92 Decision Citation: BVA 92-19045 Y92 BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 DOCKET NO. 91-49 996 ) DATE ) ) ) THE ISSUE Entitlement to a permanent and total disability rating for pension purposes. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD K. J. Spindler, Counsel INTRODUCTION The veteran is the appellant in this case. He had active military service from February 1953 to February 1956. This case came before the Board of Veterans' Appeals (hereinafter the Board) on appeal from a January 1990 rating decision of the Detroit, Michigan Regional Office (RO) of the Department of Veterans Affairs (VA), of which the veteran was mailed notice in February 1990. The veteran's notice of disagreement was received in March 1990. A statement of the case was issued in July 1990. The veteran's substantive appeal was received in September 1990. In it he requested a hearing before a traveling section of the Board. In January 1991 his representative organization throughout this appeal, The American Legion, advised that the veteran requested a hearing on appeal before VA field personnel. Later in January 1991 the RO notified the veteran that a personal hearing was scheduled to be held at the RO in March 1991. In March 1991 the veteran and his wife appeared and testified at a personal hearing before a VA hearing officer at the RO. A transcript of the hearing is on file. Additional medical evidence was subsequently obtained by the RO. The hearing officer issued his decision, unfavorable to the veteran, in August 1991. The RO issued a supplemental statement of the case in September 1991. In November 1991 The American Legion furnished written argument to the RO. The case was received at the Board in Washington, D.C. in December 1991. It was thereupon forwarded to The American Legion, which furnished additional written argument to the Board in February 1992. 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. The latest formal rating decision on file is dated in November 1979. In it the veteran's only disability was noted to be schizophrenia associated with sexual deviation, evaluated as 10 percent disabling under Code 9203 of the VA's Schedule for Rating Disabilities (Rating Schedule). Later in November 1979 the veteran was notified that a permanent and total disability rating for pension purposes was denied, and he was informed of his procedural and appellate rights. He did not file a notice of disagreement therewith within one year. Therefore, the denial of a permanent and total disability rating for pension purposes became final on the basis of the evidence of record at the time of the November 1979 rating decision, in the absence of clear and unmistakable error. 38 U.S.C. § 7105(c) (1992); 38 C.F.R. § 3.104(a) (1991). 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, we find 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 about 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). In its recent decision in the case of Roberts v. Derwinski, U.S. Vet. App. No. 90-606, slip. op. at 4 (May 15, 1992) (copy of slip opinion attached), the United States Court of Veterans Appeals (Court) held in part that "[b]efore a total and permanent disability rating can be awarded, an evaluation must be performed under the Schedule for Rating Disabilities to determine the percentage of impairment caused by each disability." Further, in the case of Brown v. Derwinski, U.S. Vet. App. No. 90-505, slip op. at 6 (June 1, 1992) (copy of slip opinion attached), the Court stated that it was "...inconceivable how an accurate determination could be made" in a pension claim when, in that case, there had not been a formal rating decision since 1980. The July 1990 statement of the case and the September 1991 supplemental statement of the case do not contain any specific criteria of the Rating Schedule. The current medical evidence clearly shows that the veteran has chronic disabilities which have not been expressly evaluated under the Rating Schedule by the RO. The May 1991 VA psychiatric examination resulted in diagnoses not only of chronic undifferentiated-type schizophrenia, in partial remission, but also of mild organic brain syndrome with impairment of immediate memory, and borderline and sociopathic personality disorders. The April 1991 VA medical examination revealed objective evidence of degenerative disc disease of the lumbosacral spine and osteoporosis of the hands. The December 1989 and April 1991 VA medical examinations included notations that the veteran was status post transurethral resection of the prostate for benign prostatic hypertrophy and status post penile implant. He was diagnosed as having histories of peripheral vascular disease of the lower extremities and peripheral neuropathy. The veteran specifically reported a history of diverticulitis, and he complained of respiratory problems, headaches, and constant pain in the shoulders and back. On both examinations he also claimed impairment of vision, but his eyes were not examined and his vision was not tested. The Board notes that the record contains very few records of the veteran's reported past medical and psychiatric care. Further, it is indicated that the veteran has been receiving Social Security disability benefits for 9 or 10 years based on his psychiatric disability, and that his wife is his representative payee for those benefits. None of the clinical records on file indicate that they were obtained or considered by the Social Security Administration (SSA). In light of the foregoing, the Board finds that additional medical evidence is needed before a final appellate decision can be rendered. Additional procedural action by the RO will also be necessary, as a result of several recent decisions of the Court. Consequently, the case is hereby REMANDED to the RO for the following actions: 1. Relative to obtaining additional evidence: (a) The veteran, through his representative, should be requested to clarify the correct names and complete addresses of the following sources of non-VA medical and psychiatric care which he has reported at various times: (1) "Wayne County General" (he reported he was hospitalized there for psychiatric care in January-February 1963); (2) "Detroit Memorial" (he reported that he was hospitalized there for alcoholism and psychiatric care in February 1974); (3) "DelRay Hospital" (he reported that he has received treatment for pain in his side there since 1974); (4) "Deaconness" (he reported he was hospitalized there for psychiatric care from December 7-19, 1981); (5) "Dr. Cronk" (who reportedly treated the veteran for respiratory problems in 1989-1990); and (6) "Dr. Brent Murphy" (who is indicated to currently be the veteran's treating physician). (The Board was not able to verify addresses for any of the above claimed sources utilizing American Hospital Association and American Medical Association directories. Also, we find no "DelRay, Michigan" on maps we reviewed.) (b) The veteran should also be requested to furnish signed authorizations for release to the VA of private medical records from each of the foregoing sources, as well as from: (1) Flint Osteopathic Hospital, 3921 Beecher Road, Flint, Michigan 48532 (where the veteran was reportedly hospitalized from August 3-7, 1987); and (2) Pontiac General Hospital, Seminole at West Huron Street, Pontiac, Michigan 48341 (where the veteran was apparently seen in the emergency room during August 1988). (c) Photocopies of the veteran's complete medical records from all of the above sources should then be requested. Medical records obtained should be added to his VA claims folder. 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. Masors v. Derwinski, 2 Vet.App. 181 (1992). 3. A social and industrial survey should be accomplished by the VA to evaluate the veteran's current social and industrial adaptability. 4. The veteran's eyes and vision should be examined in a VA examination for pension purposes. Psychological testing, followed by another psychiatric examination, should also be accomplished, to clarify the etiologic nature and severity of the veteran's and psychiatric disorder(s). If the non-VA medical evidence does not include recent pulmonary function test results, such testing should be accomplished by the VA, followed by a respiratory system examination. Any other examinations found to be warranted by the RO, and any other specialized testing deemed indicated by the VA examiners, should be carried out. The veteran's VA claims folder should be made available to each examiner prior to the examinations, so they are able to review the available records of pertinent medical history, treatment, and examinations prior to examining the veteran. 5. Thereafter, the RO should prepare a new rating decision to ensure that each of the veteran's chronic disabilities has been assigned a rating under the Rating Schedule. 6. The evaluations assigned for the veteran's disabilities should be combined under the combined ratings table of the Rating Schedule. 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, U.S. Vet. App. No. 90-505, slip op. at 5 (June 1, 1992). 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 the 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 RO duly addressed this provision in the January 1990 rating decision and in the July 1990 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 and his representative, 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 his representative 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. (CONTINUED ON NEXT PAGE) 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.