BVA9505205 DOCKET NO. 93-13 670 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an increased evaluation for depression, currently evaluated as 10 percent disabling. 2. Entitlement to an increased evaluation for residuals of a back injury, currently evaluated as 10 percent disabling. 3. Entitlement to a permanent and total disability rating by reason of nonservice-connected disabilities. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellan ATTORNEY FOR THE BOARD Alice A. Booher, Counsel INTRODUCTION The veteran had active service from July 1973 to June 1979. In a decision in February 1992, the Board of Veterans' Appeals (the Board) granted service connection for a psychoneurosis and awarded an evaluation of 10 percent for the veteran's service- connected residuals of a back injury. In effectuating that decision, the RO, in March 1992, defined the disorder as depression and assigned a 10 percent rating. . This appeal is taken from a rating action by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, in March 1992. The veteran provided testimony at a personal hearing held before a Hearing Officer at the RO in August 1992, a transcript of which is of record. REMAND Correspondence is of record showing that the veteran had reported receiving notices of medical examinations after the examinations were scheduled. He requested that the examinations be rescheduled. Thereafter, the veteran was scheduled for and failed to report for other examinations. After the case was forwarded to the Board, additional clinical evidence was submitted directly to the Board. Pursuant to regulatory criteria, evidence submitted to the Board must be referred to the RO for review and preparation of a supplemental statement of the case unless this procedural right is waived by the veteran. (38 C.F.R. § 20.1304(c) (1994)). Although the veteran's representative waived consideration of this evidence in the informal hearing presentation, and inasmuch as the case is being remanded for other reasons, this evidence will be referred back to the RO for their review. In Waddell v. Brown, 5 Vet.App. 454, 457 (1993), the United States Court of Veterans Appeals (the Court) stated: "The Board also breached its duty to assist by not seeking to obtain records of SSA disability determinations. The SSA determinations are relevant to a determination of whether the appellant is able to secure and follow a substantially gainful occupation under 38 C.F.R. § 4.17, and VA's duty to assist includes seeking to obtain these records." Finally, the Court also set up a two-pronged test of pension eligibility based on 38 U.S.C.A. § 1521 (West 1991) as relates to when a veteran is unemployable by reason of a lifetime disability or when the veteran suffers from a lifetime disability which would render it impossible for the average person to follow substantially gainful employment. This case has not been reviewed using that test. Based on the evidence of record, the Board finds that the case must be REMANDED for the following actions: 1. The veteran's complete VA outpatient and inpatient treatment records since 1991 should be acquired and associated with the claims folder. 2. The veteran should be requested to provide the names and addresses of any private physicians or facilities where he has received treatment in the past 3 years, and after appropriate release, the RO should obtain copies of complete records for all such care, and associate them with the claims folder. 3. The RO is to contact the Social Security Administration and obtain from them, copies of all records, including medical reports associated with the veteran's Social Security determination, awarded in the mid-1980's. Once obtained, the records are to be associated with the claims folder. 4. The RO, with the veteran's consent, is to contact the State of Florida, Department of Labor and Employment Security, Division of Vocational Rehabilitation, and obtain from them copies of all records used in their determination that the veteran was not eligible for vocational rehabilitation services. Once obtained, the records are to be associated with the claims folder. 5. The veteran should then be afforded a VA medical examination to determine the exact nature and extent of all his current physical and mental disorders. A written assessment as to how the disorders relate to his ability to follow a substantially gainful occupation under 38 C.F.R. § 4.17 is to be included. All necessary laboratory and other testing (including audiology) should be conducted, and all examinations must be conducted in accordance with the VA Physician's Guide for Disability Evaluation Examinations. The psychiatric examination must include all appropriate psychological studies with applicable subscales. The examiner must assign a Global Assessment of Functioning Score (GAF) consistent with the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM III-R, 1987) and explain what the assigned score represents and how it correlates to all current diagnosis(es). A complete rationale for each opinion must be expressed. The claims folder and all evidence obtained pursuant to this REMAND must be made available to all examiners prior to their evaluation of the veteran. 6. Following completion of the foregoing, the RO must review the claims folder and ensure that all of the development actions have been conducted and completed in full. If any development is incomplete, including if the requested examinations do not include all test reports, special studies or opinions requested, appropriate corrective action is to be implemented. 7. The RO should then adjudicate the veteran's pension claim, on both schedular and extraschedular bases, in accordance with the pertinent provisions of the schedule, and in keeping with the mandates of the Court. If the decision remains adverse to the veteran, a supplemental statement of the case should be prepared to include all pertinent law and regulations and the specific provisions of all Diagnostic Codes for all his disabilities, rated in accordance with the pertinent criteria, with rationale given for why increased ratings are not assignable for each under such criteria. The case should then be returned to the Board for further appellate consideration. The veteran need do nothing further until so notified. RENÉE M. PELLETIER Member, Board of Veterans' Appeals (CONTINUED ON NEXT PAGE) The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. 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) (1994).