92 Decision Citation: BVA 92-22042 Y92 BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 DOCKET NO. 91-42 232 ) DATE ) ) ) THE ISSUES 1. Entitlement to an increased (compensable) evaluation for "scar, right leg." 2. Entitlement to a permanent and total disability rating for pension purposes. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. J. Spindler, Counsel INTRODUCTION The veteran is the appellant in this case. He had active military service from March 1952 to February 1955. This case came before the Board of Veterans' Appeals (hereinafter the Board) on appeal from a December 1990 rating decision of the New York, New York Regional Office (RO) of the Department of Veterans Affairs (VA), of which the veteran was mailed notice in February 1991. His notice of disagreement therewith was received later in February 1991; it was submitted to the RO by the veteran's accredited representative throughout this appeal, the Disabled American Veterans (DAV). A statement of the case was issued by the RO in April 1991. The veteran's substantive appeal was received in July 1991; it was also submitted by the DAV. In the substantive appeal the veteran requested a personal hearing in connection with his appeal, to be held before the Board sitting at Washington, D.C. The DAV furnished written argument to the RO in August 1991. The case was received at the Board in Washington, D.C. in September 1991. In November 1991 the Board wrote to the veteran and informed him that the personal hearing he requested was scheduled to be held in Washington, D.C. on May 11, 1992. However, the veteran did not report for the hearing on May 11, 1992. The Board thereupon forwarded the case to the DAV, which furnished additional written argument to the Board later in May 1992. REMAND At the outset the Board finds that the veteran's contentions of right lower extremity swelling and permanent and total disability constitute evidence of "well-grounded" claims within the meaning of 38 U.S.C.A. § 5107(a) (West 1991), both for an increased rating for compensation purposes and for pension benefits. That is, these contentions are not implausible and if they are supported by sufficient pertinent evidence, the benefits sought on appeal could be granted. The aforementioned December 1990 rating decision from which this appeal ensued was the first VA rating action to consider whether the veteran was eligible for pension benefits. In it the RO confirmed the zero percent evaluation for the veteran's service-connected "scar, right leg," under Code 7805 of VA's Schedule for Rating Disabilities (Rating Schedule). Further, the RO determined that the veteran's nonservice-connected disabilities were as follows: Dysthymic disorder, evaluated as 10 percent disabling under Code 9405 of the Rating Schedule; tinnitus with sensorineural hearing loss, evaluated as 10 percent disabling under Code 6204 of the Rating Schedule; "back condition," evaluated as 10 percent disabling under Code "5299" of the Rating Schedule; "sinus condition," evaluated at zero percent under Code 6513 of the Rating Schedule; duodenal ulcer, evaluated at zero percent under Code 7305 of the Rating Schedule; hiatal hernia, evaluated at zero percent under Code 7346 of the Rating Schedule; status/post right inguinal hernia, evaluated at zero percent under Code 7338 of the Rating Schedule; and defective vision, evaluated at zero percent under Code 6079 of the Rating Schedule. The combined evaluation for the veteran's service-connected and nonservice-connected disabilities, ratable for pension purposes, was found to be 30 percent. Alcohol addiction was noted as a disability resulting from the veteran's own willful misconduct. The Board notes that in addition to the disabilities indicated above, ocular hypertension was diagnosed and an appendectomy scar and external hemorrhoids were also found on VA examinations in August 1990, and residual liver disease was diagnosed on a VA examination in May or June 1979. The April 1991 statement of the case did not include any specific criteria of the Rating Schedule other than an inaccurate reference to Code 7805. The veteran is thus not shown to have been notified of any criteria of the Rating Schedule under which his service-connected disability could be assigned a compensable evaluation, such as under Codes 7803 or 7804. Nor was he informed of the criteria of the Rating Schedule under which his nonservice-connected disability evaluations were determined. The statement of the case also did not include the criteria of 38 C.F.R. § 3.321(b)(2) (1991), which the December 1990 rating decision reflects was taken into consideration in connection with his claim for pension benefits. When the veteran filed his claim for VA pension benefits in August 1990, he indicated that he receives Social Security benefits. A computer matching printout on file indicates that he has been receiving Social Security disability insurance benefits since June 1976, based on a disability onset date in February 1972. In the case of Masors v. Derwinski, 2 Vet.App. 181, 186-87, 189 (1992), the U.S. Court of Veterans Appeals (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." In August 1992, an employee of the Mental Health Project of the Nassau/Suffolk Law Services Committee, Inc. submitted a statement directly to the Board, which included references to ongoing social services being furnished the veteran, and current hospitalization of the veteran at a VA facility for psychiatric and physical evaluations. The RO is not shown to have had an opportunity to review this August 1992 statement. 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 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, through his representative, should be requested to identify all sources of medical or psychiatric examination or treatment he has received since 1989, and to furnish signed authorizations for release to VA of private medical records in connection with each non-VA source he identifies. (In this regard it should be noted that in August 1992 the Board was informed that the veteran's mailing address is P.O. Box 942, Lindenhurst, N.Y. 11757.) Photocopies of the complete medical records from all sources the veteran identifies should then be requested, to include Dr. Chinn, 240 North Wellwood Avenue, Lindenhurst, N.Y. 11757. The complete records of the veteran's inpatient and outpatient care at the Northport, New York VA Medical Center should also be obtained and associated with his VA claims folder. The veteran has reported that he receives ear, nose and throat, audiological, and medical care there. The record includes a notice of admission to that facility for alcohol abuse on November 28, 1990, in addition to the aforementioned report of a brief period of hospitalization there during August 1992. 3. After reviewing the evidence obtained pursuant to the foregoing development requests, the RO should determine whether any further VA psychiatric or medical examinations and/or a social and industrial survey is warranted. If so, all such examinations should be accomplished, including any indicated specialized testing. 4. If any change in the evaluations assigned for the veteran's disabilities in the December 1990 rating decision is warranted by the new evidence, or if the veteran is found to have any ratable disability not evaluated in the December 1990 rating decision, 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). 5. If there are any changes to the evaluations shown in the December 1990 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). 6. 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 requirement as to permanency 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), which were cited in the April 1991 statement of the case, 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 the veteran's pension claim was filed before the change occurred, he is entitled to consideration under the old regulation. Karnas v. Derwinski, 1 Vet.App. 308, 312-13 (1991). 7. 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 again consider whether the veteran nevertheless meets the criteria for a determination of "unemployable" under 38 C.F.R. § 3.321(b)(2) (1991). 8. 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 contain the criteria of the Rating Schedule under which each of the veteran's ratable disabilities has been evaluated. At this time it appears that such Codes should include Codes 6079, 6204, 6211, 6513, 7803, 7804, 9405, at least one appropriate Code providing specific criteria for evaluating a disability of the spine (perhaps 5293), and the appropriate Code from the 6100 series (apparently 6100) with criteria corresponding to the manifestations of the veteran's hearing acuity. Further, if the RO determines that the veteran has permanent medical problems which are not ratable for pension purposes because they are of willful misconduct origin, the reasons and bases for that determination should be included in the supplemental statement of the case. If the benefits sought on appeal are 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 either of the issues addressed herein. BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 * C. J. STUREK (CONTINUED ON NEXT PAGE) *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.