BVA9500609 DOCKET NO. 93-09 007 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to a permanent and total disability rating for pension purposes. REPRESENTATION Appellant represented by: Disabled American Veterans INTRODUCTION The veteran had active military service from March 6, to June 19, 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) of Montgomery, Alabama. REMAND The veteran contends that he is unable to work due to his various disabilities, the most severe of which is apparently low back pathology. Review of the record, mindful of the guidance provided by the United States Court of Veterans Appeals (Court) leads to the conclusion that further development is needed. The veteran has indicated that he is receiving benefits from the Social Security Administration (SSA). The record contains a decision by an Administrative Law Judge (ALJ) granting those benefits, but the record does not contain the medical and vocational information relied on by the ALJ. Such information should be made part of the claims folder. See Murincsak v. Derwinski, 2 Vet.App. 363 (1992). The January 1992 rating decision from which this appeal arises listed, as the disabilities rated, low back disorder, personality disorder with mixed emotional features, carpal tunnel syndrome of the right wrist, hypertension, and the residuals of a cholecystectomy with a history of irritable bowel syndrome. These disorders gave rise to the most complaints at the time of the most recent VA examination and it appears that the examination focused on the areas of complaint. Other records on file suggest the veteran has been seen and or treated over the years for a psychoneurosis, cervical spinal problems, hearing loss and tinnitus, and emphysema or chronic obstructive pulmonary disease. The examination did not contain findings as to these disorders but it is required that there be physical findings sufficient to rate the individual disabilities. See Roberts v. Derwinski, 2 Vet.App. 387 (1992). Furthermore, the record does not reflect a recent psychiatric examination. Additionally, in order to make certain that all records are on file, while the case is undergoing other development, a determination will be made as to whether there has been recent medical care, and whether there are any records that should be obtained. Finally, the Court has held that VA decisions on pension benefits should expressly address the two alternative tests for a veteran to qualify for a permanent and total disability rating. Under one test (the objective, or "average person" test) a veteran will be considered permanently and totally disabled if he has a lifetime disability which would render the average person unable to follow substantially gainful employment. 38 U.S.C.A. § 1502(a) (West 1991); 38 C.F.R. § 4.15 (1993). Under the second test (the subjective or "unemployability" test), a veteran qualifies if he is individually unemployable as a result of lifetime disability. 38 U.S.C.A. § 1502(a) (West 1991); 38 C.F.R. §§ 3.321(b)(2), 4.17 (1993); Talley v. Derwinski, 2 Vet.App. 282 (1992); Brown v. Derwinski, 2 Vet.App. 444 (1992). Another RO rating decision discussing the two tests is needed. In view of the foregoing, this case is REMANDED for the following actions: 1. The RO should contact the veteran to ascertain whether he had received any medical treatment since January 1992. If so, the RO should attempt to obtain copies of the clinical records. The veteran's assistance in obtaining records should be requested as needed. If no records are obtained, the claims folder should contain documentation as to the attempts made to obtain records. The veteran and his representative should be informed as to any negative results. 38 C.F.R. § 3.159. 2. The RO should, with the veteran's assistance as indicated, obtain for association with the claims folder, the medical and vocational records used by SSA in entering the disability determination of record. 3. Thereafter the veteran should be scheduled for comprehensive VA medical and psychiatric examinations. All indicated tests should be performed and all clinical findings should be reported in detail. The claims folder should be made available to the examiner(s) for review prior to the examination(s). All of the veteran's chronic disabilities should be examined so that they may be rated. The examiner(s) should also generally address the extent of functional and industrial impairment from the veteran's identified disabilities. See Gary v. Brown, No. 92-1483 (U.S. Vet. App. Dec. 14, 1994). 4. Thereafter, the RO should undertake adjudicatory action to assign disability ratings to all of the disabilities enumerated, including those not previously evaluated, and in view of the material added to the claims folder since the last formal adjudication by the RO. If any change in the evaluations assigned for the veteran's disabilities is found to be warranted by the evidence, or if the veteran is found to have any ratable disability not previously evaluated, a new rating decision should be prepared to ensure that each of his chronic disabilities has been assigned a rating. Roberts v. Derwinski, 2 Vet.App. 387 (l992). 5. Thereafter, the RO should issue another rating decision discussing the application of the "average person" test set forth in 38 U.S.C.A. § 1502(a)(1) (West 1991) and 38 C.F.R. § 4.15 (1993) and the "unemployability" standard of the provisions of 38 C.F.R. § 4.17 (1993). Under the latter criteria, it may be shown that the veteran is unemployable as a result of a lifetime disability. When the percentage requirements of 38 C.F.R. § 4.16 (1993) are met, and the disabilities are of a permanent nature, a rating of permanent and total disability will be assigned if the veteran is found to be unable to secure and follow substantially gainful employment by reason of such disability. 6. Thereafter, the RO should consider 38 C.F.R. § 3.321(b)(2) (1993). A permanent and total disability evaluation for pension purposes may be assigned under this provision where a basically eligible veteran fails to meet the disability percentage requirements, but is found to be unemployable by reason of disability or disabilities, age, occupational background, and other related factors. When the aforementioned development has been accomplished the case should be reviewed by the RO. In the event the benefits sought are not granted, the veteran and his representative should be provided with a supplemental statement of the case and afforded a reasonable opportunity to respond thereto. Thereafter, the case should be returned to the Board for further appellate consideration. No action is required of the veteran until he is notified. MICHAEL D. LYON 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) (1993).