BVA9501337 DOCKET NO. 92-16 352 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUE Entitlement to a permanent and total disability rating for pension purposes. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD J. T. Hutcheson, Associate Counsel REMAND The veteran had active military service from July 1966 to July 1968. This matter came before the Board of Veterans' Appeals (hereinafter "the Board") on appeal from a February 1992 rating decision of the Baltimore, Maryland Regional Office (hereinafter "the RO") which denied a permanent and total disability rating for pension purposes. In February 1993, the Board remanded this appeal to the RO for further action including affording the veteran an additional Department of Veterans Affairs (hereinafter "VA") examination for pension purposes. The requested examination was completed in March 1993. In April 1994, the Board again remanded this appeal to the RO for further action including affording the veteran an additional VA examination for pension purposes. The requested examination was completed in May 1994. The veteran has been represented throughout this appeal by the Paralyzed Veterans of America, Inc. In the December 1994 Informal Hearing Presentation, the accredited representative advances that the instant appeal should be again remanded to the RO as the May 1994 VA examination and the subsequent action by the RO failed to comply with the instructions set forth in the Board's April 1994 remand. He clarifies that the May 1994 general medical and psychiatric evaluations are deficient as they were performed by the same physicians who had conducted the March 1993 VA examination for pension purposes and did not encompass all of the veteran's chronic disabilities. Psychological testing recommended by the examiner was also, apparently, not conducted. The accredited representative avers further that the RO made no determination as to whether the veteran's right thigh gunshot wound residuals were incurred due to his own willful misconduct and otherwise failed to comply with the statutes, regulations and various holdings of the United States Court of Veterans Appeals (hereinafter "the Court") governing the award of VA pension benefits. The Court has rendered several decisions which impact significantly on claims for pension benefits. In Roberts v. Derwinski, 2 Vet.App. 387 (1992), the Court held that each disability in a pension case must be assigned a percentage rating and the RO should discuss the diagnostic codes which it utilized in reaching its decision. In Abernathy v. Principi, 3 Vet.App. 461, 465 (1992), the Court held that the RO must address whether any of the veteran's disabilities are due to his willful misconduct and, if so, what is the impact of such a determination upon his claim for pension benefits. In Brown v. Derwinski, 2 Vet.App. 444 (1992), the Court held that a pension claim must be considered under both the "average person" standard delineated in 38 U.S.C.A. § 1502(a) (West 1991); 38 C.F.R. § 4.15 (1993) and the unemployability standards set forth in 38 C.F.R. §§ 3.321, 4.17 (1993). In reviewing the May 1994 VA general medicine and psychiatric examinations, the Board observes that the evaluations were conducted by physicians who had previously examined the veteran and clearly failed to encompass all of his chronic disabilities. Indeed, there is no mention of the veteran's significant right thigh gunshot wound residuals which were identified at the March 1993 VA examination. Additionally, I note that the RO has neither assigned a percentage rating to the veteran's right thigh gunshot wound residuals nor determined that they arise from his own willful misconduct. Although its inaction is apparently due to the veteran's failure to provide requested information concerning the circumstances surrounding the incurrence of his gunshot wound, and comments by this Board member in the April 1994 remand, which were to the effect that the matter was not being further pursued by reason of the veteran's nonresponse, the RO is not free to ignore a chronic disorder when determining the veteran's entitlement to a permanent and total disability rating for pension purposes. The delay involved in again remanding this case is regretted; nevertheless, the accredited representative has been emphatic in his presentation on this point and, as such, the matter requires technical adherence to governing authority. In light of the VA's duty to assist the veteran in the proper development of his claim as mandated by the provisions of 38 U.S.C.A. § 5107(b) (West 1991) and as interpreted by the Court in the above-cited cases and Littke v. Derwinski, 1 Vet.App. 90, 92-93 (1990), this case is REMANDED for the following action: 1. The RO should schedule the veteran for a VA examination which includes general medical, psychiatric and orthopedic evaluations in order to determine the present nature and severity of his chronic disabilities. The examination should be conducted in accordance with the Physician's Guide to Disability Evaluation Examinations by examiners who have not previously examined the veteran. All indicated tests and studies should be accomplished and the findings then reported in detail. The claims folder should be made available to the examiners prior to the examination. It is requested that background information set forth in the Board's remand decision's of February 1993 and April 1994 be reviewed by the prospective examiners. 2. The RO should then review the claims file and prepare a rating action which lists all of the veteran's current disabilities and the percentage ratings assigned to each disorder. A determination should be made as to whether the veteran's right thigh gunshot wound residuals are the result of his own willful misconduct. If the RO's decision remains adverse to the veteran, he and his accredited representative should be furnished with a supplemental statement of the case which includes the percentage rating for each diagnosed disability; the appropriate diagnostic code with a discussion of its applicability; a discussion of willful misconduct, if appropriate; and a discussion of both the "average person" standard delineated in 38 U.S.C.A. § 1502(a) (West 1991); 38 C.F.R. § 4.15 (1993) and the unemployability standards set forth in 38 C.F.R. §§ 3.321, 4.17 (1993) by which a permanent and total rating for pension purposes may be assigned. Please refer to the body of the 1993 and 1994 Board remand's for further explanation. When the requested action has been completed, and if his claim continues to be denied, the veteran should be afforded a reasonable period of time in which to respond to a supplemental statement of the case. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration if appropriate. The veteran need not take any action unless he is further informed. The purpose of this REMAND is to allow for further development of the record and due process of law. No inference should be drawn from it regarding the final disposition of the veteran's claim. JEFF MARTIN 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 is appealable to the Court. 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) (1993).