92 Decision Citation: BVA 92-25517 Y92 BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 DOCKET NO. 91-52 630 ) DATE ) ) ) ISSUES 1. Entitlement to service connection for an allergy, skin condition. 2. Entitlement to a permanent and total disability rating for pension purposes. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Margaret L. Peak, Associate Counsel INTRODUCTION The veteran had active service from February 1969 to February 1971. This matter came before the Board on appeal from an April 1991 decision of the St. Petersburg, Florida regional office (RO). The notice of disagreement was received on June 28, 1991. The statement of the case was issued on August 5, 1991. The substantive appeal was received on October 2, 1992. The appeal was received at the Board on December 31, 1991, and docketed on January 8, 1992. The veteran is represented in this matter by the American Legion, and that organization submitted additional written argument to the Board on March 30, 1992. In his substantive appeal, the veteran appears to claim that exposure to Agent Orange while in Vietnam was a cause of present disabilities. Issues of disability due to such exposure have been held in abeyance pending the adoption of new regulations. 38 C.F.R. § 3.311(a) was promulgated effective October 15, 1991. It is subject to amendment in the future but at this time does not list the disorders apparently claimed by the veteran as associated with Agent Orange exposure. Until the regulation is amended to cover such disorders, further adjudication of this aspect of his claim must be deferred. REMAND There is some confusion as to what exactly the veteran is claiming. His original claim was received in November 1990, and lists his disabilities as an ulcer on his leg, poor circulation in both legs and high blood pressure. On the claim form, the only treatment he alleges while in service is for an allergy and a skin disorder. The RO construed this to be a claim for service connection for allergy, skin condition, as well as for a permanent and total disability rating for pension purposes. Both claims were denied in the decision herein appealed. In support of his claim, the veteran submitted discharge summaries from hospitalizations in October 1990, and February 1991. These show primary diagnoses of chronic venous stasis ulcers and peripheral vascular disease in October 1990; and a bladder stone, with secondary diagnoses of hypertension and pyelonephritis in February 1991. He also submitted outpatient treatment reports from July 1989 to April 1991. These show treatment for bilateral venous stasis ulcers, varicose veins and hypertension. The RO also considered the veteran's service medical records, which show that at the time of his pre-induction examination, in May 1968, he gave a history of swollen painful joints, mumps, leg cramps and high blood pressure. He was then on no medication for hypertension, and his blood pressure reading was 138/80. He was found qualified for induction. In October 1969, he complained of headaches and was found to have a blood pressure reading of 140/94. In the next two months readings were taken of 142/102, 138/96, 140/110, and 140/100. In December, the reading was 140/90, and he had no complaints. He was apparently not seen further for hypertension, and the blood pressure reading at the time of his separation examination in February 1971 was 120/80. In September and October 1970, he was seen for pseudofolliculitis. In the rating action of April 1991, the RO denied service connection for allergies and for a skin condition, which was determined to have been acute and transitory in service. The RO rated his non-service connected disorders as 30 percent for chronic venous stasis, lower extremities; 10 percent for status post removal, bladder stone; and no percent for hypertension. With a combined disability rating of 40 percent, the veteran did not meet the criteria of 38 C.F.R. § 4.17 (1991) for entitlement to pension. In his notice of disagreement, the veteran stated that further records of treatment for a skin disorder were available from a Department of Veterans Affairs (VA) medical center. He also pointed out that he had not been given a VA examination for pension purposes. In his substantive appeal, received October 2, 1991, the veteran stated that the relief he sought was not for an allergy reaction in service, but for his present vascular disorder, which, he stated, had existed for over ten years. He reiterated his claim to be unemployable by virtue of the disorder. On October 15, 1991, the veteran's representative amended the veteran's claim to include service connection for hypertension and a kidney disorder. A letter was sent, notifying the veteran that arrangements were being made to have him examined. There is nothing in the file to indicate whether this examination took place. We bring this matter to the attention of the RO for appropriate action. In order to complete the record, the Board is of the opinion that further development is desirable. The case is therefore REMANDED for the following action: 1. The RO should acquire the most recent outpatient treatment reports referred to by the veteran in his notice of disagreement. Forthcoming records should be associated with the claims folder. 2. If a VA examination for pension purposes has been conducted, the report of that examination should be considered in evaluating the veteran's eligibility for non-service connected pension. If no such examination has taken place, one should be scheduled in order to properly assess the degree of disability caused by each of the veteran's disorders. When this development has been completed, the claim should be reviewed by the RO. The United States Court of Veterans Appeals has recently issued several decisions pertinent to the adjudication of pension cases. See, e.g., Roberts v. Derwinski, 2 Vet.App. 444 (1992) and Brown v. Derwinski, 2 Vet.App. 387 (1992). The holdings of these decisions require, inter alia, that all disabilities receive rating evaluations, and that, when the percentage requirements of pension are not met thereby, the employability of the veteran be assessed in relation to his existing disabilities. Evaluation of employability is to be made both under the "average person" test, found in 38 U.S.C.A. § 1502(a)(1) (West 1991); 38 C.F.R. § 4.15, as well as under the more objective criteria found in § 4.17. Further, if the veteran fails to meet the percentage requirements of § 4.16, then § 3.321(b)(2) must be applied to determine whether he may be unemployable by reason of disability, age, occupational background or other related factors. If, following this review, the benefit sought on appeal is not granted, the appellant and his representative should be given a supplemental statement of the case with regard to the additional development and should also be afforded an opportunity to respond. The supplemental statement of the case should include the appropriate Diagnostic Codes and a discussion of their applicability to the veteran's disabilities, as well as a discussion of the two standards by which a permanent and total disability rating for pension may be assigned. These standards may by found at 38 U.S.C.A. §§ 1502(a), 1521(a), and implementing regulations. The record should be returned to the Board for further appellate consideration, if in order. No action by the appellant or his representative is required until further notice is received. BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 ANTHONY FAVA CHARLES E. EDWARDS, M.D. H. H. CLARK NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266, a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision. The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.