BVA9503194 DOCKET NO. 93-13 324 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Huntington, West Virginia 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 Jeffrey A. Pisaro, Counsel REMAND The veteran had active service from March 1953 to July 1956. This appeal arises from a December 1992 rating decision of the Huntington, West Virginia, Regional Office (RO). The duty to assist 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. October 1992 x-rays of the sinuses showed chronic bilateral maxillary sinusitis. Clinical correlation and an ENT examination were recommended. The veteran has complained of headaches, disability of the back, and loss of memory and concentration. The record also shows that he suffers from gout. In view of the foregoing, following the gathering of all medical records, the veteran should be afforded a VA general medical examination and VA orthopedic, ENT and neuropsychiatric examinations. 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 veteran has been receiving ongoing treatment at the Martinsburg VA medical center and he was hospitalized at that facility in March 1992. All recent treatment records should be obtained and associated with the claims file. 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). In this case, not all of the veteran's disabilities have been rated, and it appears that the October 1992 VA examinations were conducted without the examiner having the veteran's records available for review. 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 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 the Martinsburg VA medical center from March 1992 to the present and, once obtained, all records must be associated with the claims folder. 2. Following completion of the above development, the veteran should be afforded a VA general medical examination and VA orthopedic, ENT and neuropsychiatric examinations to determine the nature and extent of all disabilities present. All indicated tests should be accomplished. 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, including any time lost from employment, 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 would 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. 3. 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 the applicable time 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. CHARLES E. HOGEBOOM 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).