BVA9502210 DOCKET NO. 91-23 788 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE 1. Entitlement to a total disability rating based on individual unemployability due to service-connected disability. 2. Entitlement to service connection for a gastrointestinal disorder as secondary to service-connected post-traumatic stress disorder. 3. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for residuals of a head injury. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. WITNESSES AT HEARING ON APPEAL The veteran and his physician ATTORNEY FOR THE BOARD Thomas H. Tousley, Associate Counsel INTRODUCTION The veteran had active military service from December 1968 to August 1971. This matter originally came before the Board of Veterans' Appeals (Board) on appeal of a May 1990 decision of the Department of Veterans (VA) Regional Office (RO) in Seattle, Washington. By that rating decision, the RO established service connection for post-traumatic stress disorder and assigned a disability rating of 30 percent. The RO denied service connection for residuals of a contusion of the head and a leg injury, claimed as a left leg contusion. The veteran was notified of the rating decision by a letter dated in May 1990. In June 1990, the veteran's representative submitted a notice of disagreement with the assigned disability rating for the veteran's post-traumatic stress disorder. As the result of a decision by a hearing officer, by a rating decision in March 1991, the RO increased the veteran's disability rating to 50 percent. In an Informal Hearing Presentation to the Board dated in June 1991, the veteran's representative raised the issue of entitlement to service connection for a gastrointestinal disorder as secondary to the veteran's service-connected post-traumatic stress disorder. In a decision dated in August 1991, the Board referred to the RO for further action the claim for secondary service-connection for a gastrointestinal disorder and assumed jurisdiction of the issue of a total rating based on individual unemployability due to service-connected disability based on a May 1991 statement by the veteran. The Board determined the veteran was entitled to an increased rating of 70 percent for post-traumatic stress disorder under 38 C.F.R. § 4.132, Diagnostic Code 9411 (1991), but denied the veteran a total rating based on individual unemployability due to service-connected disability. The veteran appealed the Board's decision to the United States Court of Veterans Appeals (Court). While the appeal of the Board's August 1991 decision on unemployability was before the Court, the veteran submitted evidence to the RO in an attempt to reopen his claim for service connection for residuals of a head injury. By a rating decision in January 1992, pursuant to the Board's August 1991 decision, the RO assigned a 70 percent rating for post-traumatic stress disorder effective the original date of claim in October 1989. The RO also denied service connection for a gastrointestinal disorder as secondary to post-traumatic stress disorder, denied a total rating based on individual unemployability due to service- connected disability, and determined that the veteran had submitted new, but not material evidence to reopen his claim for service connection for residuals of a head injury. In April 1992, the veteran submitted a notice of disagreement with the RO's January 1992 rating decision. The RO issued a statement of the case in May 1992. The veteran submitted a substantive appeal in July 1992 to perfect an appeal of the issues of entitlement to service connection for a gastrointestinal disorder as secondary to service-connected post-traumatic stress disorder and whether new and material evidence has been received to reopen a claim for service connection for residuals of a head injury. In September 1992, he provided testimony at a hearing at the RO regarding these two service connection issues and the increased rating issue. By a Memorandum Decision in October 1992, the Court considered the Board's August 1991 decision regarding the veteran's claim for a 100 percent rating for post-traumatic stress disorder. The Court affirmed the Board's denial of a 100 percent rating under 38 C.F.R. § 4.132, Diagnostic Code 9411 (1991), but vacated and remanded for further proceedings that part of the Board's decision that denied a total rating based on individual unemployability due to service-connected disability. [citation redacted]. By a decision in May 1993, the Board again denied the veteran a total rating based on individual unemployability due to service- connected disability. The veteran appealed the Board's May 1993 decision to the Court. At approximately the same time that the Board issued its May 1993 decision, the hearing officer who conducted the September 1992 RO hearing on the issues of a total rating and service connection for a gastrointestinal disorder and for residuals of a head injury, obtained copies of records from the veteran's VA vocational rehabilitation file. In July 1993, the hearing officer affirmed the RO's January 1992 denial of the