Citation Nr: 0003573 Decision Date: 02/11/00 Archive Date: 02/15/00 DOCKET NO. 95-18 664 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to a permanent and total disability rating for pension purposes. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Robert C. Scharnberger, Associate Counsel INTRODUCTION The appellant served on active duty from October 1974 to October 1977. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a February 1995 rating decision of the Montgomery, Alabama, Department of Veterans Affairs (VA) Regional Office (RO). FINDINGS OF FACT 1. The appellant served on active duty for more than 90 days during a period of war and was honorably discharged. 2. VA Treatment records indicate that the appellant has been unemployed since 1994, and has multiple medical disabilities that may be permanent and productive of unemployability. 3. The evidence of record indicates that the appellant has no current income. CONCLUSION OF LAW The claim of entitlement to a permanent and total disability rating for pension purposes is well grounded. 38 U.S.C.A. §§ 1521, 5107 (West 1991); 38 C.F.R. §§ 3.3, 3.314 (1999); Vargas-Gonzalez v. West, 12 Vet. App. 321 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION In Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997), cert. denied sub nom. Epps v. West, 118 S. Ct. 2348 (1998), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that, under 38 U.S.C. § 5107(a), the Department of Veterans Affairs (VA) has a duty to assist only those claimants who have established well grounded (i.e., plausible) claims. More recently, the United States Court of Appeals for Veterans Claims (the Court) issued a decision holding that VA cannot assist a claimant in developing a claim which is not well grounded. Morton v. West, 12 Vet. App. 477 (1999). Once a claimant has submitted evidence sufficient to justify a belief by a fair and impartial individual that a claim is well-grounded, the claimant's initial burden has been met, and VA is obligated under 38 U.S.C. § 5107(a) to assist the claimant in developing the facts pertinent to the claim. Accordingly, the threshold question that must be resolved in this appeal is whether the appellant has presented evidence that the claim is well grounded; that is, that the claim is plausible. A claim for non-service connected pension benefits is well grounded if the following criteria are met: (1) there is evidence of honorable active military service of 90 days or more during a period of war (or discharge or release from service during a period of war for a service-connected disability); (2) there is evidence of permanent and total disability productive of unemployability; and (3) there is evidence of income that does not exceed the statutory limit. Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); see also 38 U.S.C. § 1521 (West 1991); 38 C.F.R. § 3.3 (1999). For purposes of determining whether a claim is well grounded, the supporting evidence is presumed to be true and is not subject to weighing. See King v. Brown, 5 Vet. App. 19, 21 (1993). The appellant served on active duty for more than 90 days (beginning in October 1974) during a period of war (Vietnam era) and his service was honorable. The appellant has stated that he has no current income, and his family's current income is $249.10 per month from his wife's Social Security. See Income, Net-Worth and Employment Statement of January 19, 1995. VA treatment records from 1986 through 1996 reflect that the appellant has been unemployed since June 1994, and has complained of pain, left and right knee problems, back pain, a fractured right heel and a fractured right tibia. His back pain has been diagnosed as chronic lumbosacral muscle strain. Presuming all this evidence as true, and weighing it for the purpose of finding a claim to be well grounded, the Board concludes that the appellant's claim is well grounded. King v. Brown, 5 Vet. App. 19 (1993). ORDER The claim of entitlement to nonservice-connected pension benefits based on permanent and total disability is well grounded. To this extent only, the appeal is granted. REMAND Because the claim of entitlement to non-service connected pension benefits based on permanent and total disability is well grounded, VA has a duty to assist the appellant in developing facts pertinent to the claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.159 (1999); Murphy v. Derwinski, 1 Vet. App. 78 (1990). Despite the best efforts of the regional office, the Board finds that this case is not yet ready for appellate review. Specifically, it having been almost 5 years since the appellant's last VA examination, the RO is instructed to provide the appellant with a comprehensive medical examination. This examination should address all potentially disabling conditions suffered by the appellant, including but not limited to, back pain, bulging disc, knee pain, residuals of right heel fracture, residuals of right tibia fracture, and any other condition that may be present and potentially disabling. It is not altogether clear if he currently suffers from one or more of these conditions, but given his complaints, and the time span since the last examination, further examination is warranted to rule out the presence of the aforementioned disabilities and if present, to determine the disabling effect of the condition(s). Well-settled judicial precedent holds that in a situation as is presented by the facts in this case, a remand for a new examination is in order to render a new rating decision that accurately identifies the percentage of impairment attributable to each specific disability shown by the evidence of record including any effect on employability. See Roberts v. Derwinski, 2 Vet. App. 387, 390 (1992). Accordingly, the Board concludes that there must be a new examination in order that the adjudication may be a fully informed one. