BVA9500603 DOCKET NO. 93-07 682 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to a permanent and total disability rating for pension purposes. REPRESENTATION Appellant represented by: Marine Corps League WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Melissa F. Marquez, Associate Counsel INTRODUCTION The appellant, who was born in May 1948, had active service from January 1969 to January 1972. This matter came before the Board of Veterans' Appeals (hereinafter Board) on appeal from a December 1991 rating decision of the Nashville, Tennessee, Regional Office (hereinafter RO), of the Department of Veterans Affairs (hereinafter VA), which denied entitlement to a permanent and total disability rating for pension purposes. REMAND The appellant contends, in essence, that he has been unable to sustain employment since 1980 primarily due to his back and psychiatric disabilities, as well as extreme pain in his neck and spine which radiates to his arms. The RO, in its December 1991 rating decision, confirmed a January 1991 rating decision which rated the appellant's nonservice connected disabilities as follows: personality disorder with adjustment reaction, rated as 30 percent disabling; degenerative disease of the lower back with loss of motion, rated as 20 percent disabling; and a right ankle fracture, rated as zero percent disabling; with a combined rating of 40 percent. The Board has a duty to assist the appellant in the development of facts pertinent to his claim. 38 U.S.C.A. § 5107(a) (West 1991). During a June 1992 personal hearing, as well as in his May 1992 substantive appeal, the appellant stated that he was recently awarded disability benefits from the Social Security Administration (SSA) on the basis that he was totally and permanently disabled. There are no such records currently associated with the claims folder, nor is it clear on what basis such a determination was made. Therefore, the Board concludes that such records, including any medical records upon which a determination was based, should be obtained from the SSA. See Brown v. Derwinski, 2 Vet.App. 444 (1992); Roberts v. Brown, 2 Vet.App. 387 (1992). Additionally, during the 1992 personal hearing, the appellant testified that he receives continuing treatment both at the Knoxville County Health Department and from a private chiropractor. These medical records are not currently associated with the claims folder, and would assist in the development of a complete history of current disabilities. See Schafrath v. Derwinski, 1 Vet.App. 589, 594 (1991) (citing 38 C.F.R. §§ 4.1, 4.2, 4.41, 4.42). Furthermore, although there is a November 1991 VA examination which details the nature and severity of the appellant's complaints and disabilities, it does not contain an opinion as to the effects of such disabilities on employability, or the degree of functional impairment related thereto. Accordingly, the case is REMANDED for the following developments: 1. The RO should obtain any relevant medical or vocational records associated with the claim and determination regarding the veteran's employability made by the SSA and associate these records with the claims folder. 2. The RO should contact the appellant and attempt to obtain dates of treatment and complete names and addresses of all physicians, hospitals or treatment facilities (private, VA or military) who have provided him recent relevant treatment, including but not limited to the Knoxville County Health Department, Knoxville Tennessee, and Dr. Hosenfelt, Chiropractor. After obtaining signed authorization for release of information forms from the appellant, the RO should contact each physician, hospital or treatment center specified by the appellant to obtain any and all medical or treatment records or reports relevant to the above- mentioned claim. All pieces of correspondence, as well as any medical or treatment records obtained, should be made a part of the claims folder. 3. The RO should then schedule the appellant for appropriate examinations to identify all disabilities that he may have, including orthopedic, neurologic and psychiatric, for purposes of determining whether he is permanently and totally disabled for pension purposes. In particular, the examiners are requested to give an opinion as to the effect of any disabilities on employability. All indicated tests and studies should be done. All subjective complaints and objective findings should be reported in detail. The claims folder should be made available to the examiners prior to the examinations, and the examiners are asked to review the claims folder prior to the examinations in order to reconcile the clinical reports of record. In addition, the examiners should render an opinion as to the severity of each disability found and the impact each disability has, whether singularly or in combination, on the appellant's employability. The examination should be conducted and reported in accordance with the guidelines set forth in the VA Physician's Guide for Disability Evaluation Examinations. 4. The RO should accord the appellant an industrial survey to ascertain his employment history, particularly with regard to his most recent employment and the reason(s) for terminating employment. The RO should also contact his most recent employers to ascertain dates of employment, whether concessions were made for disability and reason(s) for termination of employment. 5. The RO should then reconsider each of the appellant's disabilities with application of the appropriate diagnostic codes in the Schedule for Rating Disabilities to determine the percentage of impairment caused by each disability. The RO should consider whether the appellant is permanently and totally disabled under the "average person" standard of 38 U.S.C.A. § 1502(a)(1) and 38 C.F.R. § 4.15 or the "unemployability" standard of 38 C.F.R. § 4.17. If the appellant does not meet the percentage requirements, a permanent and total evaluation for pension purposes should be considered under 38 C.F.R. § 3.321(b)(2). When this development has been completed, and if the benefit sought is not granted, the case should be returned to the Board for further appellant consideration, after compliance with appropriate appellate procedures, including issuance of a supplemental statement of the case. The statement should specifically set forth the reasons and bases for the decision, and should include the appropriate diagnostic codes and a discussion of their application to the appellant's disabilities. This statement should also discuss the applicability of the "average person" test of 38 U.S.C.A. § 1502(a)(1) and 38 C.F.R. § 4.15, the "unemployability" standard of 4.17, and the provisions of 38 C.F.R. § 3.321(b)(2). No action by the appellant is required until he receives further notice. The Board intimates no opinion, either legal or factual, as to the ultimate disposition warranted in this case, pending completion of the requested development. HOLLY E. MOEHLMANN 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. (CONTINUED ON NEXT PAGE) 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) (1993).