BVA9503070 DOCKET NO. 93-12 165 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to restoration of a permanent and total disability rating for pension purposes. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Mark J. Swiatek, Counsel REMAND The veteran had active service from October 1972 to August 1974. This matter comes before the Board of Veterans' Appeals (Board) from a March 1992 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. A review of the record reflects that in August 1986, the RO granted entitlement to a permanent and total disability rating for pension purposes effective from September 1985 based on amputation of the right forearm rated 80 percent and residuals of a shotgun wound, right shoulder (major extremity) rated 40 percent. The combined evaluation was 90 percent. The veteran also received Social Security Administration (SSA) benefits as well until the benefit was terminated in mid 1989. The VA pension entitlement remained in effect until the March 1992 rating decision terminated the benefit effective in April 1992. No records have been obtained from Social Security relating to the award of disability benefits nor the termination of his entitlement. The veteran was last examined by the VA in March 1991. At the April 1992 hearing at the RO, the veteran testified that he was scheduled to be evaluated for vocational rehabilitation benefits through a State agency. No record was obtained regarding any action taken as a result of this evaluation. The Board observes that in June 1992, the veteran submitted statements from several employers noting his failure to obtain employment. In February 1993, he reported that he was currently incarcerated, but that he would soon be released. In an April 1993 correspondence, he reported that he had no use of his right shoulder and that he was unable to find work. The VA's duty to assist a claimant in the development of facts pertinent to a claim has been held to require obtaining contemporaneous medical examinations and relevant records to ensure that a decision is an informed one. In view of the foregoing, it is the opinion of the Board that further development, as indicated below, is desirable. Accordingly, the case is REMANDED to the RO for the following action: 1. The RO should contact the veteran and request that he provide the names, addresses and approximate dates of treatment from all VA and non-VA health care providers who have treated him recently for his gunshot wound residuals, or any other disability. With any necessary authorization, the RO should attempt to obtain copies of those treatment records identified by the veteran which have not been previously secured. In addition, he should be asked to provide additional information regarding the vocational rehabilitation evaluation that he mentioned at the April 1992 RO hearing. With any necessary authorization, the RO should obtain all records of this evaluation. 2. At the same time, the veteran should be asked to provide additional information regarding attempts he has made to obtain employment since his release from incarceration. The RO should obtain statements from these perspective employers regarding the veteran's application for employment. 3. The RO should contact SSA and request that it furnish all records, especially treatment reports and reports of examination, considered in adjudicating the veteran's claim for disability benefits, to include all administrative records and examination reports relating to the termination of his entitlement in 1989. These records should be associated with the claims folder. 4. Following completion of the above development, the veteran should be afforded a VA general medical examination and any specialist evaluations pertinent to the claim to determine the nature and extent of all disabilities present. All indicated tests should be accomplished, and it is imperative that the physicians review the entire claims folder prior to the examinations. All disabilities should be evaluated in relation to their history, with emphasis upon the limitation of social and industrial activity imposed by the disabling conditions in view of the whole recorded history. Each examiner should render an opinion as to the effect the disabilities found have on the veteran's ability to work, and state whether the veteran's disabling conditions are susceptible to improvement through appropriate treatment. The factors upon which the medical opinions are based must be set forth. 5. When the above development has been completed, the case should again be reviewed by the RO and the rating action prepared which lists all of the veteran's disabilities and the percentage evaluation assigned to each disability. If the decision remains adverse to the veteran, he and his representative should be furnished with a supplemental statement of the case which includes a recitation of the percentage rating for each diagnosed disability; which cites the appropriate diagnostic codes and provides a discussion of their applicability to the veteran's disabilities; and which discuss the application of the two standards (average person and unemployability) by which a permanent and total disability rating for pension purposes may be assigned. They should then be afforded the applicable time to respond. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if appropriate. The veteran need take no action until he is further informed. The purpose of this REMAND is to obtain additional information and assure due process of law. No inference should be drawn regarding the final disposition of the claim as a result of this action. 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 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 Improvement 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. 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).