92 Decision Citation: BVA 92-18671 Y92 BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 DOCKET NO. 92-00 068 ) DATE ) ) ) THE ISSUE Entitlement to a permanent and total disability rating for pension purposes. ATTORNEY FOR THE BOARD K. J. Spindler, Counsel INTRODUCTION The veteran is the appellant in this case. He had active military service from March 1968 to March 1970. This case came before the Board of Veterans' Appeals (hereinafter the Board) on appeal from a February 1991 rating decision of the Montgomery, Alabama Regional Office (RO) of the Department of Veterans Affairs (VA), of which the veteran was promptly mailed notice. The veteran's notice of disagreement was received later in February 1991. It was submitted to the RO by his representative organization at that time, the Alabama Department of Veterans Affairs. The RO issued a statement of the case in March 1991. The veteran's substantive appeal was received later in March 1991. Additional medical evidence was subsequently added to the record (the veteran's VA claims folder). In a June 1991 rating decision the RO again denied the veteran a permanent and total disability rating for pension purposes. The RO issued a supplemental statement of the case in July 1991. After additional medical evidence was added to the record, the RO confirmed the denial of the benefit sought on appeal in an October 1991 rating decision. In November 1981 the RO issued another supplemental statement of the case. The VA received notice from the veteran, posted in late October 1991, that he had moved from the State of Alabama to Jacksonville, Florida. His VA claims folder was thereupon transferred to the St. Petersburg, Florida VA RO, where it was received in November 1991 (after the Montgomery, Alabama RO issue the supplemental statement of the case). The case was received at the Board in Washington, D.C. in February 1992. Because the veteran no longer resides in the state (Alabama) in which his last-designated representative organization has jurisdiction, he currently acts as his own representative in this case. However, this matter will be discussed further below. REMAND At the outset the Board finds that the veteran's contention of permanent and total disability constitutes evidence of a "well-grounded" claim, within the meaning of 38 U.S.C. § 5107(a) (1992). That is, this contention is not implausible and if it is supported by sufficient clinical evidence the benefit sought on appeal could be granted. In the aforementioned June 1991 rating decision the Montgomery, Alabama RO determined that the veteran's nonservice-connected disabilities were as follows: Schizophrenia, paranoid type, evaluated as 50 percent disabling under Code 9203 of the VA's Schedule for Rating Disabilities (Rating Schedule); hypertension, rated as 10 percent disabling under Code 7101 of the Rating Schedule; and residual of right ankle sprain, rated at zero percent under Code 5271 of the Rating Schedule. The combined evaluation for his service-connected disabilities was found to be 60 percent. The veteran does not have any adjudicated, service-connected disabilities. The record shows that entitlement to a permanent and total disability rating for pension purposes was denied by the VA prior to February 1991. The veteran timely filed a notice of disagreement after he was notified of an August 1988 rating decision wherein that benefit was denied, and a statement of the case was duly issued in September 1988. A substantive appeal was not received by the VA within one year of the notice of the August 1988 rating decision. Therefore, the August 1988 denial of a permanent and total disability rating for pension purposes became final on the basis of the evidence on file at the time of that rating action, in the absence of clear and unmistakable error. 38 U.S.C. § 7105(d)(3) (1992); 38 C.F.R. § 3.104(a) (1991); 57 Fed. Reg. 4,113 (1992) (to be codified at 38 C.F.R. § 20.302(b)); 57 Fed. Reg. 4,126 (1992) (to be codified at 38 C.F.R. § 20.1103). Submission of "new and material" evidence is necessary to reopen the previously disallowed claim. 