BVA9501366 DOCKET NO. 93-11 020 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to an increased disability evaluation for low back strain, currently evaluated as 20 percent disabling. 2. Entitlement to a compensable disability evaluation for a bilateral hearing loss. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD J. T. Hutcheson, Associate Counsel REMAND The veteran had active military service from October 1942 to January 1950; from March 1950 to May 1953 and from July 1953 to April 1963. This matter came before the Board of Veterans' Appeals (hereinafter "the Board") on appeal from a December 1991 rating decision of the Seattle, Washington Regional Office (hereinafter "the RO") which established service connection for low back strain evaluated as noncompensable; established service connection for a bilateral hearing loss evaluated as noncompensable; granted a 10 percent disability evaluation under the provisions of 38 C.F.R. § 3.324 (1991); and denied a permanent and total disability rating for pension purposes. In March 1992, the appellant submitted a notice of disagreement to the December 1991 rating decision. In May 1992, the RO issued a statement of the case to the appellant which addressed solely the issues of the veteran's entitlement to compensable disability evaluations for his service-connected low back strain and bilateral hearing loss. In January 1993, the RO increased the disability evaluation for the veteran's low back strain from noncompensable to 20 percent disabling. The appellant has been represented throughout this appeal by the Veterans of Foreign Wars of the United States. The appellant asserts on appeal that the RO erred in failing to assign a disability evaluation in excess of 20 percent for the veteran's service-connected low back strain; in failing to assign a compensable disability evaluation for his bilateral hearing loss; and in denying a permanent and total disability rating for pension purposes. In the October 1993 informal hearing presentation, the accredited representative requests that this appeal be remanded to the RO so that the veteran's entitlement to service connection for tinnitus may be formally adjudicated. In reviewing the claims file, the Board observes that the appellant submitted a timely notice of disagreement to the RO's December 1991 denial of a permanent and total disability rating for pension purposes. At the August 1992 hearing on appeal, the accredited representative advanced that "the veteran has a concurrent claim for nonservice-connected pension." The statement of the case and the supplemental statement of the case issued to the appellant do not address the issue of the veteran's entitlement to a permanent and total disability rating for pension purposes. Additionally, the appellant has advanced contentions on appeal which may be reasonably construed as a request for a special monthly pension based on the need for regular aid and attendance or at the housebound rate. The United States Court of Veterans Appeals (hereinafter "the Court") has held that all issues reasonably raised by a liberal reading of the record must be addressed in a non-piecemeal fashion. Harris v. Derwinski, 1 Vet.App. 180 (1991). Additionally, the Court has rendered several decisions since the issuance of the December 1991 rating decision which impact significantly on claims for pension benefits. In Roberts v. Derwinski, 2 Vet.App. 387 (1992), the Court held that each disability in a pension case must be assigned a percentage rating and the RO should discuss the diagnostic codes which it utilized in reaching its decision. In Brown v. Derwinski, 2 Vet.App. 444 (1992), the Court held that a pension claim must be considered under both the "average person" standard delineated in 38 U.S.C.A. § 1502(a) (West 1991); 38 C.F.R. § 4.15 (1993) and the unemployability standards set forth in 38 C.F.R. §§ 3.321, 4.17 (1993). In light of the accredited representative's request and given the Court's holdings in the above-cited cases, the Board finds that additional action which includes furnishing the appellant and her accredited representative with a supplemental statement of the case addressing the issue of the veteran's entitlement to a permanent and total disability rating for pension purposes is necessary prior to final appellate review of the appellant's claim. Accordingly, this appeal is REMANDED for the following action: 1. The RO should formally adjudicate the veteran's entitlement to service connection for tinnitus and a special monthly pension based on the need for regular aid and attendance or at the housebound rate. 2. The RO should then furnish the appellant and her accredited representative with a supplemental statement of the case which includes the percentage rating for each diagnosed disability; the appropriate diagnostic code with a discussion of its applicability; and a discussion of both the "average person" standard delineated in 38 U.S.C.A. § 1502(a) (West 1991); 38 C.F.R. § 4.15 (1993) and the unemployability standards set forth in 38 C.F.R. §§ 3.321, 4.17 (1993) by which a permanent and total rating for pension purposes may be assigned. When the requested action has been completed, and if her claim continues to be denied, the appellant should be afforded a reasonable period of time in which to respond to the supplemental statement of the case. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration if appropriate. The appellant need not take any action unless she is further informed. The purpose of this REMAND is to allow for due process of law. No inference should be drawn from it regarding the final disposition of the appellant's claim. JEFF 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 is appealable to the Court. 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).