BVA9506108 DOCKET NO. 93-16 659 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to a permanent and total disability rating for pension purposes. REPRESENTATION Appellant represented by: Georgia Department of Veterans Service ATTORNEY FOR THE BOARD Jeffrey A. Pisaro, Counsel REMAND The veteran had active service from February 1969 to February 1971. This appeal arises from a May 1991 rating decision of the Atlanta, Georgia, Regional Office (RO). The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the veteran that takes into account the records of prior medical treatment. Green v. Derwinski, 1 Vet.App. 121 (1991). This is to ensure that the evaluation of a disability is a fully informed one. The veteran was last afforded a VA orthopedic examination more than four years ago in February 1991. Since that time, he has been hospitalized and had back surgery on two occasions, in July 1991 and in June 1992. It is the veteran's contention that he is unable to perform substantially gainful employment primarily due to his back disability. In view of the foregoing, following the gathering of all medical records, the veteran should be afforded a VA general medical examination and VA examinations in orthopedics, neurology, and pulmonary disorders. VA has a duty to assist the veteran in the development of facts pertaining to his claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.103(a) (1993). The United States Court of Veterans Appeals (Court) has held that the duty to assist includes obtaining available records which are relevant to the claimant's appeal. The duty to assist is neither optional nor discretionary. Littke v. Derwinski, 1 Vet.App. 90 (1990). All recent treatment records, both VA and private, should be obtained and associated with the claims file. Under the circumstances of this case, the Board finds that further assistance is required. Accordingly, the case is REMANDED to the RO for the following actions: 1. The RO should contact the veteran and obtain the names and addresses of all health care providers where he has received treatment in recent years. Thereafter, the RO should obtain legible copies of all records which have not already been obtained. All records, once obtained, should be associated with the claims folder. 2. Following completion of the above development, the veteran should be afforded a VA general medical examination and VA examinations in orthopedics, neurology, and pulmonary disorders to determine the nature and extent of all disabilities present. All indicated tests should be accomplished. It is imperative that the physicians review the entire claims folder prior to the examinations. Each examiner should render an opinion as to what effect the disabilities found would have on the veteran's ability to work or perform work- related activities, and state whether the veteran's disabling conditions are susceptible to improvement through appropriate treatment. The factors upon which the medical opinions are based must be set forth. 3. When the above developments have been completed, the case should again be reviewed by the RO and a rating action prepared which lists all of the veteran's disabilities and the percentage evaluation assigned each disability. If the decision remains adverse to the veteran, he and his representative should be furnished with a supplemental statement of the case which includes a recitation of the percentage rating for each diagnosed disability; which cites the appropriate diagnostic codes and provides a discussion of their applicability to the veteran's disabilities; and which discusses the application of the two standards (average person and unemployability) by which a permanent and total disability rating for pension purposes may be assigned. They should then be afforded the applicable time to respond. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if appropriate. The veteran need take no action until he is further informed. The purpose of this REMAND is to obtain additional information and to ensure due process of law. No inference should be drawn regarding the final disposition of the claim as a result of this action. 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 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).