BVA9504544 DOCKET NO. 93-14 157 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in San Juan, Puerto Rico THE ISSUE Entitlement to a permanent and total disability rating for pension purposes. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. L. Kennedy, Counsel REMAND The veteran served on active duty from February 1952 to January 1954 and from October 1954 to September 1956. This appeal arises from an October 1991 rating decision of the Department of Veterans Affairs (VA), San Juan, Puerto Rico Regional Office (RO). In written argument submitted to the Board of Veterans' Appeals (Board) on behalf of the veteran, the accredited representative in this case requests that if the Board is unable to grant the benefit sought on appeal on the basis of the record as it currently exists, then the case should be remanded to the RO in order that the veteran may be afforded a complete and comprehensive VA examination. In support of this request, it is asserted that the last VA examination was accomplished in 1991, and that the veteran was not afforded a VA psychiatric examination at the time. The representative further noted that the veteran's nonservice-connected dysthymic disorder which had been rated 10 percent disabling prior to the most recent general medical examination was inappropriately reduced by the RO without benefit of a special psychiatric examination. From a review of the record, the Board notes that the veteran was afforded a VA general medical examination as well as special orthopedic and ear, nose, and throat examinations which were accomplished in February and August 1991. The veteran was not, as noted above, afforded a VA psychiatric examination, although the general medical examiner noted that he found no evidence of mental disease. The record does, however, reflect that the veteran was previously determined to have nonservice-connected dysthymic disorder which was evaluated as 10 percent disabling. The veteran should be examined by a VA psychiatric to determine if any psychiatric impairment currently exists. The Board has also determined that a special gastrointestinal examination should be accomplished on remand as several of the VA outpatient treatment records reflect treatment for a gastrointestinal disorder and as the record reflects that the veteran has not been afforded such a special examination in many years. The Board observes further that the veteran asserts that he has herpes, problems with the vision in his eyes, dizziness, and vertigo which effect his employability. Examination is needed to determine the existence and severity of these claimed disabilities. 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) (1993). The U. S. Court of Veterans Appeals 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 determined that the veteran should be re-examined for purposes of the current appeal. The record also indicates that the veteran is currently employed by the Government of Puerto Rico as a lottery ticket salesman. He contends that this is not only marginal employment, but that he is often unable to perform the duties required by this employment. The RO should contact the veteran's employer and determine the terms and conditions of this employment. Fulfillment of the duty to assist the appellant includes the procurement and consideration of any relevant VA or other medical records. The record reflects that the veteran has received ongoing treatment at the VA Mayaquez satellite outpatient clinic. All available current treatment records from the facility not already of record should be associated with the records assembled for review. 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 (1993). Complete development in conformity with the points addressed in Roberts and Brown should be accomplished. 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 obtain any available treatment records from the VA satellite outpatient clinic in Mayaquez, Puerto Rico dated from November 1991 through the present. 2. The RO should obtain from the veteran's current employer information as to the terms and conditions of his employment as a lottery ticket salesman. 3. The RO should schedule the veteran for a general medical examination as well as a special psychiatric, neurological, orthopedic, and gastrointestinal examina- tions to assess the nature, severity, and manifestations of all disabilities that may be present. The claims folder should be made available to the examiners prior to the examinations. All complaints, including complaints of herpes, eye problems, dizziness, and vertigo, should be investigated and those which have a medical cause should be covered by a definite diagnosis. All indicated tests should be conducted and any additional indicated special examinations should be accomplished. 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. The psychiatric examination report should contain all five multiaxial assessment levels as provided in the Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, including a numerical and narrative assessment of the veteran's level of functioning as measured by the Global Assessment of Functioning (GAF) scale code. 4. 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. 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). 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 unem- ployability) 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. GARY L. GICK 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 deter- mination. 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).