BVA9502890 DOCKET NO. 93-10 440 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to a permanent and total disability rating for pension purposes. 2. Whether the appeal to the originating agency's May 31, 1989, rating decision which denied service connection for a foot disorder and a skin disability was timely. REPRESENTATION Appellant represented by: Military Order of the Purple Heart WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. L. Kennedy, Counsel REMAND The veteran served on active duty from November 1965 to November 1968. This appeal arises from a February 1992 rating decision of the Department of Veterans Affairs (VA), New Orleans, Louisiana, Regional Office (RO). In that decision, the veteran's claim of entitlement to a permanent and total disability rating for pension purposes was denied. This matter also came before the Board of Veterans' Appeals (Board) on appeal from a determination by the RO that the veteran's appeal to the originating agency's May 31, 1989, rating decision which denied service connection for a foot disorder and a skin disability was not timely. The Board observes, however, that although the RO has characterized the issue on appeal was whether the veteran's appeal to the originating agency's May 31, 1989, rating decision which denied service connection for a foot disorder and a skin disability was timely, it appears from several statements submitted by the veteran, including a VA Form 21-4138 (Statement In Support of Claim), received in October 1992, that the veteran is not appealing the issue of the timeliness of his appeal to the May 1989 rating decision, but instead is disagreeing with the more recent 1992 determination to deny his claim of entitlement to service connection for a foot disability and a skin disorder. On remand, the RO should clarify the issue with respect to the timeliness issue and ensure that all appropriate development related to his service connection claims has been completed prior to return of the case to the Board. The veteran's claim was appealed and received at the Board in May 1993. Since that time, additional evidence in the form of copies of VA outpatient treatment records from the VA medical facility in Alexandria, Louisiana, dated from June 1993 through December 1993. This additional evidence was received without a waiver of the veteran's right to have that evidence initially considered by the RO. Any pertinent evidence submitted by the veteran or representative that is accepted by the Board must be referred to the RO for review and preparation of a supplemental statement of the case, unless this procedural right is waived by the appellant. See 38 C.F.R. § 20.1304(c) (1993). The veteran has not waived his procedural rights and, in view of other necessary developments described below, this claim must be returned to the RO for consideration of the evidence submitted directly to the Board. The VA has a duty to assist a claimant in the development of facts pertinent to his or her claim under 38 C.F.R. § 3.103(a) (1993). Fulfillment of the duty to assist the appellant includes the procurement and consideration of any relevant VA or other medical records. Ferraro v. Derwinski, 1 Vet.App. 326 (1991). The Board notes that the RO attempted to procure VA outpatient treatment records from the VA medical facility in Alexandria, Louisiana, dated from January 1992 through the present. The record reflects that the facility reported that the veteran had had no outpatient visits. However, based on the most recent submission to the Board, it appears that the veteran is currently receiving outpatient treatment from that medical facility. The RO should procure complete copies of records from that facility. Moreover, in a VA Form 21-527 (Income-Net Worth and Employment Statement) received in September 1991, the veteran indicated that in September 1991, he intended to apply for Social Security Administration disability benefits. The RO should attempt to determine if the veteran did, in fact, file such a claim, and the disposition of that claim. If it is determined that the award was favorable, the RO should procure a copy of the award letter as well as the complete medical record upon which the award was based. 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). The veteran was afforded a personal hearing before the RO in June 1992. At that time, he indicated that in addition to his foot and skin disorders, he had a back disability. The more recent VA outpatient treatment records submitted without waiver of RO consideration support this statement as they reflect treatment for chronic low back and upper back pain as well as treatment for degenerative disc disease, L5-S1. Moreover, the record reflects that the veteran, in conjunction with a VA general medical examination conducted in November 1991, had been scheduled for a VA dermatological examination. Although the VA medical center reported that the veteran failed to report for that examination, he has indicated that he did, in fact, report for the dermatological examination and has submitted a VA pathology report dated in January 1992 in support of his contention. As there appears to be some confusion regarding this matter, the RO should ensure that the VA examination for rating purposes includes a dermatological examination. Several cases have been decided by the United States Court of Veterans Appeals (Court) 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). Complete development in conformity with the points addressed in Roberts and Brown should be accomplished. In view of the foregoing, and in order to fairly and fully adjudicate the veteran's claim, the case is REMANDED to the RO for the following action: 1. The RO should contact the veteran and clarify whether he is appealing the issue of the timeliness of his appeal to the originating agency's May 31, 1989, rating decision which denied service connection for a foot disorder and a skin disability. The RO should assess the accuracy of VA letters sent to the veteran in May 1990 and June 1990 relating to the 1-year appeal period relevant to the June 1989 notice of the prior denial. The RO should ensure that the appropriate issue is in appellate status. 2. The veteran should be asked if he is receiving disability benefits from the Social Security Administration. If he is receiving such benefits, the Social Security Administration should be requested to furnish a copy of the decision awarding the benefits and the medical and other records relied upon in their determination. 3. The RO should request the veteran to identify the names and addresses of any medical care providers, VA and otherwise, who treated him for his disabilities. After securing any necessary release, the RO should obtain records of any treatment identified by the veteran, to include complete records from the VA Medical Center in Alexandria, Louisiana, from June 1993 through the present. 4. The RO should schedule the veteran for a general medical examination as well as a special examination in dermatology to assess the nature, severity, and manifestations of all disabilities that may be present. It is imperative that the examiner review the entire claims folder in connection with the examination. All indicated tests should be conducted and any additional indicated special examinations, such as an orthopedic consultation, should be accomplished. The examiner(s) should render an opinion as to what effect the disabilities diagnosed 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 should be set forth. 5. 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 under 38 U.S.C.A. § 1502(a) (West 1991); 38 C.F.R. §§ 3.321, 4.15, and 4.17 (1993)) by which a permanent and total disability rating for pension purposes may be assigned. Where applicable, the RO should determine whether any of the disabilities are the result of the veteran's willful misconduct. They should then be afforded the applicable time to respond. The case should be returned to the Board for further appellate review on the issues currently in appellate status as well as any issue placed in appellate status during the course of this REMAND. The purpose of this REMAND is to afford the appellant due process of law. The Board intimates no opinion, either factual or legal, as to the ultimate conclusion warranted in this case. CHARLES E. HOGEBOOM 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).