BVA9503532 DOCKET NO. 93-08 373 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs in Jackson, Mississippi THE ISSUE Entitlement to a permanent and total disability rating for pension purposes. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Auer, Counsel REMAND The veteran served on active duty from August 1969 to June 1971. This appeal arises from a November 1992 rating decision of the Department of Veterans Affairs (VA) Jackson, Mississippi, Regional Office (RO). In that decision, entitlement to a permanent and total rating for pension purposes was denied. The veteran's claim was received by the Board of Veterans' Appeals (Board) in April 1993. Since that time, additional evidence was received in the form of a letter notifying the veteran's congressperson that the Social Security Administration had made a favorable decision in which it found that the veteran was entitled to benefits. This additional evidence was received without a waiver of the veteran's right to have the evidence initially considered by the RO. Any pertinent evidence submitted by the veteran or his representative that is accepted by the Board must be referred to the RO for review and preparation of a supplemental statement of the case, unless his procedural right is waived by the appellant. See 38 C.F.R. § 20.1304(c) (1994). The veteran has not waived his procedural rights and, in view of other necessary developments described below, this claim must be returned to the RO for consideration of the evidence submitted directly to the Board. Additionally, VA has a duty to assist the veteran in the development of facts pertinent to his claim under 38 C.F.R. § 3.103(a) (1994). The United States Court of Veterans Appeals (Court) has held that the fulfillment of the VA's duty to assist the veteran includes the procurement and consideration of Social Security Administration disability determinations. See Waddell v. Brown, 5 Vet.App. 454, 457 (1993). As no records from the Social Security Administration are of record, these records should be obtained before a decision is rendered in this case. During the development of this case by the RO, the Court has decided several cases 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 the 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, 4.7 (1994). The RO's decisions of November 1992 and January 1993 are deficient relevant to each of the points addressed in the above- cited cases. In a statement by the veteran submitted to the RO in January 1993, he claims that he has been treated for severe depression and paranoid schizophrenia at the VA Medical Center in Gulfport, Mississippi. It appears that additional evidence may be available in this case. The Board finds that the actions ordered below are warranted even though the development will further delay entry of a final decision in this appeal. Accordingly, the claim is REMANDED for the following actions: 1. The RO should contact the veteran and ask him to furnish the names and addresses of all medical personnel and facilities from whom he has received treatment. After obtaining the necessary authorization from the veteran, the RO should obtain available records from the named sources, to include any available treatment records from the VA hospitals or medical centers where the veteran has received treatment. Care should be taken by the RO so that duplicate records are not placed in the claims folder. 2. The RO should obtain from the Social Security Administration a copy of any disability determination it has made for the veteran and copies of all medical records upon which any such determination was made. Again, duplicate records should not be placed in the claims file. 3. The RO should schedule the veteran for a general medical examination to assess the nature, severity and manifestations of all disabilities that may be present. It is imperative that the examiners review the entire claims file prior to the examinations. All indicated tests should be conducted and all examinations should contain diagnoses. Each examiner should render an opinion as to what effect the disabilities found have on the veteran's ability to work and state whether the veteran's disabling conditions are susceptible to improvement through appropriate treatment. The factors upon which the opinions are based must be set forth and the effect of pain experienced by the veteran on employability must be commented upon. 4. If the decision remains adverse to the veteran, he should be furnished a supplemental statement of the case that includes a recitation of all the applicable laws and regulations including the percentage rating for each diagnosed disability which cites the appropriate diagnostic codes and provides discussion of their applicability to the veteran's disabilities and which discusses the application of the two standards by which a permanent and total disability rating for pension purposes may be assigned, i.e., the average person standard and the unemployability standard. The appropriate response time should be allowed. The case should then be returned to the Board, if in order, after compliance with all regulatory appellate procedures. No action is required of the veteran until he is so informed. The Board intimates no opinion as to the ultimate decision warranted in this case pending completion of the requested development. ____________________________ WARREN W. RICE, JR. 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) (1994).