BVA9508176 DOCKET NO. 93-10 058 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a permanent and total disability evaluation for pension purposes. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD R. E. Smith, Counsel INTRODUCTION The veteran had active military service from July 1954 to June 1956. This matter came before the Board of Veterans' Appeals (Board) on appeal from a January 1993 rating decision of the St. Petersburg, Florida Regional Office (RO) of the Department of Veterans Affairs (VA), which denied the veteran's claim seeking entitlement to a permanent and total disability evaluation for pension purposes. REMAND The veteran contends that he is unable to work due to ongoing disabilities which he maintains in his substantive appeal include high blood pressure, arthritis involving his hands, shoulders and neck, a back condition, circulatory abnormalities affecting his hands, and right leg instability. He furthermore has asserted that he has ongoing medical examinations and appointments due to the above disabilities and has requested that current VA outpatient clinical data be obtained for consideration in connection with his claim. In its January 1993 rating decision, the RO determined that the appellant's nonservice-connected disabilities consisted of hypertension with left ventricular hypertrophy, evaluated as 30 percent disabling under Diagnostic Code 7007; degenerative joint disease involving the cervical spine, shoulders and wrists, evaluated as 20 percent disabling under Diagnostic Code 5003; dermatitis of the hands evaluated as 10 percent disabling under Diagnostic Code 7813; and scars of the right knee and right thumb, each separately evaluated as noncompensable under Diagnostic Code 7805. Several cases have been decided by the United States Court of Veterans Appeals (Court) which impact significantly upon claims for nonservice-connected pension benefits. In Roberts v. Derwinski, 2 Vet.App. 387, 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, and that a rating decision may not be based on an examination which was conducted before all relevant evidence was gathered. In Brown v. Derwinski, 2 Vet.App. 444, the Court held that a pension claim must be considered under both the average person, 38 U.S.C.A. § 1502(a) (West 1991); 38 C.F.R. § 4.15 (1994), and the unemployability standards, 38 C.F.R. §§ 3.321, 4.17 (1994). Under the circumstances of this case, the Board concludes that additional medical development of the record would be beneficial prior to appellate disposition. Additional procedural action by the RO will also be necessary, as a result of the decisions noted above. Accordingly, further appellate consideration will be deferred and the case is REMANDED to the RO for the following action: 1. The RO should contact the veteran and obtain the names and addresses of all health care providers from whom he has received treatment in recent years. He should furnish signed authorizations for release to the VA of private medical records in connection with each non-VA source he identifies. Complete, up to date records of the veteran's VA medical treatment should be obtained. All records obtained should be added to the claims folder. 2. The veteran should also be requested to indicate whether he is in receipt of Social Security Administration benefits based upon disability. If so, the RO should obtain from the Social Security Administration a copy of any disability determination made and a copy of the medical records upon which the award was based. 3. The veteran should then be afforded a current VA examination for evaluation of all of his claimed disabilities. All indicated special studies or tests should be performed. The claims folder should be made available for review by the examiner prior to the examination. 4. Thereafter, the RO should reevaluate the veteran's claim in light of the additional evidence. If any change in the ratings assigned for the veteran's disabilities in the January 1993 rating decision is warranted by the new evidence, or if the veteran is found to have any ratable disability not evaluated at that time, a new rating decision should be prepared to ensure that each of the veteran's disabilities has been assigned a rating under the VA's Schedule for Rating Disabilities (hereinafter Rating Schedule). Roberts v. Derwinski, 2 Vet.App. 387 (1992). 5. Following completion of the above actions, the RO should review the evidence and determine whether the veteran's claim of entitlement to a permanent and total rating for pension purposes may now be granted, utilizing the two standards (i.e., the average person and unemployability standards under 38 C.F.R. §§ 3.321, 3.340, 4.15, and 4.17 (1994)). 6. If the benefit sought on appeal remains denied, a supplemental statement of the case should be furnished the veteran, containing an explanation of the RO's latest deliberations under 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. If the benefit sought on appeal is denied, the veteran and his representative should be afforded the requisite 60 days to respond to the supplemental statement of the case. 38 C.F.R. § 20.302(c) (1994). Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order, following appropriate appellate procedures. The purpose of this REMAND is to further develop the record and accord due process of law. The Board does not intimate any opinion either factual or legal as to the ultimate disposition warranted in this case. No action is required of the veteran until he is notified. D. C. SPICKLER 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).