BVA9507709 DOCKET NO. 93-16 515 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Washington, D.C. THE ISSUES 1. Entitlement to service connection for alcoholism. 2. Entitlement to a total rating based on individual unemployability due to service-connected disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. L. Kennedy, Counsel REMAND The veteran served on active duty from January 1966 to April 1969. This appeal arises from an October 1988 rating decision of the Department of Veterans Affairs (VA), Washington, D.C., Regional Office (RO). In that decision, the RO denied the veteran's claim of entitlement to service connection for alcoholism and denied a total rating based on individual unemployability due to service-connected disabilities. In June 1988, the veteran submitted a statement to the RO in which he requested that the RO award him 100 percent disability compensation based on his unemployability. As noted above, the RO subsequently determined that the veteran was not entitled to a total rating based on individual unemployability. In a July 1993 memorandum, the veteran's accredited representative in this case indicated that the case had been prematurely sent to him for the completion of a VA Form 1-646 as there was additional development that had not been completed. Specifically, it was asserted that the RO failed to consider the veteran's entitlement to a permanent and total rating for pension purposes. Moreover, it was noted that the claims file contained no recent medical evidence, and that the veteran had not been afforded a current VA examination in order to determine the nature and severity of all disabilities. The Board of Veterans' Appeals (Board) observes that pertinent regulations provide that a claim for compensation may be considered a claim for pension. 38 C.F.R. § 3.151(a) (1994). From a careful review of the record, the Board notes that essentially, the veteran's claim is that he is unemployable; however, it is not clear from the record that the veteran claim was based solely on the impairment caused by his service- connected disabilities as most of the statements submitted by him relate to his claim of service connection for alcoholism. As noted by the representative in this case, the veteran appears to have several nonservice-connected disabilities in addition to his service-connected disabilities, and he has claimed that he is unemployable. As such, the Board has determined that the RO should consider whether the veteran is entitled to a permanent and total disability rating for pension purposes. 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 (1994). Complete development in conformity with the points addressed in Roberts and Brown should be accomplished. 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) (1994). The United States Court of Veterans Appeals (Court) 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). Fulfillment of the duty to assist the appellant also includes the procurement and consideration of any relevant VA or other medical records. Ferraro v. Derwinski, 1 Vet.App. 326 (1991). As noted above, the medical evidence in this case is several years old. Moreover, the Board notes that the veteran has not been afforded a VA examination for rating purposes in numerous years. Thus, the Board finds that the evidence of record is insufficient to determine whether the veteran is unemployable due to disability, either service connected or nonservice connected. In light of the veteran's claims in this case, the Board has determined that the veteran should be afforded a VA examination of all disabilities. Additionally, the RO should request that the veteran provide information regarding medical treatment received in recent years. All available records should then be associated with the assembled records. The record on appeal also reflects that the veteran requested a personal hearing in connection with his appeal. The Board notes that a VA development letter was sent by the RO to the veteran to clarify the type of hearing the veteran had requested. A notation on the Certification of Appeal indicates that the veteran failed to appear for the hearing. However, it appears that during this time, the veteran was incarcerated, and it is unclear whether a response was received by the RO from the veteran regarding this matter. On remand, the RO should associate with the file evidence that the veteran failed to report for a scheduled hearing or if a hearing was not scheduled, determine whether the veteran continues to desire such a hearing. In view of the foregoing, and in order to fully and fairly adjudicate the veteran's claim, the case is REMANDED to the RO for the following action: 1. The RO should request that the veteran identify all sources of medical treatment received for the disabilities at issue in recent years, and furnish signed authorizations for release to the VA of private medical records in connection with each non-VA medical source he identifies. Copies of the medical records from all sources he identifies (not already in the claims folder) should then be requested. All records obtained should be added to the claims folder. 2. The RO should associate with the file evidence that the veteran failed to report for a scheduled personal hearing or if a hearing was not scheduled, determine whether the veteran continues to desire such a hearing. The RO should try to schedule the hearing to accommodate the veteran, if possible. 3. The RO should schedule the veteran for a VA medical examination to assess the nature, severity, and manifestations of all disabilities that may be present to include the veteran's service connected status postoperative stab wound of the upper back and fracture of the right fifth metacarpal. The claims file should be made available to the examiner prior to the examination. All complaints should be investigated and those which have a medical cause should be covered by a definite diagnosis. Appropriate laboratory work, X-rays, and consultations should be obtained when necessary. The examiner 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. 4. The RO should readjudicate the veteran's claims, and adjudicate the veteran's claim of entitlement to a total and permanent disability rating for pension purposes. The rating decision should list all of the veteran's disabilities and the percentage evaluation assigned each disability. The RO should identify all disabilities determined to be the result of the veteran's willful misconduct. 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) (1994). 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 unemployability) 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). If the veteran's claims are not resolved to his satisfaction, the RO should issue a supplemental statement of the case which addresses all issues for which a notice of disagreement has been received. The supplemental statement of the case should include a summary of additional evidence, pertinent laws and regulations, and the reasons for the decision. The veteran and his representative should 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. EUGENE A.. O'NEILL 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 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) (1994).