veteran's three claims. In December 1994, considering only the issue of a total rating based on individual unemployability due to service- connected disability, the Court vacated the Board's May 1993 decision, and remanded the matter for proceedings consistent with its decision. [citation redacted]. Therefore, since the veteran perfected an appeal to the Board of the two service connection issues, and the Court vacated the Board decisions regarding the total rating issue, all three issues are now before the Board. In addition, the Board notes that the former spouse of the veteran submitted a claim in November 1992 for an apportionment of the veteran's VA disability compensation on behalf of their two children. In May 1993, the RO denied her claim because she had failed to provide to the RO the social security numbers of the two children. However, the RO granted the apportionment in June 1993 once the veteran's former spouse provided this information The veteran was advised of the decision, and he submitted to the RO a letter, dated June 21, 1993, and titled "Notice of Disagreement." He questioned how the RO could deny and then approve the apportionment claim. By a letter dated in August 1993, the RO provided the veteran a chronology of actions taken in regard to the apportionment claim. The RO explained to the veteran that the apportionment claim had been initially denied because his former spouse had failed to provide the social security numbers of the children. The RO advised the veteran that his notice of disagreement would not be accepted in light of the RO's explanation of its actions. However, the RO further advised him that he should let the RO know as soon as possible if he wished to "continue" his notice of disagreement with the apportionment decision. The record before the Board does not contain a subsequent notice of disagreement or a substantive appeal from the veteran, although based on copies of December 1994 correspondence between the veteran, the Court, and the Board, it appears that he may have appealed the apportionment decision directly to the Court. A notice of disagreement is "[a] written communication from a claimant...expressing dissatisfaction or disagreement with an adjudicative determination by the agency of original jurisdiction and a desire to contest the result..." 38 C.F.R. § 20.201 (1994). The Board determines the veteran's June 21, 1993, letter to the RO constitutes a timely filed, adequate notice of disagreement because it contains the essential elements required by 38 C.F.R. § 20.201 and was filed within 60 days of the notice of the apportionment decision. 38 C.F.R. § 20.501(a) (1994). Once an adequate notice of disagreement was timely filed and not withdrawn by the veteran, the RO did not have the discretion to reject the notice of disagreement. 38 C.F.R. § 19.26 (1994). Since his appeal has not been perfected, the Board will not address the issue of the apportionment award in this decision. 38 C.F.R. § 20.200 (1994). Since he has filed a timely notice of disagreement, however, this matter is referred to the RO for issuance of a statement of the case regarding the apportionment award. 38 C.F.R. § 19.26 (1994). For reasons to be discussed, the Board will consider whether the veteran is entitled to a total disability rating based on individual unemployability due to a service-connected disability for two different periods of time. In addition, a remand follows the Board's decision regarding the veteran's entitlement to a total rating based on individual unemployability due to a service-connected disability for the second period. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he is precluded from securing and holding a substantially gainful occupation due to his service- connected post-traumatic stress disorder. He asserts that the VA has ignored the favorable opinions of medical professionals. He further contends that his severe post-traumatic stress disorder has caused his gastrointestinal disorder. He avers that an attention deficit abnormality revealed by neuropsychological testing is the result of multiple helicopter crashes he experienced as a pilot in Vietnam. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the evidence supports a 100 percent schedular rating for post-traumatic stress disorder through May 16, 1993, and that a remand to the RO to develop additional evidence is required to determine if the veteran was unemployable from May 17, 1993. It is also the decision of the Board that the veteran has reopened his claim for entitlement to service connection for residuals of a head injury and that a remand to the RO is necessary to assist the veteran in the development of this claim as well as the claim for entitlement to service connection for a gastrointestinal disorder. FINDINGS OF FACT 1. By a rating decision in May 1990, the RO denied service connection for residuals of a contusion of the head and injury to the leg, and the decision became final because the veteran did not appeal it within one year following notice of the decision. 