BVA9504844 DOCKET NO. 93-14 723 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to a permanent and total disability rating for nonservice-connected pension purposes. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Richard E. Coppola, Associate Counsel REMAND The veteran served on active duty from October 1972 to October 1974, and again from March 1976 to October 1977. This matter came before the Board of Veterans' Appeals (Board) on appeal from a rating decision of July 1992 from the Boston, Massachusetts, Department of Veterans Affairs (VA) Regional Office (RO), which denied entitlement to a permanent and total disability rating for nonservice-connected pension purposes. In his April 1993 substantive appeal, the veteran stated that he had been awarded SSI benefits 6 months previously. The representative argues that the records associated with that award are relevant to the issue on appeal, and that VA has a duty to obtain these records. The veteran has indicated that he has received medical treatment for his nervous condition at the VA Outpatient Clinic, Springfield, Massachusetts, beginning in March 1991. In his April 1993 substantive appeal, the veteran stated that he had been treated during the previous one and one-half years at that facility and requested that these records be obtained and considered in his appeal. The RO has requested and received copies of records from that facility which are dated from October 1991 to December 1991. It does not appear that any additional VA records were requested by the RO. The veteran underwent a VA psychiatric examination in June 1992. Based on the examination and evaluation, the physician opined that additional psychological testing would be helpful to determine the veteran's ability to function and that neurological examination was needed to evaluate the generalized tremor that the veteran exhibited from time to time during the psychiatric examination. The representative argues that additional medical development is warranted in order to assist the veteran. It does not appear that the veteran has been afforded VA examinations in order to determine the current nature and severity of all his disabilities. In Roberts v. Derwinski, 2 Vet.App. 387, 390 (1992), the United States Court of Veterans Appeals (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 evaluating 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 38 U.S.C.A. § 1502(a) (West 1991); see also 38 C.F.R. §§ 3.321, 4.17 (1993). This has not been accomplished in the present case. Consequently, additional development is necessary in order to comply with the applicable laws and regulations as set forth in Roberts and Brown. Under the circumstances of this case, the Board is of the opinion that additional assistance is required. The case is REMANDED to the RO for the following actions: 1. The veteran should identify the names and addresses of any medical care providers, VA or otherwise, who have treated him for any claimed disabilities since December 1991. The veteran stated that he has been treated at the VA Outpatient Clinic, Springfield, Massachusetts, from March 1991 to September 1991, and subsequent to December 1991. After obtaining any needed authorization from the veteran, the RO should obtain copies of all these records. 2. The RO should obtain a copy of the Social Security Administration disability determination and the medical records upon which that decision was based. Any evi- dence obtained should be made part of the claims folder. 3. The veteran should then be afforded general medical, psychiatric, and neurologic examinations in order to determine the severity and manifestations of any current disabilities, particularly the veteran's psychiatric disability and parkinsonism. The scope of the examina- tions should be broad enough to cover all diseases, injuries, and residual conditions which are suggested by the veteran's complaints, symptoms or findings at the time of examinations. All complaints or symptoms having a medical cause should be covered by a definite diagnosis. The examinations should be conducted in accordance with the Physician's Guide for Disability Evaluation Examinations. The disabilities should be evaluated in relation to their history, with emphasis upon the limitation of activity, specifically employability, imposed by any disabling conditions. The examiners must be provided the claims folder prior to the examinations so that they may review historical data contained therein to obtain a true picture of the progress of any disorders. The examinations should include all appropriate diagnostic testing and studies. The psychiatric examination report should contain all five multiaxial assessment levels as provided in the Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, including a numerical and narrative assessment of the veteran's level of functioning as measured by the Global Assessment of Functioning (GAF) scale code. 4. The RO should readjudicate the veteran's claim. The rating decision should list all of the veteran's disabilities and the percentage evaluation assigned each disability. If a permanent and total rating for pension purposes is denied under both the average person and the unemployability standards, the rating should reflect consideration of the applicability of 38 C.F.R. 3.321(b)(2). If a permanent and total rating for pension purposes remains denied, the supplemental statement of the case should cite the appropriate diagnostic codes and provide a discussion of their applicability to the veteran's disabilities. This document should also provide a discussion of the two standards (average person and unem- ployability) by which a permanent and total disability rating for pension purposes may be assigned, as well as the applicability of 38 C.F.R. 3.321(b)(2). The veteran and his representative should then be afforded the applicable time to respond. The case should then be returned to the Board for further appellate review. The purpose of this REMAND is to obtain additional evidence and ensure that the veteran is afforded all due process of law. The Board intimates no opinion, either factual or legal, as to the ultimate conclusion warranted in this case. No action by the veteran is required until he is contacted by the RO. 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 deter- mination. 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).