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (duty to assist may include "the conduct of a thorough and contemporaneous medical examination, one which takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one"). Accordingly, further appellate consideration will be deferred and the case is REMANDED to the RO for the following development: 1. The appellant should be requested to identify all sources of recent treatment received for his nonservice-connected disabilities, and to furnish signed authorizations for release to the VA of private medical records in connection with each non-VA source he identifies. Copies of the medical records from all sources he identifies, including VA records (not already in the claims folder), should then be requested. All records obtained should be added to the claims folder. 2. Next, the RO should schedule the appellant for a comprehensive VA examination and special orthopedic examination to ascertain the nature, severity and permanence of all his current disabilities. The appellant's claims folder is to be made available to the examiner for review prior to the examination, and the examiner should be asked to indicate in the examination report whether he or she has reviewed to claims folder. All indicated tests including x-rays, if necessary, are to be done and the examiner should review the results of any testing prior to completion of the report. Specifically, the examiner should describe the level of disability attributable to each one of the medical conditions found on examination. The examiner should describe any functional limitation due to pain, including whether additional functional limitation is likely to result on use or during flare-ups. The examiner should give a full description of any limitation of activity imposed by each of the appellant's disabilities and express opinions as to whether the conditions are permanent, and the degree of interference with the appellant's ability to obtain and maintain gainful employment caused by each disability identified on examination. The examiner should also state whether the appellant's disabling conditions are susceptible of improvement through appropriate treatment. The examiner must provide complete rationale for all conclusions reached. 3. The RO should review the claims folder and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. 38 C.F.R. § 4.2 (1999); see also Stegall v. West, 11 Vet. App. 268 (1998). 4. After completion of the above, the RO should readjudicate the issue of entitlement to a permanent and total disability evaluation for pension purposes, with application of all appropriate laws, regulations and diagnostic codes (as amended), and with consideration of any additional information obtained as a result of this remand, including the report of the VA examination. The RO should consider each of the appellant's ratable disabilities with application of the appropriate diagnostic codes in the Schedule for Rating Disabilities to determine the percentage of impairment caused by each disability. In evaluating any degree of disability of any reported musculoskeletal disorder, the RO must consider whether there is functional loss due to pain, under 38 C.F.R. §§ 4.40 and 4.45 (1999). See Deluca v. Brown, 8 Vet. App. 202 (1995). The RO should consider whether the appellant meets the criteria provided under 38 U.S.C.A. §§ 1502(a)(1), 1521(a) (West 1991); 38 C.F.R. §§ 3.321(b)(2), 4.15, 4.16, 4.17, 4.25 (1999), as well as the decisions reached in Talley v. Derwinski, 2 Vet. App. 282 (1992); Brown v. Derwinski, 2 Vet. App. 444 (1992); and Roberts, supra. If the appellant does not meet the percentage requirements, a permanent and total evaluation for pension purposes should be considered under 38 C.F.R. § 3.321(b)(2) (1999). In deciding the appellant's claim, the RO should consider carefully and with heighten mindfulness the benefit of the doubt rule. 38 U.S.C.A. § 5107(b). If the evidence is not in equipoise the RO should explain why. See Cartwright v. Derwinski, 2 Vet. App. 24, 26 (1991). 5. If the above determination remains adverse to the appellant, he and his representative should be provided a supplemental statement of the case which summarizes the pertinent evidence, fully cites the applicable legal provisions, and reflects detailed reasons and bases for the decision reached. Thereafter, the veteran and his representative should be afforded the opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if otherwise in order. By this REMAND the Board intimates no opinion, either factual or legal, as to the ultimate determination warranted in this case. No action is required of the veteran until he receives further notice. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). The purpose of the examinations requested in this remand is to obtain information or evidence (or both) which may be dispositive of the appeal. Therefore, the veteran is hereby placed on notice that pursuant to 38 C.F.R. § 3.655 (1999) failure to cooperate by attending the requested VA examinations may result in an adverse determination. See Connolly v. Derwinski, 1 Vet. App. 566, 569 (1991). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. A. BRYANT Member, Board of Veterans' Appeals