2. The veteran was unable to secure or follow a substantially gainful occupation as a result of his post-traumatic stress disorder at least through May 16, 1993. 3. For the period from May 17, 1993, the Board makes no finding at this time as to the veteran's ability to secure or follow a substantially gainful occupation, but retains jurisdiction over this matter. 4. The evidence received since the RO's May 1990 rating decision that denied service connection for residuals of a head injury is new and provides a reasonable possibility of a change in the outcome of the decision. 5. The veteran has submitted well-grounded claims for entitlement to a total rating based on individual unemployability due to service-connected disability, entitlement to service connection for a gastrointestinal disorder as secondary to service-connected post-traumatic stress disorder, and entitlement to service connection for residuals of a head injury. CONCLUSIONS OF LAW 1. A 100 percent schedular rating under 38 C.F.R. § 4.132, Diagnostic Code 9411, is warranted through May 16, 1993. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (1994). 2. The evidence received since the RO denied the veteran's claim in May 1990 for entitlement to service connection for residuals of head injury is new and material and serves to reopen his claim. 38 U.S.C.A. §§ 5107, 5108 (West 1991); 38 C.F.R. §§ 3.156, 3.16, 20.302, 20.1103 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Total Rating A. Regulations The law provides that a total disability rating based on individual unemployability may be assigned when the evidence demonstrates that the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16 (1994). If the appropriate rating under the pertinent diagnostic code of the rating schedule is less than 100 percent, the issue of unemployability must be determined without regard to the advancing age of the veteran. 38 C.F.R. §§ 3.341(a), 4.19 (1994). Marginal employment shall not be considered substantially gainful employment. Furthermore: [M]arginal employment generally shall not be deemed to exist when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16(a) (1994). The average poverty threshold for one person for 1988 was $6,024.00 and for 1992 was $7,143.00. 59 Fed. Reg. 2453 (1994). Factors to be considered in determining unemployability include the veteran's educational attainment and employment history, Ferraro v. Derwinski, 1 Vet.App. 326, 332 (1991). B. Evidence The veteran's service personnel records show he served an extended tour in Vietnam as a helicopter gunship pilot. His discharge certificate reveals he was awarded the Bronze Star Medal and the Air Medal, both for meritorious achievement. He has related in statements to the VA and to examiners that he was involved in extensive combat involving the killing of many enemy combatants and that he was shot down on four occasions. The veteran reported on his original claim for service connection for post-traumatic stress disorder that he last worked in October 1989. According to VA educational records and the veteran's October 1992 application for a total rating based on individual unemployability, he is a high school graduate who received training as a helicopter pilot in service. He took courses in aeronautics and business administration during the early to mid- 1970's. According to a written employment history provided by the veteran at a VA psychiatric examination in January 1990, during the 1970's, he briefly worked as a chauffeur and a service mechanic, but mostly as a helicopter pilot and flight instructor. His current treating psychologist, Dr. O.R. Elofson, testified at the RO hearing in December 1990 that the veteran worked long hours at that time in high risk aviation jobs as a way to cope with his post-traumatic stress disorder. According to the veteran's testimony at the December 1990 hearing, he was no longer able to fly by the early 1980's due to his increasing anxiety, so he began to work as a salesman. In a written work history in January 1991, the veteran stated that he had held a sales position with one company from the end of 1980 until the middle of 1985, but that from June 1985 until November 1989 he was unable to hold a steady position with one company for an extended period of time. Instead, he obtained and ultimately lost employment as a salesman with four different companies. At his last place of employment, he worked full-time but was terminated after he fell far short of meeting agreed sales targets despite making numerous telephone contacts with prospective buyers. He testified at the December 1990 RO hearing that his post-traumatic stress disorder symptomatology prevented him from making anything more than superficial contacts with other people by telephone. According to the veteran's July 1992 substantive appeal, submitted in regard to the two service connection issues before the Board, his treatment for post-traumatic disorder began in 1988 after he was referred for counseling at a VA Veterans Center by an employee of the State Employment Security Department who witnessed the veteran cry when asked