38 U.S.C. § 5108 (1992); 38 C.F.R. § 3.156(a) (1991); Abernathy v. Derwinski, U.S. Vet. App. No. 90-1068 (May 20, 1992). Relative to the veteran's potential eligibility for pension benefits, the Board finds it clear that the medical and psychiatric examination reports which have been added to the record in connection with the veteran's current application to reopen his claim for pension benefits are both "new" and "material." That is, this recent clinical evidence contains information probative of the nature and current severity of the veteran's disabilities which, when viewed in the context of all of the evidence on file, establishes a reasonable possibility that it will change the outcome of the case. Colvin v. Derwinski, 1 Vet.App. 171 (1991), at 174. As such, the veteran's claim for pension benefits is found to have been reopened. His entitlement to a permanent and total disability rating for pension purposes must be considered on a de novo basis. Manio v. Derwinski, 1 Vet.App. 140 (1991). The Board notes that the Montgomery, Alabama RO's June 1991 rating action appears to be consistent with this conclusion. However, the Board notes that the veteran is reported to have been receiving Social Security disability benefits since May 1984. VA Form 21-527 dated January 30, 1991. Further, the veteran has made specific contentions about the information "[t]he doctors" furnished the Social Security Administration (SSA), namely, that he had a "dead nerve or cell" in his brain. VA Form 1-9 dated March 20, 1991. A photocopy of his Social Security benefit check issued December 31, 1987 shows that he had a representative payee for Social Security benefit purposes. None of the clinical records on file indicate that they were obtained or considered by the SSA, and the VA is not shown to have contacted the SSA for any evidence. In the case of Masors v. Derwinski, 2 Vet.App. 186-187, 189 (1992), the United States Court of Veterans Appeals (Court) held that the VA's duty to assist a claimant for pension benefits in receipt of Social Security disability insurance benefits extends to ensuring that the VA has considered all "records of the SSA regarding the veteran's continuing rating of unemployability for Social Security purposes." Also, on review of the medical evidence on file the Board notes that there may be additional, recent clinical evidence available to help support the veteran's contentions. On the VA examination in May 1991 the veteran was reported to have been last hospitalized for psychiatric care in February 1991, at "Northeast Regional Hospital in Decatur," and to be receiving ongoing outpatient care through the "Winston County Mental Health Center." In a statement submitted in January 1991, Nunilon U. Thomas, M.D., indicated that the veteran was receiving outpatient psychiatric care at "Northwest Alabama Mental Health Center," located in Haleyville, Alabama. We note that Haleyville, Alabama is located in Northwest Alabama, in Winston County. Decatur, Alabama is located in north-central Alabama. A 1991 directory published by the American Hospital Association lists a "Northeast Alabama Regional Medical Center" in Anniston, Alabama (mailing address -- Post Office Box 2208, Anniston, Alabama 36202), but no facility with a similar name in Decatur, Alabama. No "Northwest Alabama Regional Medical Center" or facility with a similar name is listed in the directory. In light of the foregoing, the Board finds that development of additional evidence is needed in order to ensure that the VA has fulfilled its duty to assist the veteran in connection with this appeal. Additional procedural action by the RO will also be necessary, as a result of several other recent decisions of the Court. Consequently, the case is hereby REMANDED to the RO for the following actions: 1. In view of the fact that the veteran no longer resides in Alabama and is therefore no longer represented by the Alabama Department of Veterans Affairs, he should be given an opportunity to appoint another representative to assist him in his appeal. 2. In accordance with M21-1, Part III, § 9.01 (Authorization and Clerical Procedures to Veterans Benefits Manual M21-1, Adjudication Procedures...), the Division of Benefit Services, Office of Disability Operations [formerly Bureau of Disability Insurance], Social Security Administration, Security West Tower Building, 1500 Woodlawn Drive, Baltimore, Maryland 21241, should be contacted and requested to furnish photocopies of the complete medical and/or psychiatric records which SSA has on file, based upon which it has determined that the veteran is "disabled" and in need of a representative payee. 3. The veteran should be requested to clarify the name and address of the hospital in which he received inpatient psychiatric care during February 1991, and to report all medical and/or psychiatric care he has received since August 20, 1991. He should also be requested to furnish signed authorizations for release to the VA of medical records from each non-VA source he may identify, to include Northwest Alabama Mental Health Center, 1610 11th Avenue, Haleyville, Alabama 35565. Photocopies of the veteran's complete medical records from all identified sources should then be requested. All medical records obtained should be added to the veteran's VA claims folder. 