BVA9504569 DOCKET NO. 93-13 634 ) 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: Tennessee Department of Veterans' Affairs ATTORNEY FOR THE BOARD S. L. Kennedy, Counsel INTRODUCTION The veteran served on active duty from November 1954 to October 1958. This appeal arises from a March 1993 rating decision of the Department of Veterans Affairs (VA), Nashville, Tennessee, Regional Office (RO). The Board of Veterans' Appeals (Board) notes that the veteran was scheduled for a hearing before a member of the Board which was to have been held at the RO in September 1993. In a statement dated and received at the RO in June 1993, the veteran requested that the personal hearing be canceled and that his appeal be forwarded to the Board for appellate review. REMAND The veteran in this case has requested that if the Board is unable to grant the benefits sought on appeal on the basis of the record as it currently exits, then he should be afforded a VA examination to determine the existence and the severity of all disabilities. He has also requested assistance in procuring VA medical records which he asserts are supportive of his claim. The Board observes that the RO decision in this case was based on several VA medical records dated between June 1990 and April 1993. Based on these records, the RO determined that the veteran's nonservice-connected disabilities include peptic ulcer disease, low back pain and degenerative disk disease, and atherosclerosis. It was also determined that the veteran's alcohol dependence was the result of the veteran's own willful misconduct. However, in a recent VA Form 21-527 (Income-Net Worth and Employment Statement) forwarded to the Board by the RO, the veteran indicated that he quit his last job on account of disabilities that included a back disorder, emphysema, bronchitis, ulcers, and partial paralysis of the left side. The record reflects that the veteran has not been afforded a VA examination for purposes of the current appeal, and in light of the claim of additional disabilities, the Board has determined that examination is needed to determine the existence and severity of all claimed disabilities. The record also reflects some conflict regarding the veteran's employment history. The veteran had variously reported that he last worked for Clareson or Clarson Industries in Ocala, Florida, as a millwright. However, the dates of his last employment have been variously listed as 1988 and 1990. Further, there is evidence of record that the veteran was employed as recently as March 1992 in an industrial plant. The most recent evidence indicates that the veteran was participating in work therapy through the VA in Mountain Home, Tennessee, and that he was in school. The RO should attempt to procure accurate information regarding the veteran's employment and educational history. As noted above, the veteran has also requested assistance in procuring VA medical records which would support his claim. He reported to the RO that he had received treatment at VA medical facilities in Kerrville, Texas; Biloxi, Mississippi; Mountain Home, Tennessee; and Fort Wayne, Indiana, beginning in 1981 or 1982. Pursuant to this request, in April 1993, the RO attempted to procure records from those facilities dating back six months from the date of the request, with limited success. In a later statement, the veteran indicated that the Ft. Wayne records relate to treatment received approximately in 1974. The dates of treatment at the other facilities are unclear from the record. Further, the veteran indicated in April 1994, that he had been hospitalized at the VA Medical Center in Lake City, Florida, since March 1994. Fulfillment of the duty to assist the appellant includes the procurement and consideration of any relevant VA or other medical records. On remand, the RO should attempt to procure an accurate chronology from the veteran of the dates of treatment at the facilities referenced above. Available records should be associated with the records assembled for appellate 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 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, provide information regarding the dates of treatment, and furnish signed authorizations for release to the VA of private medical records in connection with each non-VA medical source he identifies. A specific request should be made for the dates of treatment for disabilities at issue relating to treatment at VA medical facilities in Kerrville, Texas; Biloxi, Mississippi; Fort Wayne, Indiana; Mountain Home, Tennessee; and Lake City, Florida. 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 request that the veteran provide accurate information regarding his employment, including that at Clareson or Clarson Industries in Ocala, Florida and at an industrial plant in March 1992, as well as information regarding his educational background. Any indicated development should be accomplished including contacting the veteran's last employer for information regarding the termination of that employment. 3. The RO should schedule the veteran for a general medical examination as well as a special orthopedic, cardiovascular, and gastrointestinal examinations 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 emphysema, bronchitis, and partial paralysis of the left side, 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. 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). The RO should identify all disability which is determined to be the result of willful misconduct. 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). 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).