what he had done in Vietnam. (pages 11-12). In a December 1989 letter, Dr. Elofson reported: Current symptoms include: intrusive thoughts, avoidance of feelings associated with the events, diminished interest in significant activities, feelings of estrangement from others, sense of foreshortened survivor guilt, difficulty concentrating, exaggerated startle response, survivor guilt, and depression. The treating psychologist added that the veteran's post-traumatic stress disorder symptomatology resulted in inability to concentrate, severe problems with authority, failure to relate well to others, and recurrent problems with becoming extremely emotionally labile when experiencing intrusive thoughts of Vietnam. Dr. Elofson opined that the veteran remained "seriously impaired both socially and vocationally," as evidenced by the avoidance of romantic relationships, living by himself, and the loss of numerous jobs over the past several years. Dr. Elofson concluded that the veteran was unemployable. Dr. Elofson added in an August 1990 letter that the veteran's extensive memories of Vietnam were "intrusive to the point of invading his sense of social reality in a chronic manner," and that reports of the veteran's nightmares had been independently verified by neighbors. Dr. Elofson continued to believe that the veteran's severe disability prohibited "not only vocational functioning but virtually all social functioning." The VA psychiatric examiner at the January 1991 Special Psychiatric Examination For Post-Traumatic Stress Disorder noted the veteran was taking antidepressants prescribed by his treating psychiatrist. The examiner described the veteran's post- traumatic symptomatology at the time: Current symptoms of PTSD include frequent intrusive distressing recollections of events in Vietnam, flashback experiences and distressing recurrent dreams. The veteran avoids things that would remind him of the war, he feels a diminished interest in significant activities, is detached and estranged from others and shows a restricted range of affect. He has difficulty controlling his anger as well as other emotions. He has trouble sleeping that is only controlled by his medication. He has an exaggerated startle response, hypervigilance, poor concentration and one of the most troubling symptoms is his intense survivor guilt because of men that he knew that died in Vietnam. Despite the veteran's previous success at sales, he related that he now felt very uncomfortable around people which prevented him from retaining even minimum wage jobs. The Court succinctly summarized other evidence regarding the effect of the post-traumatic stress disorder upon the veteran's ability to work (references to the page numbers of the designated record omitted): A January 1990 letter of Dr. V. Johnette Phillips, a psychologist and partner of Dr. Elofson, stated that "in spite of [the appellant's] efforts to obtain employment, he has not been able to maintain a position for any small period of time." A February 1990 letter from Edwin C. Benson, a vocational rehabilitation counselor with the State of Washington, Department of Social and Health Services, stated that the appellant's PTSD "has presently made him unable to accomplish his field of experience, that being sales and planning." An undated letter from the appellant related that he had nineteen jobs in the last eighteen years, and that "[m]y inability to stay employed has become a major issue in my life." A July 1990 hearing of the State of Washington, Office of Administrative Hearings, pertaining to the appellant's receipt of unemployment benefits from his former employer for whom the appellant worked as a salesman from April 1989 to December 1989, resulted in the finding that "[t]here is no question but that [the appellant] was an inadequate employee, and the company was justified in discharging him."...In December 1990 the appellant...provided sworn testimony at a VA regional office (RO) hearing. The appellant testified that...he was rejected by 150 companies while looking for a job between November 1989 and January 1990.... ....A June 1991 psychoeducational evaluation conducted by Dr. Elofson and Lorraine M. Dreiblatt, M.Ed., an education specialist, found that the appellant's "deficits substantially interfere with his ability to perform optimally therefore, qualifying him as handicapped." An August 1991 neuropsychological evaluation conducted by Dr. Judith Skenazy, a neuropsychologist, recommended that the appellant work in a quiet environment, and that, "[b]ased on his report of excessive fatigue following regular work days, ...