93 Decision Citation: BVA 93-20983 Y93 BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 DOCKET NO. 91-49 048 ) DATE ) ) ) THE ISSUE Entitlement to a permanent and total disability rating for pension purposes. REPRESENTATION Appellant represented by: Keith D. Snyder, Attorney-at-Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. J. Spindler, Counsel INTRODUCTION The veteran is the appellant in this case. He had active military service from October 1964 to August 1966. This case currently comes before the Board of Veterans' Appeals (hereinafter the Board) pursuant to a Memorandum Decision of the United States Court of Veterans Appeals (Court) issued April 7, 1993, based upon which Judgment was entered by the Court on April 30, 1993. In the April 7, 1993 Memorandum Decision the Court vacated and remanded to the Board the decision of the Board dated April 1, 1992. In the April 1, 1992 decision the Board denied the veteran a permanent and total disability rating for pension purposes. In August 1992 the veteran appointed Keith D. Snyder, Attorney-at-Law, to represent him in all veterans' benefit matters before the Department of Veterans Affairs (VA). The veteran was represented by Mr. Snyder in his appeal to the Court as well. The case was received back at the Board in May 1993. By a letter dated July 9, 1993, the Board afforded the veteran's attorney an opportunity to submit additional argument to the Board within 30 days. The Board has not received any response to the July 9, 1993 letter. The veteran's appeal seeking a permanent and total disability rating for pension purposes, which was denied by the Board in its April 1, 1992 decision, was initiated from a September 1990 rating decision of the San Francisco, California VA Regional Office (RO). The veteran's notice of disagreement therewith was received by the RO in February 1991. The RO issued a statement of the case in March 1991. The veteran filed a substantive appeal later that month, requesting a hearing before VA field personnel. The RO again denied the veteran a permanent and total disability rating for pension purposes in a rating decision in July 1991, and promptly issued a supplemental statement of the case. A hearing was held before a VA hearing officer at the RO in August 1991. A transcript of the hearing is in the record (the veteran's VA claims folder). The hearing officer issued his decision later that month. The RO issued another supplemental statement of the case in September 1991. The case was received at the Board in Washington, D.C. in November 1991. REMAND The aforementioned July 1991 rating decision is the latest formal VA rating decision on file wherein the veteran's disabilities (all of which are nonservice-connected) were individually evaluated under the criteria of VA's Schedule for Rating Disabilities (the Rating Schedule). In it the RO determined that the veteran's nonservice- connected disabilities, ratable for pension purposes, were: Dysthymic disorder, evaluated as 30 percent disabling under Code 9405 of the Rating Schedule; arthritis of the knees, evaluated as 20 percent disabling under Code 5003 of the Rating Schedule; allergic rhinitis, evaluated as 10 percent disabling under Code 6501 of the Rating Schedule; and asthma, acneiform dermatitis, and bilateral hearing loss, each evaluated at zero percent under the Rating Schedule (under Codes 6602, "7899," and 6100, respectively). The veteran does not have any adjudicated service-connected disability. The combined evaluation for the veteran's nonservice-connected disabilities was found to be 50 percent. In the April 7, 1993 Memorandum Decision, the Court held, in part, that the record before the Board in April 1992 showed that the Board committed error when it did not (1) obtain the records of the Social Security Administration (SSA), based upon which SSA granted the veteran disability benefits, and (2) obtain the records based upon which the veteran was found entitled to benefits "under the Agent Orange Veteran Payment Program Fund." The Court further held that the Board erroneously failed to (3) consider whether the veteran had any "'defects in...mental endowment preventing the usual amount of success in overcoming the handicap of disability'"; and (4) determine "'the ability of [appellant's] body as a whole, or of [his] psyche, or of a system or organ of [his] body to function under the ordinary conditions of daily life including employment,'...especially in light of the medications, such as Prozac (fluoxetine hydrochloride), that appellant is taking." [citation redacted]. The most recent medical evidence currently in the record consists of photocopies of reports of non-VA treatment dated in August 1991. As the Board noted in the now-vacated April 1992 decision, photocopies of various letters addressed to the veteran from SSA, on file, indicate that he was determined to be "disabled" under the legal criteria governing eligibility for supplemental security income benefits, effective in May 1989. Photocopies of documents dated in April 1991 indicate that the veteran was determined to be entitled to compensation under an "Agent Orange Payment Program as 100% disabled," "with May 1, 1989 as the date of disability onset for purposes of compensation." As a consequence of the Court's findings and action, the Board now finds that additional development is required in this case prior to readjudicating the veteran's appeal for a permanent and total disability rating for pension purposes. Also, we find that additional procedural action by the RO will be necessary, as a result of several decisions of the Court in other cases. Accordingly, the case is hereby remanded to the RO for the following actions: 1. SSA should be requested to furnish photocopies