BVA9508121 
DOCKET NO.  93-18 306     )       DATE
          )
          )

On appeal from the decision of the
Department of Veterans Affairs Regional Office in New York, New
York

THE ISSUE

Entitlement to a permanent and total disability rating for
pension purposes.

REPRESENTATION

Appellant represented by: The American Legion

ATTORNEY FOR THE BOARD

S. L. Kennedy, Counsel

REMAND

The veteran served on active duty from July 1952 to November
1952.  This appeal arises from a March 1993 rating decision of
the Department of Veterans Affairs (VA), New York, New York,
Regional Office (RO).  In that decision, the RO denied the
veteran's claim of entitlement to a permanent and total
disability rating for pension purposes.

The Board of Veterans' Appeals (Board) observes that the
veteran's accredited representative in this appeal has requested
that this case be remanded to the RO for additional development.
Specifically, it is asserted on behalf of the veteran that all of
the veteran's disabilities have not been evaluated and rated by
the RO.  In this regard, the Board notes that the veteran was
afforded a VA examination in December 1992; however, subsequent
to this examination, the veteran reported that he has additional
disabilities which were not examined at the time.  The veteran
asserts that he has a back disability, a stomach disorder and a
psychiatric disorder, all of which contribute to his total
disability and resulting unemployability.  The veteran's
representative contends that not only has the RO failed to
consider these additional disabilities in evaluating the
veteran's claim, but the RO also did not rate the veteran's
severe pustular acne or appropriately address the veteran's
postural dizziness, both of which were diagnosed on the December
1992 VA examination.

The VA has a duty to assist a claimant in the development of
facts pertinent to his or her claim under 38 C.F.R. § 3.103(a)
(1994).  The United States Court of Veterans Appeals (Court) has
held that fulfillment of the VA's duty to assist the veteran
includes providing him with a thorough and contemporaneous
medical examination.  Littke v. Derwinski, 1 Vet.App. 90, 92
(1990).  The Board has carefully reviewed the evidence in this
case and has determined that additional examination is necessary
in order to evaluate the nature and extent of all of the
veteran's disabilities.

Several cases have been decided by the Court which impact
significantly on the issue of nonservice-connected pension.  In
Roberts v. Derwinski, 2 Vet.App. 387, 390 (1992), the 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 denying 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 also 38 U.S.C.A. § 1502(a)
(West 1991); 38 C.F.R. §§ 3.321, 4.17 (1994).  Complete
development in conformity with the points addressed in Roberts
and Brown should be accomplished.

The Board notes further that in the course of adjudicating
pensions claims, the RO must also make a determination as to
whether any of the disabilities in question are the result of the
veteran's willful misconduct.  38 U.S.C.A. § 1521(a) (West 1991).
Those disabilities determined not be of willful misconduct origin
should then be identified and evaluated with appropriate
disability percentages assigned.

Fulfillment of the duty to assist the appellant includes the
procurement and consideration of any relevant VA or other medical
records.  Ferraro v. Derwinski, 1 Vet.App. 326 (1991).  The Board
notes that it is unclear from the record whether the veteran is
receiving ongoing medical treatment for his disabilities.  On
remand, the RO should determine whether the veteran is receiving
such medical treatment, and ensure that all available medical
records are included with the record on appeal.

In view of the foregoing, and in order to fairly and fully
adjudicate the veteran's claim, the case is REMANDED to the RO
for the following action:

1.  The RO should request that the veteran
identify all sources of medical treatment
received for the disabilities at issue, and
furnish signed authorizations for release
to the VA of private medical records in
connection with each non-VA medical source
he identifies.  Copies of the medical
records from all sources he identifies (not
already in the claims folder) should then
be requested.  All records obtained should
be added to the claims folder.

2.  The RO should schedule the veteran for
a general medical examination as well as a
special psychiatric examination to assess
the nature, severity, and manifestations of
all disabilities that may be present.  The
claims file should be made available to the
examiners prior to the examinations.  All
complaints should be investigated and those
which have a medical cause should be
covered by a definite diagnosis to include
complaints of a back disorder, a stomach
disorder, postural dizziness, and a
psychiatric disability.  Appropriate
laboratory work, X-rays, pulmonary function
tests, and consultations should be obtained
when necessary.  The examiners should
render an opinion as to what effect the
disabilities diagnosed have on the
veteran's ability to work, and state
whether the veteran's disabling conditions
are susceptible to improvement through
appropriate treatment.

3.  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.  The RO should
identify all disabilities determined to be
the result of the veteran's willful
misconduct.  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)
(1994).  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
unemployability) 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.

          EUGENE A. O'NEILL
          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 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).