92 Decision Citation: BVA 92-21790 Y92 BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 DOCKET NO. 90-22 721 ) DATE ) ) ) THE ISSUE Entitlement to a permanent and total disability rating for pension purposes. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD K. J. Spindler, Counsel INTRODUCTION The veteran is the appellant in this case. When he filed his initial application for Department of Veterans Affairs (hereinafter VA) compensation or pension in June 1985, he reported that he had active military service from December 1966 to December 1968 and from March 1970 to September 1972. Military separation documents in his VA claims folder verify that he had active military service from March 1970 to September 1972, and further indicate that he had approximately 2 years and 19 days of active service prior to March 31, 1970. This matter is now before the Board of Veterans' Appeals (Board) pursuant to an Order of the United States Court of Veterans Appeals (Court) dated April 9, 1992, wherein the December 6, 1990 decision of the Board, on appeal to the Court, was vacated, and the case was remanded to the Board. The Court directed the Board to comply with the appellee's motion for remand to the Board, which, the Court noted, the appellant did not oppose. This motion to remand was incorporated by reference into the Court's Order. In the motion for remand the appellee conceded that in the decision on appeal to the Court the Board provided: inadequate reasons or bases for its denial of a permanent and total rating for pension purposes, its finding that the Appellant's permanent disabilities do not preclude all forms of substantially gainful employment and its conclusion that he is neither totally disabled nor unemployable because of permanent disability, under 38 U.S.C. §§ 1502 and 1521 (formerly §§ 502 and 521), and 38 C.F.R. §§ 3.321, 3.340, 3.342 and Part 4. The appellee specifically proposed to the Court that it should direct the Board to "issue a supplemental decision providing reasons or bases for its findings and conclusions on all material issues of fact or to take any other ajudicative [sic] action deemed necessary." The veteran represented himself in his appeal before the Court. After the Board received the case from the Court later in April 1992, the record was submitted to The American Legion, which organization represents the veteran before VA in all benefit matters. The American Legion submitted additional written argument to the Board in May 1992. The appeal addressed in the Board's December 6, 1990 decision was initiated from an August 1989 rating decision of the Chicago, Illinois VA Regional Office (RO), of which the veteran was mailed notice in September 1989. Entitlement to a permanent and total disability rating for pension purposes was also denied in October and November 1989 rating decisions. The veteran's notice of disagreement was received in December 1989. A statement of the case was issued in January 1990. The veteran's substantive appeal was received in March 1990. The American Legion furnished written argument to the RO in May 1990. The case was received at the Board in Washington, D.C. in June 1990. It was thereupon forwarded to The American Legion, which furnished additional written argument to the Board in October 1990. REMAND In the aforementioned October 1989 rating decision the RO determined that the veteran's nonservice-connected disabilities were as follows: Postoperative residuals of peptic ulcer disease and hiatal hernia with esophageal reflux, evaluated as 30 percent disabling under Code 7328-7346 of VA's Schedule for Rating Disabilities (Rating Schedule); "Seizure Disorder/Questionable Spells," evaluated as 20 percent disabling under Code 8999-8911 of the Rating Schedule; residuals of right femur fracture, rated at zero percent under Code 5299-5255 of the Rating Schedule; residuals of right tibia fracture, rated at zero percent under Code 5299-5262 of the Rating Schedule; and "Residuals, Herbicide Exposure," rated at zero percent under Code 7899-7806 of the Rating Schedule. The combined evaluation for the veteran's nonservice-connected disabilities was found to be 40 percent. The Board notes that in addition to the disabilities indicated above, medical records on file show that a thrombosed hemorrhoid was found in February 1989 and that drug dependence and possible psychiatric disease were diagnosed in the 1970's. VA rating decisions on file show that the veteran was found permanently and totally disabled for pension purposes by VA from June 12, 1985 through October 31, 1987. Apparently the veteran was actually paid pension benefits from July 1, 1985 to May 1, 1988. As a result of subsequent applications to reopen his pension claim he was denied entitlement to a permanent and total disability rating for pension purposes by several rating decisions. The veteran was promptly notified of an August 1988 rating decision wherein a permanent and total disability rating was denied, but did not file a notice of disagreement therewith within one year. The August 1988 denial of a permanent and total disability rating for pension purposes therefore became final on the basis of the evidence on file at the time of the rating action, in the absence of clear and unmistakable error. 