BVA9508420 DOCKET NO. 92-24 532 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder. 2. Entitlement to service connection for a back disorder. 3. Entitlement to a permanent and total disability rating for pension purposes. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J.P. Reep, Associate Counsel INTRODUCTION The veteran is the appellant in this case. He had active military service from October 1968 to May 1973. This matter came before the Board of Veterans' Appeals (the Board) on appeal from a November 1991 rating decision of the Houston, Texas Regional Office (RO) of the Department of Veterans Affairs (VA), which denied the veteran's claims for service connection for posttraumatic stress disorder (PTSD) and for nonservice-connected pension. A notice of disagreement regarding the service connection issue was received in December 1991, as was a request for a personal hearing. By correspondence received in February 1992, the veteran withdrew that request. The veteran was denied entitlement to service connection for a low back disorder by rating decision dated in January 1992. In February 1992 the RO received a notice of disagreement wherein the veteran refers to a claim for a "nonservice disability" of his back. The record contains numerous similar references. Although it appears that the veteran is referring to his nonservice-connected pension claim, it is plausible that he is referring to a claim for service connection for a back disorder, or that he erroneously believes in the existence of a claim for "nonservice disability." We have therefore liberally construed the veteran's arguments to constitute the issues reflected on page one of this Remand. In the course of this appeal, the veteran has submitted several statements concerning headaches that he attributes to active service. Inasmuch as the veteran may be filing a separate claim for service connection for headaches, we refer that issue back to the RO for appropriate action. Finally, the Board notes that most of the communications received from the veteran during the course of his appeal focus on the characterization of his 1973 discharge from service as having been "under honorable conditions." It appears that he believes that such characterization has had an adverse impact on his life. Federal District Court documents reflect that the veteran's request for review of a decision of the Air Force Discharge Review Board upholding his general discharge was dismissed in October 1994. At any rate, the character of the veteran's discharge from service has no prejudicial effect on the instant proceedings. Moreover, pursuant to 38 C.F.R. § 3.14, determinations as to honorable service, as in this case, made by the service department are binding on VA. For these reasons, his comments regarding his discharge from service will not be addressed in this decision. REMAND As discussed above, the veteran's references to "nonservice disability" of his back generates some confusion as to the particular claims he wishes to pursue on appeal. This matter should be clarified. In addition, the record indicates that the veteran may be receiving benefits from the Social Security Administration (SSA). The United States Court of Veterans Appeals has held that the VA has a duty to attempt to secure all records of the SSA regarding the veteran's rating of unemployablity for SSA purposes. Murincsak v. Derwinski, 2 Vet.App. 363, 370 (1992). We also note that the record reflects ongoing treatment, at the Texas Department of Corrections, for back problems. The most recent pertinent entry of record is dated in August 1993. 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 clarification as to whether he is claiming that his back disorder was incurred in or aggravated by active service. The RO should also determine whether he was in fact awarded SSA benefits based upon disability. 2. If the veteran was found to be disabled for Social Security benefits purposes, the RO should contact the Division of Benefit Services, Office of Disability Operations, Social Security Administration, Baltimore, Maryland 21241, and request photocopies of the complete records upon which the SSA based its determination that the veteran is disabled. All records so obtained should be added to the veteran's claims folder. 3. The RO should contact the Texas Department of Corrections and obtain all up-to-date medical records. Any records so obtained should be added to the claims folder. 4. If possible (in light of the veteran's incarceration), RO should schedule the veteran for a comprehensive VA examination, for the purpose of assessing the presence and severity of any and all of the veteran's current disabilities. All appropriate testing should be conducted; all findings reported. The veteran's claims folder must be made available to the examiner prior to the examination. 5. If any change in the evaluations assigned for the veteran's disabilities in the January 1992 rating decision is warranted by the new evidence, or if the veteran is found to have any ratable disabilities not evaluated in January 1992, a new rating decision should be prepared, which assigns a rating to each of the veteran's ratable disabilities under the Rating Schedule. In this new rating decision, all of the evaluations that can be considered for pension purposes should be combined under the combined ratings table of the Rating Schedule, 38 C.F.R. § 4.25 (1994). 6. The RO should then consider whether what the Court has referred to as the "average person" test, provided under 38 U.S.C.A. § 1502(a)(1) (West 1991) and 38 C.F.R. §§ 3.340(b) and 4.15 (1994), is applicable. Talley v. Derwinski, 2 Vet.App. 282 (1992); Brown v. Derwinski, 2 Vet.App. 444 (1992). 7. If the nonservice-connected pension benefit sought on appeal remains denied, the RO should consider whether the percentage requirements under 38 C.F.R. § 4.16 (1994) and the permanency requirements under 38 C.F.R. § 4.17 (1994) are met, and, if so, whether the veteran is unemployable as the result of what the Court has referred to as "lifetime" disabilities. Brown, 2 Vet.App. at 446 (1992). 8. If the nonservice-connected pension benefit sought on appeal remains denied and the veteran has been found not to meet the percentage requirements under 38 C.F.R. § 4.16 (1993), the RO should then consider whether the veteran meets the criteria for a determination of "unemployable" under 38 C.F.R. § 3.321(b)(2) (1994), by reason of disability or disabilities, age, occupational background and other related factors. 9. If any of the benefits sought on appeal remains denied, the veteran should be furnished with a supplemental statement of the case which contains an explanation of the RO's latest deliberations, including those regarding all of the foregoing criteria of the "average person" and "unemployability" standards. The supplemental statement of the case should also contain the criteria of the Rating Schedule under which each of the veteran's ratable disabilities has been evaluated. The veteran should be afforded the opportunity to respond to the supplemental statement of the case. Then the case should be returned to the Board for further appellate consideration, if otherwise in order. The veteran need take no action until he is further notified by the RO. The purpose of this remand is to procure additional data. N.R. ROBIN 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).