitlement to a permanent and total rating for pension purposes may now be granted, utilizing the average person and unemployability standards. Thereafter, if the benefit sought on appeal is not granted to the veteran's satisfaction, the RO should issue a supplemental statement of the case for all issues in appellate status, and the veteran and his representative should be provided the applicable time period in which to respond. Thereafter, the case should be returned to the Board for further consideration, if otherwise in order. By this REMAND, the Board intimates no opinion as to any final outcome warranted. No action is required of the veteran until he is notified by the RO. GARY L. GICK 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 deter- mination. 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).