[he] would perform better in a part-time position." During a November 1991 VA Special Psychiatric Examination for PTSD, the appellant indicated that his telemarketing job ended in September 1991...In September 1992 the appellant and Dr. Elofson again testified at the VARO hearing....Dr. Elofson stated that the appellant lost his telemarketing job in September 1991 because of his disability... [citation redacted]. In regard to the part-time telemarketing job the veteran held from April 1990 to September 1991, the appellant testified at the December 1990 hearing that he was then working 24 hours per week making $6.25 per hour. According to the veteran's October 1992 application for a total rating based on individual unemployability, his maximum monthly gross income in the job was $430.00 per month. In June 1990, the veteran submitted an application for VA vocational rehabilitation benefits. Throughout 1991, he received vocational counseling from a VA psychologist. Dr. Judith Skenazy, the neuropsychologist referred to by the Court in the excerpt quoted above, conducted testing of the veteran in August 1991 as part of the VA efforts to construct a vocational rehabilitation plan. She concluded that neuropsychological testing revealed significant deficits in attentional processes, above average intellectual abilities, and strong academic and verbal reasoning skills. She opined that the veteran's deficient attentional processes compromised his work efficiency and capacity for new learning and the etiology of these deficits probably could be the result of multiple cerebral insults and psychological factors including anxiety and thought intrusion. See 38 C.F.R. §§ 21.180, 21.184 (1994) (describing the "evaluating and planning" phase of the VA vocational rehabilitation process). In September 1991, based on the results of the neuropsychological testing and of VA vocational testing, the veteran's VA vocational counseling psychologist made the findings necessary for the veteran to receive vocational rehabilitation from the VA. The psychologist determined that the limitations imposed by the veteran's service-connected disability restricted employability because the veteran was "limited in performing tasks involving attentional processes and/or complex verbal learning," and because he had difficulty in situations involving groups or substantial interaction with others. He further found that the service-connected disability materially contributed to the impairment of the veteran's employability; the veteran had not overcome the effects of the vocational impairment as evidenced by the veteran's inability to perform adequately in employment situations which established that an employment handicap existed; the veteran's employment handicap, by regulation, was determined to be "serious" since he was rated 50 percent or more disabled; and the achievement of a vocational goal was considered feasible. See 38 C.F.R. §§ 21.50 - 21.53 (1994). A "serious employment handicap means a significant impairment of a veteran's ability to prepare for, obtain or retain employment consistent with such veteran's abilities, aptitudes, and interests." 38 C.F.R. § 21.52(b) (1994) (italics in original text). The counseling psychologist advised the veteran that pursuing a four-year academic program was beyond the veteran's level of functioning, but that he would be able to "perform satisfactorily in a program allowing for individual attention, somewhat self- paced, and in a relatively [quiet] environment with few distractions - particularly if he can participate in ongoing counseling and therapy." The psychologist concluded such a training program existed with a non-VA institution, the Resource Center for the Handicapped, and that the objective of becoming a computer programmer was in line with the results of the evaluation and testing of the veteran. As a result of the vocational evaluation, an Individualized Employment Assistance Plan (IEAP) was created for the veteran in September 1991. The purpose of an IEAP is to fully utilize community resources to enable a veteran to secure and maintain employment. See 38 C.F.R. § 21.88 (1994). The goal of the veteran's IEAP was to enable him to attain and sustain employment in the field of computer programming. He entered the next phase of the VA vocational rehabilitation process, "rehabilitation to the point of employability," see 38 C.F.R. §§ 21.180, 21.190 (1994), by being enrolled in a course of instruction in computer programming at the Resource Center for the Handicapped. The training consisted of four phases of classroom instruction, 35 hours per week, that ran from September 1991 to June 1992. In addition to his VA disability compensation, the veteran was awarded a monthly subsistence allowance from September 1991 to August 1992 under 38 U.S.C., Chapter 31, to pursue vocational training. The last phase of the computer training consisted of an 8-week internship from September 24, 1992, to November 18, 1992. In the internship, the veteran worked as a computer programmer for a company which paid him $8.50 per hour to work 40 hours a week to convert computer codes. His project manager stated that the veteran's assignment was to "convert RPG programs to PC-based COBOL, using Microfocus COBOL & embedded SQL for COBOL." Upon completion of the program, he obtained an Associate Degree in Occupational Studies, Computer Programming in Business Applications. The veteran also received weekly counseling for his post-traumatic stress disorder during the time he was receiving VA vocational