38 U.S.C.A. § 7105(d)(3) (West 1991); 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.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (1991); Abernathy v. Derwinski, 2 Vet.App. 391 (1992). Regarding the veteran's potential eligibility for pension benefits, the Board finds that the medical treatment reports which have been added to the record after the August 1988 rating action 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, 174 (1991). This is particularly true because the veteran attributes his claimed total disability, in part, to residuals of an injury he sustained in June 1989. As such, the veteran's claim for pension benefits is found to have been reopened. The RO's October 1989 rating action appears to have been consistent with this conclusion. The veteran's 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 a telephone call in May 1992 the veteran notified the Board that he was awarded Social Security benefits in June 1990. The Board assumes that the veteran was referring either to Social Security Disability Insurance Benefits or supplemental security income benefits based on disability. In the case of Masors v. Derwinski, 2 Vet.App. 181, 186-87, 189 (1992), the Court held that VA's duty to assist a claimant for pension benefits in receipt of Social Security disability insurance benefits extends to ensuring that VA has considered all "records of the SSA [Social Security Administration] regarding the veteran's continuing rating of unemployability for Social Security purposes." Further, as pointed out by the veteran's representative in May 1992, in a July 1990 medical report Robert J. Prentice, M.D., indicated that he was referring the veteran for evaluation of a neurological problem he was developing to "Dr. Hanigan, who is from Peoria." The veteran's representative urges the Board to secure the records of Dr. Hanigan, and to consider affording the veteran further medical examinations and a social and industrial survey prior to rendering a final appellate decision, if the benefit sought on appeal cannot otherwise be granted. In light of the foregoing, the Board finds that development of additional evidence is needed in order to ensure that 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 accordance with § 9.01, Part III and § 7.51(a), Part VI, M21-1 (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 records which the SSA has on file, based upon which it has determined that the veteran is "disabled." 2. The veteran should be requested to report all of the medical evaluations and treatment he has received after June 1989, and to furnish signed authorizations for release to VA of medical records from each non-VA source he may identify, to include Robert J. Prentice, M.D., The Galesburg Clinic, 3315 North Seminary Street, P.O. Box 1207, Galesburg, Illinois 61401. Photocopies of the veteran's complete medical records (not already on file) should then be requested from all identified sources, including any VA facilities. All medical records obtained should be added to the veteran's VA claims folder. 3. A social and industrial survey should be accomplished by VA to evaluate the veteran's current social and industrial adaptability. 4. The veteran should be afforded gastroenterologic, orthopedic, neurological, and psychiatric examinations for pension purposes. Any other examinations considered warranted by the RO or recommended by the VA examiners, and any specialized testing deemed indicated by the VA examiners, should also 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. If any change in the evaluations assigned for the veteran's disabilities in the October 1989 rating decision is warranted by the new evidence, or if the veteran is found to have any ratable disability not evaluated in October 1989, 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, 2 Vet.App. 387, 390 (1992). 6. If there are any changes to the evaluations shown in the October 1989 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.A. § 1502(a)(1) (West 1991) and 38 C.F.R. §§ 3.340(b) and 4.15 (1991) is applicable. Talley v. Derwinski, 2 Vet.App. 282, 285 (1992); Brown v. Derwinski, U.S. Vet. App. No. 90-505, slip op. at 5 (June 1, 1992) (copy of slip opinion attached). 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 disabilities are permanent. 38 C.F.R. § 4.17 (1991). 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 permanency 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. 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). However, as he reopened his pension claim before the change occurred, he is entitled to consideration under the old regulation. See Karnas v. Derwinski, 1 Vet.App. 308, 312-13 (1991). 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 each of the recent rating decisions, as well as in the January 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, 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. BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 * C. J. STUREK *38 U.S.C.A. § 7102(a)(2)(A) (West 1991) 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.A. § 7252 (West 1991), 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.