4. Thereafter, if any further medical and/or psychiatric examinations of the veteran are found to be warranted by the RO, they should be carried out. In the event that any examinations are ordered, the veteran's VA claims folder should be made available to each examiner prior to the examination(s), so each examiner is able to review the records of the veteran's pertinent medical history, treatment, and examinations prior to examining him. 5. If any change in the evaluations assigned for the veteran's disabilities in the June 1991 rating decision is warranted by the new evidence, or if the veteran is found to have any ratable disability not evaluated in June 1991, a new rating decision should be prepared to ensure that each of his chronic disabilities has been assigned a rating under the Rating Schedule. Roberts v. Derwinski, U.S. Vet. App. No. 90-606 (May 15, 1992) (copy of slip opinion attached). 6. If there are any changes to the evaluations shown in the June 1991 rating decision, the evaluations assigned for the veteran's disabilities should be combined under the combined ratings table of the Rating Schedule. Irrespective of whether there has been any change to the combined evaluation, the RO should then consider whether what the Court has referred to as the "average person" test provided under 38 U.S.C. § 1502(a)(1) (1992) and 38 C.F.R. §§ 3.340(b) and 4.15 (1991) is applicable. Talley v. Derwinski, 2 Vet.App. 282 (1992); Brown v. Derwinski, U.S. Vet. App. No. 90-505, slip op. at 5 (June 1, 1992) (copy of slip opinion attached). We point out that 38 C.F.R. § 4.15 (1991) references the total (100 percent) evaluations provided for certain disabilities under the Rating Schedule. Both 38 C.F.R. §§ 3.340(b) and 4.15 (1991) additionally provide a presumption of permanent and total disability for various combinations of permanent functional or sensory impairments. If the veteran has a 100 percent disability rating under the Rating Schedule, including one arising from the combination of lesser disability ratings, it must be determined whether his ratable disability or disabilities is/are permanent. 7. If the benefit sought on appeal remains denied, the RO should consider whether both the percentage requirements under 38 C.F.R. § 4.16 (1991) and the permanence requirement under 38 C.F.R. § 4.17 (1991) are met, and, if so, whether the veteran is unemployable as a result of what the Court has referred to as "lifetime" disabilities. Brown, U.S. Vet. App. No. 90-505, slip op. at 4 (June 1, 1992). We point out that the reduced percentage requirements associated with attainment of certain ages, provided under 38 C.F.R. § 4.17 (1991), were deleted from this regulation in late 1991. 56 Fed. Reg. 57,965 (1991) (to be codified at 38 C.F.R. § 4.17). 8. If the benefit sought on appeal remains denied and the veteran has been found to not meet the percentage requirements under 38 C.F.R. § 4.16 (1991), the RO should consider whether the veteran nevertheless meets the criteria for a determination of "unemployable" under 38 C.F.R. § 3.321(b)(2) (1991). (The Board appreciates that the Montgomery, Alabama RO duly addressed this provision in each of the recent rating decisions, as well as in the March 1991 statement of the case.) 9. If the benefit sought on appeal remains denied, a supplemental statement of the case should be furnished to the veteran, containing an explanation of the RO's latest deliberations under all of the foregoing criteria of the "average person" and "unemployability" standards. The supplemental statement of the case should also include the criteria of the Rating Schedule under which each of the veteran's ratable disabilities has been evaluated. If the benefit sought on appeal is denied, the veteran and any representative he may designate should be afforded the requisite 60 days to respond to the supplemental statement of the case. 57 Fed. Reg. 4,113 (1992) (to be codified at 38 C.F.R. § 20.302(c)). The case should then be returned to the Board for further appellate consideration. The veteran need take no action until he is further notified by the RO. No opinion is intimated by the Board as to the final outcome of the issue addressed herein. BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 * J. J. SCHULE C. J. STUREK *38 U.S.C. § 7102(a)(2)(A) (1992) permits a Board Section, upon direction of the Chairman of the Board, to proceed with the transaction of business without awaiting assignment of an additional Member to the Section when the Section is composed of fewer than three Members due to absence of a Member, vacancy on the Board or inability of the Member assigned to the Section to serve on the panel. The Chairman has directed that the Section proceed with the transaction of business, including the issuance of decisions, without awaiting the assignment of a third Member. Under 38 U.S.C. § 7252 (1992), only a decision of the Board 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.