BVA9507634 DOCKET NO. 93-12 399 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Wichita, Kansas THE ISSUE Entitlement to a permanent and total disability rating for pension purposes. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. A. McDonald, Associate Counsel INTRODUCTION The veteran had active military duty from October 1964 to September 1966. This case comes before the Board of Veterans' Appeals (hereinafter Board) on appeal from the Department of Veterans Affairs Regional Office in Wichita, Kansas (hereinafter RO). REMAND The issue certified on appeal is entitlement to permanent and total disability rating for pension purposes. Although 38 U.S.C.A. § 241(2) (West 1991) requires the Secretary of Veterans Affairs (hereinafter Secretary) to "distribute full information" in a neutral manner to eligible veterans about benefits to which they may be entitled, 38 U.S.C.A. § 5107 (West 1991) requires the Secretary to do more, to "assist" veterans who have submitted well-grounded claims in developing the facts pertinent to the claim. Therefore, the Department of Veterans Affairs (hereinafter VA) has a duty to assist the veteran in the development of facts pertinent to his claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.103(a) (1993). When the VA is put on notice prior to the issuance of a final decision of the possible existence of certain records and their relevance, the Board must seek to obtain those records before proceeding with the appeal. Murincsak v. Derwinski, 2 Vet.App. 363, 370 (1992). The Board notes that in VA outpatient treatment records the veteran was referred to VA vocational rehabilitation offices. As the VA's vocational rehabilitation determination regarding the veteran's condition bears directly upon the issue on appeal, the veteran's vocational rehabilitation files must be obtained and considered in determining the issue of entitlement to a permanent and total disability rating for nonservice-connected pension benefit purposes. Cherepanik v. Derwinski, No. 90-1519 (U.S. Vet. App. January 9, 1992). It is further noted that the veteran filed a claim with the Social Security Administration (hereinafter SSA) for disability benefits. Any records the SSA has pertaining to its rating of the veteran's unemployability would certainly be pertinent to his claim on appeal. See Collier v. Derwinski, 1 Vet.App. 413, 417 (1991); Ferraro v. Derwinski, 1 Vet.App. 326, 332 (1991). 38 U.S.C.A. § 5107(a) specifically states that the VA's duty to assist includes requesting information from other Federal departments or agencies as provided for in 38 U.S.C.A. § 5106 (West 1991). See Murphy v. Derwinski, 1 Vet.App. 78, 82 (1990); Littke v. Derwinski, 1 Vet.App. 90, 91 (1990). Indeed, the United States Court of Veterans Affairs (hereinafter Court) has held that where the SSA has made a decision regarding employability, the record supporting that decision must be secured. Masors v. Derwinski, 2 Vet.App. 181 (1992). In a claim for a permanent and total disability rating for pension purposes, the duty to assist includes identifying and assessing the level of disability resulting from each disability based on the appropriate Diagnostic Codes found in the VA's SCHEDULE FOR RATING DISABILITIES. 38 C.F.R. Part 4 (1994); see also Brown v. Derwinski, 2 Vet.App. 444 (1992). The Court has also held that the duty to assist the veteran in obtaining all available facts and evidence to support his claim extends to consideration of additional VA examinations. Littke v. Derwinski, 1 Vet.App 90 (1990). The Board notes that the veteran has not been examined for rating purposes since April 1990. It is also noted that the veteran was hospitalized in November 1992, at which time the diagnoses included disorders that have not been considered or rated by the RO in its determination of the issue of entitlement to a total and permanent disability rating for pension purposes. The Board also finds that the statement of the case and the supplemental statement of the case are inadequate, as the veteran was not afforded a discussion or the pertinent diagnostic codes regarding the rating of each of his disabilities in the RO's determination that entitlement to a permanent and total disability rating for pension purposes was not warranted. See Brown v. Derwinski, 2 Vet.App. 444 (1992). Under the circumstances of this case, the Board is of the opinion that additional assistance is required to ensure that necessary development of the issue of entitlement to a permanent and total disability rating for pension purposes be accomplished by the RO. Accordingly, this case is REMANDED to the RO for the following actions: 1. Any VA and private medical records subsequent to November 1992, should be obtained by the RO and incorporated into the claims file. 2. The RO should obtain the veteran's Chapter 31 Vocational Rehabilitation file, together with any decision of whether the veteran was capable of training for employment purposes and all records on which the decision, if any, was based. These records should be associated with the veteran's claims file, as part of the appellate record in this case. 3. The RO should obtain from the SSA copies of all material regarding the veteran's claim, together with its decision, if any. All records obtained should be associated with the veteran's claims file. 4. The veteran should be afforded a complete VA examination(s) to identify and assess the current status of each of his disabilities. The examination(s) should be performed in accordance with the VA's PHYSICIAN'S GUIDE FOR DISABILITY EVALUATION EXAMINATIONS. All pertinent symptomatology, functional limitations, and findings should be reported in detail. All indicated studies and diagnostic tests should be performed. The examiners are requested to give an opinion regarding whether the veteran is forever prevented from obtaining and retaining substantially gainful employment as a result of his disabilities. The claims file should be made available to the examiner(s), prior to the examination(s), for use in the study of the veteran's case. 5. The RO should compile a list of all the veteran's disabilities and rate them individually and in combination pursuant to the VA's SCHEDULE FOR RATING DISABILITIES. 38 C.F.R. Part 4 (1994). The RO should also state the reasons and bases for each disability rating. Following completion of these actions, the RO should review the evidence and determine whether the veteran's claim may now be granted. If not, the veteran and his representative should be provided with an appropriate supplemental statement of the case that contains appropriate laws, regulations, and diagnostic codes. Should the issue on appeal remain denied, a discussion of the applicability of the diagnostic codes and the "average person" standard and the "unemployability" standard, should be included. The veteran and his representative should be given the appropriate opportunity to respond thereto. Thereafter, the claims file, including the above-requested evidence, should be returned to the Board for further appellate consideration. No action is required by the veteran until he receives further notice. The purpose of this remand is to procure clarifying data and afford the veteran due process under the law. The Board intimates no opinion, either legal or factual, as to the ultimate disposition of this appeal. While regretting the delay involved in remanding this case, it is felt that to proceed with a decision on the merits at this time would not withstand court scrutiny. JEFFREY 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 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) (1994).