BVA9501229 DOCKET NO. 93-10 610 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a permanent and total disability rating for pension purposes. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Jeffrey A. Pisaro, Counsel INTRODUCTION The veteran had active service from November 1952 to September 1954. This appeal arises from a September 1992 rating decision of the St. Petersburg, Florida, Regional Office (RO). REMAND The veteran indicated on the December 1992 substantive appeal that he had been awarded Social Security Administration (SSA) disability benefits in November 1992; however, the decision granting benefits and the medical records upon which that decision was based are not of record. Masors v. Derwinski, 2 Vet.App. 181 (1992), mandates that the Department of Veterans Affairs (VA) must obtain a SSA decision which grants disability benefits and the medical records upon which it was based. VA has a duty to assist the veteran in the development of facts pertaining to his claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.103(a) (1993). The United States Court of Veterans Appeals (Court) has held that the duty to assist includes obtaining available records which are relevant to the claimant's appeal. The duty to assist is neither optional nor discretionary. Littke v. Derwinski, 1 Vet.App. 90 (1990). The record shows that the veteran had heart bypass surgery in 1992; however, the hospital records and post surgery treatment records have not been obtained. Cancer of the neck was diagnosed in late 1992. In May 1994, the veteran indicated that throat surgery had been performed in August 1993, and that radiation therapy had caused bilateral hearing loss. Complete medical records must be obtained to fully and fairly evaluate the veteran's claim. The duty to assist also includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the veteran that takes into account the records of prior medical treatment. Green v. Derwinski, 1 Vet.App. 121 (1991). This is to ensure that the evaluation of a disability is a fully informed one. Following the gathering of all medical records, the veteran should be afforded a VA general medical examination and VA cardiology and oncology examinations. Several cases have been decided by the Court which impact significantly upon claims for non-service connected pension benefits. In Roberts v. Derwinski, 2 Vet.App. 387 (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, and that a rating decision may not be based on an examination which was conducted before all relevant evidence was gathered. In Brown v. Derwinski, 2 Vet.App. 444 (1992), the Court held that a pension claim must be considered under both the average person, 38 U.S.C.A. § 1502(a) (West 1991); 38 C.F.R. § 4.15 (1993), and the unemployability standards, 38 C.F.R. §§ 3.321, 4.17 (1993). Complete development in conformity with the points addressed above in Roberts and Brown should be accomplished. Moreover, VA has a duty to acknowledge and consider all regulations which are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusion. Schafrath v. Derwinski, 1 Vet.App. 589 (1991). Under the circumstances of this case, the Board finds that further assistance is required. Accordingly, the case is REMANDED to the RO for the following actions: 1. The RO should contact the SSA and obtain legible copies of the decision which granted disability benefits to the veteran and the medical records upon which that decision was based. All records, once obtained, must be associated with the claims folder. 2. The RO should contact the veteran and obtain the names and addresses of all health care providers where he has received treatment in recent years. Thereafter, the RO should obtain legible copies of all records which have not already been obtained to include those from West Florida Regional Medical Center from December 1992 to the present, and in particular, all inpatient and outpatient records pertaining to neck cancer and heart disability. Once obtained, all records must be associated with the claims folder. 3. Following completion of the above developments, the veteran should be afforded a VA general medical examination and VA cardiology and oncology examinations to determine the nature and extent of all disabilities present. All indicated tests should be accomplished, and it is imperative that the physicians review the entire claims folder prior to the examinations. All disabilities should be evaluated in relation to their history, with emphasis upon the limitation of social and industrial activity imposed by the disabling conditions in light of the whole recorded history 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 medical opinions are based must be set forth. 4. When the above developments have been completed, the case should again be reviewed by the RO and a rating action prepared which lists all of the veteran's disabilities and the percentage evaluation assigned each disability. If the decision remains adverse to the veteran, he and his representative should be furnished with a supplemental statement of the case which includes a recitation of the percentage rating for each diagnosed disability; which cites the appropriate diagnostic codes and provides a discussion of their applicability to the veteran's disabilities; and which discusses the application of the two standards (average person and unemployability under 38 U.S.C.A. § 1502(a) (West 1991); 38 C.F.R. §§ 3.321, 4.15, and 4.17 (1993)) by which a permanent and total disability rating for pension purposes may be assigned. They should then be afforded a reasonable opportunity to respond. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if appropriate. The veteran need take no action until he is further informed. The purpose of this REMAND is to obtain additional information and to ensure due process of law. No inference should be drawn regarding the final disposition of the claim as a result of this action. 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 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) (1993).