Citation Nr: 0006520 Decision Date: 03/10/00 Archive Date: 03/17/00 DOCKET NO. 98-08 109A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to a permanent and total rating for nonservice- connected pension purposes, to include extraschedular consideration under the provisions of 38 C.F.R. § 3.321(b)(2). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD W. Yates, Associate Counsel INTRODUCTION The appellant served on active duty from July 1968 to February 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 1997 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO) in Buffalo, New York. That rating decision denied entitlement to a permanent and total disability rating for nonservice-connected pension purposes, to include extraschedular consideration under the provisions of 38 C.F.R. § 3.321(b)(2). REMAND The appellant contends, in essence, that the extent of his disabilities are so severe as to entitle him to nonservice- connected pension benefits. Upon review of the evidence of record, the Board finds that due process considerations require that this claim be remanded. In Brown v. Derwinski, 2 Vet. App. 444 (1992), the Court observed that permanent and total disability for pension purposes can be shown in two ways under VA regulations which provide a combination of "objective" and "subjective" standards. Brown, 2 Vet. App. at 446; Talley v. Derwinski, 2 Vet. App. 282 (1992); 38 U.S.C.A. § 1502(a)(1), (2) (West 1991); 38 C.F.R. §§ 3.321(b)(2); 4.17 (1999). The two ways that permanent and total disability can be shown under the law are as follows: (1) the veteran must be unemployable as a result of a lifetime disability (i.e., the "subjective" standard, which is based on disabilities, age, occupational background, and other related factors of the individual veteran whose claim is being adjudicated); or, even if not unemployable, (2) the veteran must suffer from a lifetime disability which would render it impossible for the average person with the same disability to follow a substantially gainful occupation (i.e., the "objective" standard, which is based on (a) the percentage ratings assigned for each disability from the VA Schedule for Rating Disabilities, 38 C.F.R., Part 4; (b) the minimum percentage rating requirements for total ratings based on unemployability in 38 C.F.R. § 4.16(a); and (c) the permanence of those percentage ratings for pension purposes required by 38 C.F.R. § 4.17). 38 U.S.C.A. § 1502(a)(1), (2) (West 1991); 38 C.F.R. §§ 3.321(b)(2); 3.340(b); 3.342, 4.16(a), 4.17, 4.18, 4.19 (1999); Brown, 2 Vet. App. at 446. In making this determination, the Court, in Roberts v. Derwinski, instructed that an evaluation must be performed under the Schedule for Rating Disabilities to determine the percentage of impairment caused by each disability. Roberts v. Derwinski, 2 Vet. App. 387, 389 (1992). This means the RO has the responsibility of identifying all disabilities which a veteran currently has, determining whether or not they are permanent in nature, and assigning a schedular evaluation for each one of them under the VA Rating Schedule. Furthermore, the VA has a duty to the veteran, in cases involving nonservice-connected pension benefits, to provide "a thorough contemporaneous medical examination, one which takes into account prior medical records, so that the evaluation of the claimed disability will be a fully informed one." Roberts at 390 (citing 38 U.S.C.A. § 5107(a) and Green v. Derwinski, 1 Vet. App. 121, 124 (1991)); Grantham v. Brown, 8 Vet. App. 228, 235 (1995). In June 1996, the appellant filed his present application form, VA Form 21-526, seeking entitlement to a permanent and total disability rating for nonservice-connected pension purposes. On his application form, the appellant noted that he had the following conditions: (1) a psychiatric disorder, (2) a seizure disorder, and (3) hearing loss. In January 1997, the appellant was scheduled for and attended medical examinations to determine the severity of his alleged conditions. Subsequently, the RO obtained additional medical evidence which warranted re-examination of the appellant's conditions. In November 1997, the RO arranged for the VA medical center in Buffalo, New York, to schedule the appellant for additional medical examinations (aid and attendance or housebound, audio, ear disease, general medical and mental disorders). However, a computer printout from the VA medical center, dated in January 1998, revealed that the notice for these additional examinations went undelivered and that the examinations were consequently canceled. During the course of this appeal, the appellant changed residences within Buffalo, New York. Although the RO made the appropriate changes, the Board is unable to determine if the recent VA examination notices were sent to the appellant's current address of record. While the computer printouts indicate that notice of the scheduled examinations were sent to the appellant and returned undelivered, there is no way for the Board to determine if the notice was sent to the appellant's current address of record. Under these circumstances, the Board must remand this matter to attempt to schedule the appellant for the appropriate examinations one more time. The Board notes that when the RO meets its burden to notify the appellant and his representative of the information needed to develop the claim, the burden then shifts to the appellant, and consequently to his representative service organization to respond to the RO's requests. Under the applicable criteria, when entitlement to nonservice-connected pension cannot be established or confirmed without a current VA examination or re-examination and a claimant, without good cause, fails to report for such examination, or re- examination, the claim shall be denied. Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant, or the death of an immediate family member. 38 C.F.R. § 3.655(a) & (b) (1998)(emphasis added). "[T]he duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Board also notes that in light of the passage of time since the original adjudication of the veteran's claim by the RO, there may now be additional medical records which are relevant to the veteran's claim. In addition, the RO should request an updated VA Form 21-527 from the veteran to determine if he meets the basic eligibility requirements for VA pension benefits. In light of the foregoing, and recognizing the VA's duty to assist the appellant in the development of facts pertinent to his claim under the provisions of 38 U.S.C.A. § 5107(a) (West 1991) and 38 C.F.R. § 3.103(a) (1999), the case should be remanded to the RO for the following actions: 1. The RO should provide the veteran with an Income-Net Worth and Employment Statement, VA Form 21-527, and request that the veteran promptly complete and return this form to the RO. If after its receipt, the RO determines that the veteran fails to meet the basic eligibility requirements for VA pension benefits, the RO may adjudicate this claim, without further development. 2. The RO should request the veteran to identify all disabilities which he believes are interfering with his ability to maintain employment. 3. The RO should request from the veteran the names, addresses and approximate dates of treatment for all VA and non-VA health care providers who have treated him during this appeal. After obtaining any necessary authorizations, the RO should attempt to obtain copies of those treatment records identified by the veteran which have not been previously secured. 4. The RO should attempt to obtain from the Social Security Administration the records pertinent to the appellant's claim for Social Security disability benefits. Specifically, the Board is interested in the underlying medical records relied upon concerning that claim. 5. The RO should also schedule the veteran for the necessary VA examinations by appropriate specialists in order to determine the severity of all of his alleged nonservice-connected disorders. The claims folder and a copy of this remand should be made available to and be reviewed by the examiners prior to the examination. As to any orthopedic disability identified, the examiner is requested to indicate any functional loss, limitation, and any joint pathology, particularly on use and during flare-ups. See DeLuca v. Brown, 8 Vet. App. 202, 206 (1995) (holding that examination report must account for functional loss due to pain); see also 38 C.F.R. §§ 4.40, 4.45 (1999). The appellant should be advised of the provisions set forth at 38 C.F.R. § 3.655(b) (1999) regarding failure to report for scheduled VA examinations. 6. Following completion of the above actions, the RO must review the claims folder and ensure that all of the foregoing development has been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. 38 C.F.R. § 4.2 (1999) ("if the [examination] report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes."). Ardison v. Brown, 6 Vet. App. 405, 407 (1994). 7. Subsequently, the RO should readjudicate the issue of entitlement to nonservice-connected pension benefits, to include extraschedular consideration under the provisions of 38 C.F.R. § 3.321(b)(2). Following completion of these actions and, if the decision remains unfavorable, the veteran and his representative should be provided with a supplemental statement of the case and afforded a reasonable period of time in which to respond. Thereafter, in accordance with the current appellate procedures, the case should be returned to the Board for completion of appellate review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). He is further advised that he should assist the RO, to the extent possible, in the development of his claim, and that failure to cooperate or to report for any scheduled examination may result in an adverse decision. Wood v. Derwinski, 1 Vet. App. 191, 193 (1991). The purpose of this REMAND is to obtain addition medical evidence and to ensure that the appellant is afforded due process of law. No opinion, either legal or factual, is intimated as to the merits of the appellant's claim by this REMAND. The veteran is not required to undertake any additional action until he receives further notification from VA. This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been (CONTINUED ON NEXT PAGE) remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. BETTINA S. CALLAWAY Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. 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) (1999).