rehabilitation. C. Discussion The Board determines that the veteran has submitted a well- grounded claim within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). Furthermore, the Board determines that the evidence for the period through May 16, 1993, is sufficient to equitably decide his appeal. The Board will first address the question of whether the veteran's part-time employment as a telemarketer from April 1990 to September 1991 constituted "marginal employment" within the meaning of 38 C.F.R. § 4.16(a). The regulation does not specify whether "earned annual income" means that income received during a calendar year or that income received during a continuous 12- month period. The Board notes that if the veteran consistently worked 24 hours per week at $6.25 per hour as he testified to at the December 1990 RO hearing, his weekly income was $150.00, resulting in income of approximately $7,500 to $7,800 over a 12- month period (assuming 50 to 52 weeks of employment). That amount of annual income would have exceeded the poverty level for 1992. It would be reasonable to assume it would have exceeded the poverty level for 1990 and 1991. The Board recognizes that the amount of income received by the veteran during the calendar year of 1990 and during the calendar year of 1991 at $6.25 per hour would have been less than the poverty threshold because he worked only a portion of each year, although for a continuous period of greater than one year. Moreover, he reported on his October 1992 VA unemployability application that he earned no more than $430.00 per month which means that his income either on a calendar or on a non-calendar year basis was less than the poverty threshold even for 1988. Based on the evidence of the veteran's poor job performance in his last sales position in 1989, and the testimony by Dr. Elofson at the December 1990 hearing regarding the poor quality of the veteran's performance in his part-time telemarketing job, the Board accepts the veteran's report that he earned no more than $430.00 per month in his part-time position from April 1990 to September 1991. Thus, the Board finds that this employment constituted "marginal employment" within the meaning of 38 C.F.R. § 4.16(a) (1994), and does not serve as a bar to the grant of a total rating. A question also arises as to whether the veteran's eight-week internship at the end of 1992 during the final phase of his computer programming constituted engaging in a substantially gainful employment. As previously mentioned, he worked 40 hours per week for $8.50 per hour as a computer programmer, working on a project converting computer codes. The evidence indicates he successfully completed the internship. There is no evidence that he was restricted in any manner in performing the work or that he was unable to perform the duties expected of the position. A review of the pertinent regulations of 38 C.F.R Part 3, Part 4, and Part 21 reveals no regulation or regulations directly specifying that it will not be considered engaging in substantially gainful activity when a veteran engages in an internship as part of his vocational rehabilitation plan that involves performing all of the tasks normally associated with a substantially gainful occupation. However, as previously mentioned, the veteran's internship was performed during the phase of his VA rehabilitation program designated as "rehabilitated to the point of employability," meaning he would not be found employable for VA vocational rehabilitation purposes until completion of that phase, and movement into the next phase, "employment services." See 38 C.F.R. §§ 21.47(a)(1), 21.180(e), 21.190, 21.194 (1994). The internship was part of the training needed to practically apply those skills learned in the classroom that would be necessary not only to secure, but to follow a substantially gainful occupation. Thus, the Board will not consider the veteran's internship at the end of 1992 as a bar to the grant of a total rating under 38 C.F.R. § 4.16(a) (1994). The Board notes that the Court has commented that the regulations regarding the granting of a total rating based on individual unemployability due to service-connected disability present "a confusing tapestry for the adjudication of claims" because there is a question of whether the objective (average person) or subjective (the veteran) standard is to be used. Hatlestad v. Derwinski, 1 Vet.App. 164, 167 (1991). However, in addressing this question, the VA General Counsel held that the pertinent regulations provide that the veteran's individual circumstances should be considered in determining whether a total rating is warranted without regard to whether an average person would be rendered unemployable under the circumstances. VA O.G.C. Prec. Op. 75-91, 57 Fed. Reg. 2317 (1992). The Board notes that the Court subsequently commented favorably upon the opinion, and the Board is bound by the precedent opinions by the VA General Counsel. Hatlestad v. Derwinski, 3 Vet.App. 213 (1992); 38 C.F.R. § 14.507(a) (1994). Thus, the individual circumstances of the veteran's case, for