BVA9508412 DOCKET NO. 93-16 616 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to a permanent and total disability rating for pension purposes. ATTORNEY FOR THE BOARD S. L. Kennedy, Counsel INTRODUCTION The veteran served on active duty from October 1963 to September 1965. This appeal arises from a November 1992 rating decision of the Department of Veterans Affairs (VA), Waco, Texas, Regional Office (RO). In that decision, the RO denied the veteran's claim of entitlement to a permanent and total disability rating for pension purposes. The Board of Veterans' Appeals (Board) notes that the veteran was to be scheduled for a personal hearing before a member of the Board to be held at the RO in August 1993; however, the record contains a written statement from the veteran indicating that he would be unable to attend such a hearing. REMAND The Board notes that several cases have been decided by the United States Court of Veterans Appeals (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 (1994). In this regard, the record on appeal reflects that service connection is in effect for residuals of excision of a sebaceous cyst of the right side of the face, assigned a noncompensable evaluation. The record reflects further that the RO has identified the veteran's sole nonservice-connected disability as residuals of a fracture of the right superior and inferior rami of the pubis and separation of the symphysis pubis, assigned a 20 percent disability rating. However, the Board notes that the record on appeal also contains numerous VA outpatient treatment records dated over several years reflecting ongoing treatment for additional nonservice-connected disabilities which have not been rated and assigned disability percentages by the RO. The Board notes that the VA has a duty to assist a claimant in the development of facts pertinent to his or her claim under 38 C.F.R. § 3.103(a) (1994). The Court has held that fulfillment of the VA's duty to assist the veteran includes providing him with a thorough and contemporaneous medical examination. Littke v. Derwinski, 1 Vet.App. 90, 92 (1990). The record includes a notation that the veteran failed to report for a VA examination which was scheduled in April 1993 in order to evaluate all of the veteran's nonservice-connected disabilities. However, the Board notes that failure of the veteran to report for the examination in this case does not necessarily relieve the RO from identifying and rating each nonservice-connected disability particularly as the record contains extensive VA outpatient treatment records which the RO could utilize to identify and evaluate the veteran's disabilities if determined to be adequate for rating purposes. Thus, the Board has determined that the RO should afford the veteran a VA examination for rating purposes, stressing the importance of his reporting for such examination, and include in the record, evidence regarding the notice provided to the veteran regarding the place and date of the scheduled examination. Thereafter, the RO should accomplish complete development in conformity with the points addressed in Roberts and Brown. Fulfillment of the duty to assist the appellant includes the procurement and consideration of any relevant VA or other medical records. Ferraro v. Derwinski, 1 Vet.App. 326 (1991). As noted above, the record reflects that the veteran has received ongoing medical treatment at the Lubbock, Texas, VA Satellite Outpatient Clinic. The RO should ensure that all available treatment records from that facility are associated with the assembled records. The record on appeal also reflects that the veteran reported in the VA Form 21-527 (Income-Net Worth and Employment Statement) received in June 1992 that he attempted to work in 1990 and in 1992, with two different companies. The RO should contact those employers and request information regarding the circumstances surrounding the termination of the veteran's employment. 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 obtain any available treatment records of the veteran from the Lubbock, Texas, VA Satellite Outpatient Clinic, dated from July 1992 through the present. 2. The RO should contact the Fabit Company as well as American Trailer Company where the veteran worked in 1990 and 1992, respectively, as reported by the veteran in the VA Form 21-527 (Income-Net Worth and Employment Statement) received in June 1992, and request 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 examination to assess the nature, severity, and manifestations of all disabilities that may be present. The claims file should be made available to the examiners prior to the examinations. All complaints should be investigated and those which have a medical cause should be covered by a definite diagnosis to include arthritis of both the lower and upper extremities, hemorrhoids, bradycardia, shortness of breath, chest pain, headaches, hyperlipidemia, a psychiatric disorder, and alcohol dependence. Appropriate laboratory work, X-rays, and consultations should be obtained when necessary. 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. The RO should identify all disabilities determined to be the result of the veteran's willful misconduct. 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) (1994). 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 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. E. M. KRENZER 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 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) (1994).