BVA9502192 DOCKET NO. 92-16 697 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to a permanent and total disability rating for pension purposes. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Thomas C. Taylor, Associate Counsel INTRODUCTION Appellant served on active duty from August 1951 to August 1955. This matter originally came before the Board of Veterans' Appeals (Board) on appeal of a September 1991 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) which denied entitlement to a permanent and total disability rating for pension purposes. The Board remanded the case to the RO by a decision dated in April 1993. The RO has recently returned the case to the Board. REMAND The veteran's representative well summarizes the development of the record on remand to date: This case was previously before the Board in April 1993 and was remanded to the originating agency for rather extensive development, to include obtaining treatment records, both private and VA, scheduling the veteran for a social and industrial survey, scheduling several VA examination, and assigning percentage evaluations to several disabilities that had not previously been rated. . . The record reveals that numerous letters were sent to the veteran at various addresses, most of which were returned. The veteran did not report for his examinations, but it is unclear to this representative as to whether he ever received the notices. The file contains VA Form 21-4138 from the veteran dated July 7, 1994. The veteran gave his address at that time as Route 3, Box 9295, Dry Ridge, Kentucky 41035. The veteran's statement is not revealing. We cannot locate any correspondence sent to the veteran at that address. therefore, we feel this case should be remanded once again with instructions to send correspondence to the veteran's most recent address and see if he cooperates. In light of the recent receipt of this new address for the veteran, the Board agrees with the veteran's representative that an additional attempt to contact the veteran is warranted. The veteran is reminded that the VA's duty to assist him is not a one way street; the veteran also has an obligation to assist in the adjudication of his claim. Wood v. Derwinski, 1 Vet.App. 190, 193 (1991). The veteran must be prepared to meet his obligations by cooperating with the VA's efforts to provide an adequate medical examination and submitting to the Secretary all medical evidence supporting his claim. Olson v. Principi, 3 Vet.App. 480 (1992). Moreover, "In the normal course of events, it is the burden of the veteran to keep the VA apprised of his whereabouts. If he does not do so, there is no burden on the part of the VA to turn up heaven and earth to find him." Hyson v. Brown, 5 Vet.App. 262, 265 (1993). The veteran is also reminded that individuals for whom examinations have been authorized and scheduled are required to report for such examinations. 38 C.F.R. § 3.326(a). When entitlement or continued entitlement to a benefit cannot be established or confirmed without a current VA examination or re- examination and a claimant fails to report for such examination or re-examination, the action taken depends upon whether "good cause" was shown for the failure to report and on the nature and purpose of the claim. Examples of "good cause" include, but are not limited to, the illness or hospitalization of the claimant, death of an immediate family member, etc. 38 C.F.R. § 3.655(a) (1993). When the examination was scheduled in conjunction with any original claim other than for compensation, a reopened claim for a benefit which was previously disallowed, or a claim for increase, the claim shall be denied. 38 C.F.R. § 3.655(b) (1993). The veteran's recently submitted VA Form 21-4138 states that he is in receipt of Social Security Administration (SSA) disability benefits. If the record indicates the existence of SSA records, the VA's duty to assist includes seeking to obtain a copy of the SSA decision and the supporting medical records. Waddell v. Brown, 5 Vet.App. 454, 457 (1993). When, during the course of review the Board determines that further evidence or clarification of the evidence or correction of a procedural defect is essential for a proper appellate decision, the Board shall remand the case to the agency of original jurisdiction (the RO) specifying the action to be undertaken. 38 C.F.R. § 19.9. Where the record before the Board is inadequate to render a fully informed decision, a remand to the RO is required in order to fulfill the statutory duty to assist. Ascherl v. Brown, 4 Vet.App. 371, 377 (1993). The Board believes that further development, as specified below, is warranted. See 38 U.S.C.A. § 5107(a). Accordingly, the case is REMANDED to the RO for the following actions: 1. The RO should note the veteran's last known address of record is Route 3, Box 9295, Dry Ridge, Kentucky 41035. Future correspondence should be sent to this address, unless otherwise indicated. 2. The RO should request, through the veteran's representative, that the veteran provide the names and addresses of all health care providers who have treated him for his current disabilities, as well as the approximate dates of such treatment. Then, after obtaining any necessary authorization from the veteran, the RO should request copies of those treatment records not already of record. The requested records should include any clinical notes of treatment. 