BVA9502212 DOCKET NO. 91-52 584 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to a permanent and total disability rating for improved pension purposes. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Susan S. Toth, Associate Counsel INTRODUCTION The veteran had active service from September 1966 to January 1967. This matter arises from a rating decision of December 1990, whereby the Regional Office (RO) denied the veteran's claim for a permanent and total disability rating. In September 1992, the Board of Veterans' Appeals (Board) remanded the case to the RO for additional development of the evidence. REMAND The Board notes that the remand of September 1992 requested that the veteran undergo a general medical examination, as well as examinations in psychiatry, orthopedics, pulmonary diseases and diseases of the kidneys. In January 1993, the veteran underwent a general medical examination as well as an examination in psychiatry. The other examinations were omitted. In Hart v. Brown, No. 92-576 (U.S. Vet. App. July 15, 1993), a single judge action cited for guidance, the United States Court of Veterans Appeals (Court) concluded that the Board erred when it considered a claim when the RO had not conformed to the dictates of an earlier Board remand. The Board also notes that the examinations were performed prior to the receipt of numerous medical records and that the psychiatric examiner did not have the veteran's medical history available for review at the time of the examination. Accordingly, the veteran should be requested to undergo additional examinations in order to determine the true extent of his medical disabilities. See Shoemaker v. Derwinski, 3 Vet.App. 248 (1992); Green v. Derwinski, 1 Vet.App. 121 (1991). Since the veteran is to receive further VA medical evaluation, recent medical treatment records should be procured. In this regard, the 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. § 3.303(a) (1993). The Court has held that the duty to assist includes obtaining available medical records that are relevant to the appeal. Littke v. Derwinski, 1 Vet.App. 90 (1990). At this juncture, the Board reiterates, from the prior remand, that the Court held in Roberts v. Derwinski, 2 Vet.App. 387 (1992), 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 which was conducted before all relevant evidence was gathered, and that the effect of pain on employability must be addressed. In addition, in Brown v. Derwinski, 2 Vet.App. 444 (1992), the Court held that a pension claim must be considered under both the average person (38 U.S.C.A. § 1502(a); 38 C.F.R. § 4.15), and the individual unemployability standard (38 C.F.R. §§ 3.321, 4.17). These requirements have not yet been completely satisfied with regard to the instant claim. As noted above, the veteran's various medical conditions must be evaluated, and if disability is present, a rating must be assigned. The Board notes that the veteran has been diagnosed as having upper and lower extremity radiculopathy (outpatient treatment note of December 1992 from Jeffrey D. Rettig, D.O., P.A.), uncontrolled hypertension (VA outpatient treatment note of September 1990), as well as a left breast lump, possible tension headaches and a fracture of the ninth rib on the right side (VA treatment note of August 1993). These conditions have not been medically evaluated by the VA examiners or assigned a disability rating. The claims folder indicates that the veteran had an application for Social Security benefits pending in September 1990. The outcome of that action is not known. However, the duty to assist the veteran under the provisions of 38 U.S.C.A. § 5107(a), includes an obligation to obtain the records underpinning a Social Security Administration decision awarding disability benefits. Masors v. Derwinski, 2 Vet.App. 181 (1992). Finally, the Board notes that the claims folder contains conflicting information concerning the veteran's employment status which must be clarified prior to appellate disposition. In a statement of January 1993 directed to the VA, the veteran reported that he had not been employed since 1990. However, in statements directed to the counselors at the Narcotics Withdrawal Center in June 1992, July 1992, December 1992 and April 1993, the veteran reported that he was employed. In April 1993, notation was made in the treatment note that the veteran was employed full-time. Under the circumstances of this case, we find that additional assistance is required. Accordingly, the case is REMANDED to the RO for the following: 1. The RO should contact the veteran and obtain the names and addresses of all health care providers where he has received treatment for any medical disability from 1993 to the present. Thereafter, the RO should acquire copies of all available medical records, to include those from Dr. Rettig, 898 North Ellis Street, Groesbeck, Texas 76642, dated from December 1992 to the present, and the following VA Medical Centers in Texas: (1) Temple, (2) Waco and, (3) Marlin, dated from 1993 to the present. Once obtained, all records must be associated with the claims folder. 2. The RO should contact the Social Security Administration and obtain a copy of the Social Security decision prepared in response to the veteran's request for benefits. Copies of underlying medical records upon which the decision was based must be acquired as well. All records obtained should be associated with the claims folder. 3. The RO should contact the veteran and request that he complete an Income - Net Worth and Employment statement. The veteran should specifically state dates of employment since 1991; his employer(s); job title; hours of duty; time lost from work due to disability each year and the reason for the time lost; and salary earned. Once received, the statement must be associated with the claims folder. 4. Following the receipt of the records detailed above, the veteran should be afforded a VA general medical examination, as well as special examinations in psychiatry, orthopedics, neurology, pulmonary diseases and genitourinary diseases to determine the nature and extent of any disability present, including the following: arthritis of the lumbar and thoracic spine; disability of the knees; disability manifested by dizziness; penile warts; disability manifested by radiculopathy to the upper and lower extremities; chronic obstructive pulmonary disease; post-operative neck injury; history of kidney disability and prostatitis; history of tachycardia; sinusitis and rhinitis; post-operative umbilical hernia; dysthymic disorder; drug abuse; left breast lump; hypertension; possible tension headaches; and residuals of a fracture of the ninth rib on the right side. The examiners should review the entire claims file prior to the examinations. All indicated tests should be conducted. 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 treatment. Where appropriate, the effect of pain upon employability should be discussed. The psychiatric examiner should provide an opinion as to whether the veteran's substance abuse is primary in nature or a manifestation of a psychiatric disorder. He or she should also assign a Global Assessment of Function Score consistent with the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (3d ed. rev., l987), and explain what the assigned score represents. The factors upon which the opinions are based must be set forth. 5. When all the requested development has been completed, the case should be reviewed by the RO and a rating decision prepared which lists all 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 a supplemental statement of the case which includes a percentage rating for each diagnosed disability; cites the appropriate diagnostic codes and provides a discussion of their applicability to the veteran's disabilities; and discusses the application of the two standards (average person and unemployability under 38 U.S.C.A. § 1502(a)(1); 38 C.F.R. §§ 3.321, 4.15 and 4.17) by which a permanent and total disability rating for pension purposes may be assigned. The issue of whether any drug abuse is a manifestation of a psychiatric condition or of willful misconduct origin should be addressed. The veteran and his representative should then be given an opportunity to respond. Appropriate criteria should be cited in connection therewith. Thereafter, the case should be returned to the Board in accordance with current appellate procedures. The appellant need take no action until he is further informed. The purpose of this REMAND is to obtain additional information, and no inference should be drawn regarding the final outcome of this claim as a result of this action. I. S. SHERMAN 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) (1993).