BVA9500471 DOCKET NO. 92-18 152 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to a permanent and total disability rating for pension purposes. REPRESENTATION Appellant represented by: Charles L. Kincade, Attorney ATTORNEY FOR THE BOARD Jeffrey A. Pisaro, Counsel INTRODUCTION The veteran had active service from November 1973 to September 1975. This appeal arises from a July 1991 rating decision of the New Orleans, Louisiana, Regional Office (RO). The case was remanded by the Board of Veterans' Appeals (Board) to the RO in March 1993 for additional development of the evidence and for due process reasons. REMAND The veteran contends that the RO erred by failing to grant the benefit sought on appeal. On VA Form 21-527, income-net worth and employment statement, submitted in August 1991, the veteran indicated that he was in receipt of Social Security Administration (SSA) disability benefits; however, the decision granting benefits and the records upon which that decision was based have not been obtained. Masors v. Derwinski, 2 Vet.App. 181 (1992), mandates that the Department of Veterans Affairs (VA) must obtain a SSA decision which awards disability benefits and the records upon which it was based. In addition, it is noted that pursuant to the previous Remand, development was requested which included a physical examination and information concerning treatment received by the veteran in recent years. The veteran never responded to the letter requesting information and authority to obtain records of recent medical treatment. Moreover, while part of the examination was done, it is indicated that the veteran did not report for other examinations which had been scheduled. Recent correspondence from the veteran's attorney suggests that he had been informed that the development had been accomplished and he asked to be advised if additional information was needed. 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, that a rating decision may not be based on an examination which 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 (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 must be implemented by the RO. 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: 1. The RO should contact the SSA and obtain a copy of the decision which awarded disability benefits to the veteran, the records upon which that decision was based, as well as any other records regarding the veteran's employability. Once obtained, all records must be associated with the claims folder. 2. The RO should contact the veteran's attorney and inform him of the veteran's failure to complete the examination process or to provide information concerning medical providers. He should also be advised of the need for the veteran to express his willingness to report for an examination. In the event, that the veteran does express his willingness to cooperate, the RO should see to it that the examination which began in May 1993 is completed as indicated in the Board's prior Remand in March 1993. 3. When the requested development has been completed, the case should 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 in any way, he and his representative should be furnished a supplemental statement of the case which includes a recitation of the percentage rating for each 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. The veteran and his representative should be given an opportunity to respond. Thereafter, subject to current appellate procedures, the case should be returned to the Board. 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 outcome of the claim as a result of this action. C. W. SYMANSKI 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. (Continued Next Page) 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) (1993).