Citation Nr: 0001505 Decision Date: 01/19/00 Archive Date: 01/28/00 DOCKET NO. 95-02 965 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to a permanent and total rating for pension purposes. ATTORNEY FOR THE BOARD Robin M. Webb, Associate Counsel INTRODUCTION The veteran had active service from February 1969 to November 1970. This appeal arises before the Board of Veterans' Appeals (Board) from a rating action of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, which denied the veteran's claim of entitlement to a nonservice- connected disability pension. The Board notes that the veteran's claim was before the Board in July 1997. At that time, it was noted that all correspondence sent to the veteran since September 1996 had been returned to the RO. As such, in part because of the veteran's request for a hearing before a traveling Member of the Board, the Board directed the RO to contact the veteran's attorney and request verification of the veteran's contact information. Subsequently, the RO was to schedule the veteran for a hearing before a traveling Member of the Board. While review of the record indicates that the RO took extraordinary steps in its attempt to discover the veteran's current address, given that the veteran's attorney had died in the interim, the Board cannot but find that the RO failed to comply with the Board's remand directives. Here, the record shows that the RO received, in June 1998, VA Form 21- 4138 (Statement in Support of Claim), signed by R.C., Attorney at Law, in which it was stated that the individual had helped the veteran and his former attorney process the veteran's claim. This assertion is supported by documentation contained in the veteran's claims file. R. C. provided a daytime phone number, his address, and his state bar number. The RO never attempted to contact R. C. and ask him if he possessed any current contact information as to the veteran. The RO should have, particularly since the record showed that R. C. had worked for the veteran's attorney and had helped in the veteran's claim. The RO is advised that the Board is obligated by law to ensure that the RO complies with its directives. See Stegall v. West, 11 Vet. App. 268 (1998). Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Id. In this instance, however, the Board finds that there are several other procedural deficiencies, discussed below, which also warrant a REMAND. REMAND In addition, the Board notes that the RO, in VA Form 119 (Report of Contact) , dated in May 1998, referenced the veteran's Social Security Administration (SSA) records. However, current review of the veteran's claims file reveals that the veteran's SSA records are not contained therein. In light of the June 1998 Statement in Support of Claim submitted by R. C., in which he indicated that it would be beneficial to the veteran's claim for the RO to review and consider evidence adduced at the veteran's hearing for SS[I] benefits, the Board finds that these records must be obtained by the RO and incorporated into the veteran's claims file. "When VA is put on notice prior to the issuance of a final decision of the possible existence of certain records and their relevance, the [Board] must seek to obtain those records." Baker v. West, 11 Vet. App. 163, 169 (1998); Hayes (Gerald) v. Brown, 9 Vet. App. 67, 73-74 (1996) (quoting Murincsak v. Derwinski, 2 Vet. App. 363, 373 (1992)). Also, the Board cannot but wonder whether the veteran's SSA records would provide the RO with current contact information as to the veteran. Further, the Board stresses that the veteran has submitted a claim for nonsevice-connected disability pension, a claim that is premised, in part, on evaluations assigned to any and all disorders the veteran might have. See 38 C.F.R. § 4.16(a) (1999). A threshold requirement for such disability pension is that if there is only one such disability, it must be ratable at 60 percent or more. Id. If there are two or more disabilities, one disability must be ratable at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. Id. In this regard, the Board finds that the veteran submitted his claim in September 1993, stating that he had a back injury, a head injury, and left arm problems. However, the veteran's VA examination (conducted in June 1994) only concerned the veteran's head. No examination was done as to the veteran's back and left arm. Rather, the RO, in its July 1994 rating decision, relied upon VA outpatient treatment records (dated from June 1993 to September 1993) in its evaluation of the veteran's other claimed disorders. Combined, the RO found the veteran to be 40 percent disabled, due to post traumatic encephalopathy and headaches, hypermobility and pain of the thoracic spine, and post traumatic seizure disorder. The veteran should have been afforded a VA examination that addressed all of the veteran's claimed disorders. Therefore, in light of the above, the issue of entitlement to a permanent and total rating for pension purposes will not be decided pending a REMAND for the following actions: 1. The RO should attempt to contact R. C., Attorney at Law, at the address and phone number listed in the Statement in Support of Claim, dated in May 1998. The RO should document such attempts and the results of those attempts. 2. If R.C. provides the RO with additional or current contact information as to the veteran, the RO should contact the veteran and inform him of the status of his appeal. Also, as the veteran requested a hearing before a traveling Member of the Board, the RO should ask the veteran whether he still desires such a hearing or any hearing at all, including a hearing at the RO before a Hearing Officer. 3. The RO should obtain the veteran's SSA records and incorporate them into the claims file. Upon receipt of the veteran's SSA records, the RO should review all of the records, paying particular attention to any medical evidence submitted. If these SSA records provide additional or current contact information as to the veteran, the RO should inform the veteran as to the status of his appeal and ask whether he still desires any hearing procedurally allowed him. The RO should again document its attempts to contact the veteran. 4. If the RO is successful in its attempts to contact the veteran (and a reasonable response time should be afforded the veteran), the RO should schedule the veteran for a comprehensive VA general medical examination, which also specifically addresses any back, head, and left arm disorders the veteran experiences. The veteran should be advised that failure to report for his VA examination, as scheduled, might have an adverse effect on the adjudication of his claim. 38 C.F.R. § 3.655 (1999). 5. After all of the above has been accomplished, to the greatest extent reasonably possible, the RO should consider the veteran's claim, in light of any additional evidence obtained and applicable law and regulation. If the veteran's claim remains in a denied status, he should be provided with a supplemental statement of the case, which should include a full discussion of action taken on the veteran's claim and the reasons and bases for such action. The applicable response time should be allowed. In taking this action, the Board implies no conclusion as to any outcome warranted. No action is required of the veteran until he is otherwise notified by the RO. The veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. V. L. Jordan Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. 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) (1999).