BVA9500426 DOCKET NO. 93 01 294 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to a permanent and total disability rating for pension purposes. 2. Entitlement to increased (compensable) ratings for residuals of an injury to the right great toe and chalazion of both upper eyelids. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R. T. Jones, Counsel INTRODUCTION The veteran served on active duty from April to November 1970. This matter comes to the Board of Veterans' Appeals (Board) from decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which denied the veteran's claims for a permanent and total disability rating for pension purposes, and for increased (compensable) ratings for residuals of an injury to the right great toe and chalazion of both upper eyelids. REMAND The veteran's claim for a permanent and total disability rating for pension purposes is well grounded, meaning not inherently implausible, and the file indicates there is a further VA duty to assist him in developing the facts pertinent to that claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. §§ 3.103(a), 3.159 (1993). Murphy v. Derwinski, 1 Vet.App. 78 (1990); Littke v. Derwinski, 1 Vet.App. 90 (1990); Murincsak v. Derwinski, 2 Vet.App. 363 (1992). Documents on file indicate the veteran is receiving Social Security Administration (SSA) disability benefits. Medical records used by the SSA in making the disability award are not contained in the veteran's VA claims file. These records are relevant to the VA pension claim, and should be obtained and considered. Murincsak, supra. It appears that the veteran has been receiving ongoing treatment while his claim has been pending on appeal; these records should be obtained. Murincsak, supra. After the case was sent to the Board, the RO forwarded records of an August 1993 VA psychiatric hospitalization. This evidence needs to be reviewed by the RO and, if the pension claim remains denied, made the subject of a supplemental statement of the case. 38 C.F.R. § 20.1304(c). As the veteran's last VA pension examination is over three years old, and a neurological evaluation was recommended, but not performed, to evaluate a possible seizure disorder, a current examination is warranted. See Caffrey v. Brown, 6 Vet.App. 377 (1994); Green v. Derwinski, 1 Vet.App. 121 (1991). The United States Court of Veterans Appeals (Court) has set forth analytical criteria for the VA to follow in evaluating a claim for pension benefits. These criteria were set forth in several decisions of the Court. See, e.g., Talley v. Derwinski, 2 Vet.App. 282 (1992); Roberts v. Derwinski, 2 Vet.App. 387 (1992); and Brown v. Derwinski, 2 Vet.App. 444 (1992). The RO should apply these criteria to the veteran's pension claim. In light of all of the above, the case is REMANDED for the following: 1. The RO should contact the SSA and obtain copies of all medical and other records considered in awarding SSA disability benefits, as well as a copy of the SSA decision awarding such benefits. 2. The RO should secure all the veteran's VA treatment records since 1991. The RO should also ask the veteran to identify (names, addresses, dates) all sources of non-VA medical treatment since 1991; the RO should obtain the related records in accordance with 38 C.F.R. § 3.159. 3. The RO should have the veteran undergo special VA psychiatric, neurological, and general medical examinations to ascertain the nature and severity of all disabilities related to his claim for VA pension benefits. The examiners should indicate the severity of the conditions and the degree of functional impairment resulting therefrom. With respect to each examination, all indicated tests should be performed and the claims folder must be made available to the examiner prior to the examination. 4. The RO should contact the veteran and ask that he complete a current VA Form 21- 527 to include full information regarding any recent employment. 5. The RO should then review the claim for a permanent and total disability rating for pension purposes, considering the criteria discussed in the cited Court decisions. In brief, the RO should make a new rating decision which clearly identifies each disability and assigns a specific percentage rating for each disability under a specific diagnostic code; and the RO should apply both the objective ("average person") and subjective ("unemployability") tests when deciding whether the veteran is permanently and totally disabled. If the RO denies the pension claim, a supplemental statement of the case should be provided to the veteran and his representative and they should be given an opportunity to respond. The case should then be returned to the Board for review. Appellate action on the increased rating claims is deferred pending return of the case to the Board. L. W. TOBIN 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 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).