92 Decision Citation: BVA 92-24455 Y92 BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 DOCKET NO. 92-56 029 ) DATE ) ) ) THE ISSUE 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 1946 to April 1947. This case came before the Board of Veterans' Appeals (hereinafter the Board) on appeal from a July 1991 rating decision of the Buffalo, New York Regional Office (RO) of the Department of Veterans Affairs (VA), of which the veteran was promptly notified. His notice of disagreement therewith was received in August 1991. A statement of the case was issued by the RO in November 1991. The veteran's substantive appeal is dated in January 1992. The case was received at the Board in Washington, D.C. in February 1992. Also in February 1992 the veteran appointed the Disabled American Veterans as his representative. The Board therefore forwarded the case to the Disabled American Veterans, and written argument was received from that organization in April 1992. REMAND Entitlement to a permanent and total disability rating for pension purposes was previously denied by the Board, in an April 1991 appellate decision. In connection with his current appeal the veteran notes that when the Board denied his previous claim for pension benefits it was not aware that the Social Security Administration (SSA) granted him disability benefits. The Board finds that this contention relates to the legal criteria for the benefit which the veteran is seeking, including the requirement that "new and material evidence" be submitted to reopen the April 1991 appellate decision. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (1991). The Board therefore finds that the veteran's current contentions constitute evidence of a "well-grounded" claim, within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). This is not to say that the Board finds that the contentions constitute "new and material evidence" per se. The evidence added to the record (the veteran's VA claims folder) after the Board's decision was issued in April 1991 includes a photocopy of the March 1991 decision of an Administrative Law Judge (ALJ) of the SSA, wherein the veteran was determined to be "disabled" from April 29, 1989, under that agency's criteria. Some of the medical reports cited in the list of exhibits appended thereto are noted to already be in the veteran's VA claims folder. However, some of the evidence before the SSA is not found in his VA claims folder. This includes a November 13, 1989 report by Bruce Block, M.D. In his VA Form 1-9 dated in December 1990, the veteran indicated that Dr. Block is a psychiatrist. 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 disability insurance benefits from SSA extends to ensuring that VA has considered all "records of the SSA regarding the veteran's continuing rating of unemployability for Social Security purposes." As pointed out by the veteran's representative, the latest formal rating decision of record wherein consideration was given to individually evaluating the veteran's disabilities for pension purposes under VA's Schedule for Rating Disabilities (Rating Schedule), was promulgated in June 1986. This rating decision does not contain any mention of the multiple ratable disabilities which the subsequent medical evidence indicates that the veteran now manifests. In the June 1986 rating decision, the veteran's alcohol and cocaine abuse were noted to be due to his own willful misconduct. The November 1991 statement of the case does not include any specific criteria of the Rating Schedule. In the case of Roberts v. Derwinski, 2 Vet.App. 387, 390 (1992), the 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, 2 Vet.App. 444, 447 (1992), 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 Board notes that the medical evidence added to the record after the June 1986 rating action, including the report of the VA examination accomplished for pension purposes in July 1991, indicates that the veteran has arteriosclerotic heart disease with angina, chronic obstructive pulmonary disease, and osteoporosis of the left wrist. Reduced percentage requirements for pension eligibility, associated with attainment of certain ages, provided under 38 C.F.R. § 4.17 (1991), were deleted from this regulation effective December 16, 1991. 56 Fed. Reg. 57,965 (1991) (to be codified at 38 C.F.R. § 4.17). However, the veteran's current request to reopen his previously denied claim for pension benefits was filed before this change in the regulation occurred. Consequently, in light of the decision of the Court in the case of Karnas v. Derwinski, 1 Vet.App. 308, 312-13 (1991), the veteran is entitled to consideration under the old regulation. The (former) reduced percentage requirement for veterans age 60-64 was not included in the November 1991 statement of the case. In this regard we point out that although the veteran attained age 65 during March 1992, the former provision of the law under which he would have been presumed permanently and totally disabled for pension purposes is not applicable, because the statute which eliminated this presumption, § 8002(a) of title VIII of the "Omnibus Budget Reconciliation Act of 1990," Pub. L. No. 101-508, was expressly made applicable to claims filed after October 31, 1990. The veteran's current request to reopen his previously denied claim for pension benefits was obviously filed after October 31, 1990. 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." The records received should be added to his VA claims folder. 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. Photocopies of the complete medical records from any sources which the veteran may identify (which are not already on file) should then be requested, including any VA facilities. All records received should be added to his VA claims folder. 3. After reviewing the evidence obtained pursuant to the foregoing development requests, the RO should determine whether any further VA cardiologic, orthopedic, psychiatric, or other 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. Thereafter, the RO should determine whether the evidence received since the Board issued its appellate decision in April 1991 constitutes "new and material evidence" to warrant reopening the claim for a permanent and total disability rating for pension purposes. That is, the RO should determine whether the "new" evidence, when viewed in the context of all of the evidence, both the old and the new, establishes a reasonable possibility that it will change the outcome of the case. Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991). If so, the RO should proceed to follow the directives set forth in numbered paragraphs 5-9 below. Manio v. Derwinski, 1 Vet.App. 140, 145 (1991); Abernathy v. Derwinski, 2 Vet.App. 391, 393-94 (1992). If not, then a supplemental statement of the case should be issued to the veteran and his representative addressing the issue of reopening of the April 1991 Board decision, and the instructions contained in numbered paragraphs 5-9 below may be disregarded. In this event, the supplemental statement of the case should include the criteria contained in 38 U.S.C.A. § 5108 (West 1991) and 38 C.F.R. § 3.156(a) (1991). 5. A new rating decision should be prepared to ensure that each of the veteran's chronic disabilities, ratable for pension purposes, has been assigned a rating under the Rating Schedule. 6. The evaluations assigned for the veteran's ratable 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.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, 2 Vet.App. 444, 446 (1992). 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 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, 2 Vet.App. 444, 446 (1992). Regarding the veteran's disabilities as they existed from the date he filed his current request to reopen his pension claim, through December 15, 1991, the RO should alternatively consider whether the reduced percentage requirements for a veteran age 60-64, under 38 C.F.R. § 4.17 (1991) prior to December 16, 1991, were met. 8. If the benefit sought on appeal remains denied and the veteran has been found to not meet the applicable percentage requirements, 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). 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 include the reduced percentage requirement for veterans age 60-64 which were in effect prior to December 16, 1991. It should also contain the criteria of the Rating Schedule under which each of the veteran's ratable disabilities has been evaluated. 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 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 (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. 57 Fed. Reg. 4,126 (1992) (to be codified as 38 C.F.R. § 20.1100(b)).