of the complete medical, psychiatric, vocational, and other relevant records based upon which it has determined that the veteran was "disabled" as of May 1989, for supplemental security income purposes. SSA should also be requested to furnish photocopies of all state agency decisions or appellate decisions wherein the veteran has been determined to be "disabled." All records received from SSA should be added to the veteran's VA claims folder. The Board points out that the instructions contained in § 9.01(a)(3), Part III of M21-1 (Authorization and Clerical Procedures to Veterans Benefits Manual M21-1, Adjudication Procedures...) may only be appropriate in the case of a beneficiary of SSA disability insurance benefits, not a beneficiary of supplemental security income. The records pertaining to the veteran's supplemental security income benefits may be located at his local SSA district office. An August 1991 notice in the record shows the following district office address: Social Security Administration, 823 Marin Street, P.O. Box 1768, San Francisco, California 94590. 2. After obtaining from the veteran, through his attorney, any necessary authorization for release to VA of non-VA documents, the RO should request photocopies of the complete medical and other records of the Agent Orange Administration, based upon which that organization determined in or about April 1991 that the veteran had been totally disabled since May 1989. The only address for this organization which the Board finds in the record is: Agent Orange Administration, United States District Courthouse, 225 Cadman Plaza East, Brooklyn, New York 11201. If the whereabouts of the requested records cannot be ascertained utilizing this address, the veteran may be able to furnish the address of the "Claims Administrator," indicated to be located in Hartford, Connecticut. All records obtained should be added to the veteran's VA claims folder. 3. The veteran should be requested to identify the sources of any and all medical (including psychiatric) care he has received since August 1991. He should also be requested to furnish signed authorizations for release to VA of medical records from each non-VA source he may identify. Photocopies of the veteran's complete medical records from all identified sources should then be requested. The RO should also obtain the records of the medical and psychiatric treatment which the veteran received at the Alexandria, Louisiana VA Medical Center, reportedly from 1970 to 1988. All records obtained should be added to the veteran's VA claims folder. 4. Thereafter, a psychiatric examination of the veteran should be scheduled for rating purposes. Psychological testing and a social and industrial survey should be accomplished in connection with the psychiatric examination. The psychiatric examiner should be requested to evaluate, to the extent possible, any adverse effects on the veteran's functional capacity in social and industrial settings, which may result from his basic intellectual endowment (if found to be below normal) and his prescription medications. The veteran's VA claims folder must be made available to the psychiatric examiner prior to the examination, so the examiner is able to review the records of the veteran's psychiatric history, treatment, and previous examinations before examining the veteran. 5. The RO should also obtain any additional medical examinations of the veteran which it may find warranted. If other VA examinations are requested for rating purposes, the veteran's VA claims folder should be made available to each examiner prior to examining the veteran, so the examiner is able to review the records of the veteran's medical history and previous examinations. 6. If any change in the evaluations of the veteran's disabilities assigned in the July 1991 rating decision is found to be warranted, or if the veteran is found to have any ratable disability not evaluated in July 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, 2 Vet.App. 387, 390 (1992). 7. If there are any changes to the evaluations shown in the July 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 the objective "average person" standards provided under 38 U.S.C.A. § 1502(a)(1) (West 1991) and 38 C.F.R. §§ 3.340(b) and 4.15 (1992), are applicable. Talley v. Derwinski, 2 Vet.App. 282, 285 (1992); Brown v. Derwinski, 2 Vet.App. 444, 446 (1992). 38 C.F.R. § 4.15 (1992) 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 (1992) 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 (1992). 8. If the benefit sought on appeal remains denied, the RO should consider whether both the percentage requirements under 38 C.F.R. § 4.16 (1992) and the requirement as to permanency under 38 C.F.R. § 4.17 (1992) 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. at 446. 9. 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 (1992), 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) (1992). 10. 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 in the Rating Schedule under which each of the veteran's ratable disabilities has been evaluated, in accordance with Roberts. If the benefit sought on appeal is denied, the veteran and his attorney should be afforded the requisite 60 days to respond to the supplemental statement of the case. 38 C.F.R. § 20.302(c) (1992). The case should then be returned to the Board for further appellate consideration. The veteran does not need to take any 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 * D. C. SPICKLER J. J. SCHULE *38 U.S.C.A. § 7102(a)(2)(A) (West 1991) permits a Board of Veterans' Appeals 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 of Veterans' Appeals 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. 38 C.F.R. § 20.1100(b) (1992).