38 C.F.R. § 3.159. 3. The veteran should be rescheduled for VA examinations of any disabilities which have not thus far been fully evaluated, to include a cardiovascular, ophthalmologic, and medical examination for determining the presence or absence of diabetes and/or setting forth the basis for the findings of a prediabetic condition. All indicated tests should be performed and all clinical findings should be reported in detail. The cardiologist should, after reviewing the claims folder and fully evaluating the veteran, enter a determination as to the veteran's therapeutic classification. The claims folder should be made available to all examiners for review in conjunction with their evaluations. 4. The veteran should be afforded a VA social and industrial survey to ascertain his employment history and current ability to work. Specifically, while the veteran said he "quit" work on June 28, 1990, an official of his former employer, Naccon Limited Partnership (formerly Natico, Inc.) of Florence, Kentucky, should again be contacted to determine the specific reasons and circumstances surrounding the termination of such employment. 5. The RO should ascertain if the veteran is in receipt of SSA disability benefits. If so, the RO should obtain from the SSA a copy of the award determination and copies of any medical reports upon which it based its award of disability benefits to the veteran, as well as copies of any medical records utilized in determining the veteran's continued entitlement to such benefits. 38 U.S.C.A. § 5106 (West 1991); 38 C.F.R.§ 3.201(a). 6. Thereafter, the RO should undertake adjudicatory action to assign percentage disability ratings to all of the disabilities found of record, including but not limited to diverticulitis/irritable bowel syndrome, diabetes or a prediabetic condition, a claimed eye disability and varicose veins. If any change in the evaluations assigned for the veteran's disabilities in prior rating decisions is found to be warranted by the new evidence, or if the veteran is found to have any ratable disability not previously evaluated, a new rating decision should be prepared to ensure that each of his chronic disabilities has been assigned a percentage rating under the appropriate code of the Schedule for Rating Disabilities. Roberts v. Derwinski, 2 Vet.App. 387, 390 (1992). 7. When the foregoing is accomplished, the RO should issue another rating decision discussing the application of the following two alternate tests. The RO should reconsider the veteran's claim and apply the "average person" test set forth in 38 U.S.C.A. § 1502(a)(1) and 38 C.F.R. §§ 3.340(b) and 4.15. If one of the disabilities listed as permanently and totally disabling in 38 C.F.R. § 4.15 is present, or if a total schedular rating is present (whether for a single disability, or as a combined rating) and the disability is permanent, then the average person standard of 38 U.S.C.A. § 1502(a)(1) is met. The RO shall ensure that the decision states clearly that the "average person" standard is the basis for the finding of a permanent and total disability. However, if a total schedular disability is present, but not permanent, the discussion should clearly indicate why the "average person" standard is not met. Talley v. Derwinski, 2 Vet.App. 282 (1992); Brown v. Derwinski, 2 Vet.App. 444 (1992). 8. The RO should then consider the "unemployability" standard of the provisions of 38 C.F.R. § 4.17. Under this criteria, it may be shown that the veteran is unemployable as a result of a lifetime disability. When the percentage requirements of 38 C.F.R. § 4.16 are met, and the disabilities are of a permanent nature, a rating of permanent and total disability will be assigned if the veteran is found to be unable to secure and follow substantially gainful employment by reason of such disability. 38 C.F.R. § 4.17. Note that the reduced percentage requirements based on attaining age 55, 60 or 65 were deleted, effective in December 1991. 56 Fed. Reg. 57964-65 (1991). As the veteran's current pension claim was filed before the change occurred, he is entitled to consideration under the old regulation, the version most favorable to him. Karnas v. Derwinski, 1 Vet.App. 308 (1991). 9. Thereafter, the RO should consider 38 C.F.R. § 3.321(b)(2). A permanent and total disability evaluation for pension purposes may be assigned under 38 C.F.R. § 3.321(b)(2) in the case of a basically eligible veteran who fails to meet the disability percentage requirements, but is found to be unemployable by reason of disability or disabilities, age, occupational background, and other related factors. If the benefit sought on appeal remains denied and the veteran continues to disagree with the decision of the RO, the RO should issue a Supplemental Statement of the Case and should provide the veteran and his representative an opportunity to respond. Then, the RO should return the case to the Board for further consideration, if appropriate. J. F. GOUGH 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).