BVA9503138 DOCKET NO. 93-13 783 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to a permanent and total disability rating for pension purposes. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD Jeffrey A. Pisaro, Counsel REMAND The veteran had active service from January 1968 to January 1970. This appeal arises from a July 1991 rating decision of the Cleveland, Ohio, Regional Office (RO). Of record is a December 1990 decision by an Administrative Law Judge who held that, based on the veteran's credible testimony and supportive medical documentation, the veteran was disabled for Social Security Administration (SSA) purposes. While the decision of the Administrative Law Judge is of record and summarizes some of the clinical data assembled for the SSA claim, the medical records upon which the decision was based are not of record. Masors v. Derwinski, 2 Vet.App. 181 (1992), mandates that in unemployability claims the Department of Veterans Affairs (VA) must obtain the medical records upon which a grant of SSA benefits was based. 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. § 3.103(a) (1993). The United States Court of Veterans Appeals (Court) has held that the duty to assist includes obtaining available records which are relevant to the claimant's appeal. The duty to assist is neither optional nor discretionary. Littke v. Derwinski, 1 Vet.App. 90 (1990). All recent treatment records from the Cincinnati VA medical center should be obtained and associated with the claims file. The duty to assist also includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the veteran that takes into account the records of prior medical treatment. Green v. Derwinski, 1 Vet.App. 121 (1991). This is to ensure that the evaluation of a disability is a fully informed one. Following the gathering of all medical records, the veteran should be afforded general medical and orthopedic examinations. Under the circumstances of this case, the Board finds that further assistance is required. Accordingly, the case is REMANDED to the RO for the following actions: 1. The RO should contact the SSA and obtain legible copies of the medical records utilized by the Administrative Law Judge in December 1990 when he held that the veteran was disabled for SSA purposes. 2. 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. There- after, the RO should obtain legible copies of all records which have not already been obtained to include those from the Cincinnati VA medical center from November 1991 to the present. 3. Following completion of the above development, the veteran should be afforded general medical and orthopedic examinations to determine the nature and extent of all disabilities present. All indicated tests should be accomplished, and it is imperative that the physicians review pertinent data in the claims folder prior to the examination. All disabilities should be evaluated in relation to their history, with emphasis upon the limitation of social and industrial activity, including any time lost from employment, imposed by the disabling conditions. The examiners 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 appropriate treatment. 4. When the above development has 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) by which a permanent and total disability rating for pension purposes may be assigned. They should then be afforded the applicable time to respond. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if appropriate. The veteran need take no action until he is further informed. The purpose of this REMAND is to obtain additional information and to ensure due process of law. No inference should be drawn regarding the final disposition of the claim as a result of this action. 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).