the period prior to receiving computer training through VA vocational rehabilitation services, show that his primary training and job experience had been as a helicopter pilot and as a salesman. In evaluating the evidence, the determination of whether the veteran has been unable to secure or follow a substantially gainful occupation as a result of his post-traumatic stress disorder is a legal determination to be made by the Board. However, statements from treating medical personnel as to the level of the veteran's symptomatology and opinions from treating medical personnel as to the impact of the veteran's symptomatology upon his ability to socialize and to work are evidence to be analyzed, weighed, and considered by the Board. See Gleicher v. Derwinski, 2 Vet.App. 26, 29 (1991). In this case, over a three-year period, Dr. Elofson reported a level of symptomatology resulting from the veteran's post- traumatic stress disorder, (e.g., anxiety, anger, emotional lability, tendency to be easily distracted) which severely impacted on the veteran's ability to interact with others and cope with stress. Although the opinion of a treating medical professional is not presumed to be of greater evidentiary weight than the opinions of other medical professionals, see Chisem v. Brown, 4 Vet.App. 169, 176 (1993), the Board finds Dr. Elofson's observations to be probative evidence, especially in light of the frequency and duration of the veteran's treatment. Furthermore, Dr. Elofson's reports as to the level of the veteran's psychiatric symptomatology are supported by the VA medical records, private medical records, the results of psychological testing, the veteran's testimony, the evidence concerning the veteran's poor job performance during the last half of the 1980's, and the veteran's current 70 percent schedular rating. Moreover, Dr. Elofson's opinions as to the impairment of the veteran's social and industrial adaptability resulting from the post-traumatic stress disorder were not contradicted by the examining VA psychiatrist who offered no opinion on this question. The Board determines that Dr. Elofson's letters and testimony, when viewed in conjunction with the other evidence, are sufficient to decide the issue of the veteran's unemployability for the period for which the Board has significant evidence. Such psychiatric symptomatology reported by Dr. Elofson prevented employment of the veteran as a helicopter pilot because the veteran was unable to perform the intricate operations of a helicopter due to his severe anxiety, intrusive thoughts, anger, and dramatic mood swings. Moreover, this symptomatology prevented him from performing sales work due to the high degree of social interaction required and the high stress level found in employment. The Board notes that the neuropsychiatrist, Dr. Skenazy, opined that the veteran's significant deficits in attentional processes could be due in part to a head injury rather than due to post- traumatic stress disorder. The Board determines that this opinion does not weaken the veteran's unemployability claim since the severity of the symptoms from his post-traumatic stress disorder has been sufficient to render him unemployable in his previous occupations. In addition, although there have been previous diagnoses of depressive disorders, the evidence shows the depression was the result of the veteran's post-traumatic stress disorder. Finally, there is the matter of the veteran's employment as a computer programmer. The evidence shows that following the completion of his internship in November 1992, he was hired as a temporary full-time computer programmer by the same company to work on the computer code conversion project until completion. His wages were increased to $10.00 per hour. In a typewritten letter dated in January 1993, the veteran reported that the computer code conversion project would end in February 1993. A VA vocational rehabilitation progress note dated at the end of January 1993 indicates that the project would end in March 1993. The veteran also was in the process of seeking VA approval to receive additional vocational rehabilitation benefits so that he could obtain a bachelors degree in computer sciences. He wanted the degree because he was unable to secure full-time employment due to a tough job market. Those holding bachelors degrees were being chosen over him. In the middle of February 1993, he reported that he was still working on the project, but indicated he would know by the end of the month whether he was going to be hired as a permanent employee. The last VA vocational rehabilitation progress report before the Board is dated in May 1993. There is no mention of whether the veteran received permanent employment, but his VA Vocational Rehabilitation Specialist changed the veteran's vocational status, effective May 17, 1993, from "rehabilitated to the point of employability" to "employment services." She also authorized the payment of the "employment adjustment allowance" for the period from May 17, 1993 to July 17, 1993. Such an allowance is paid when a veteran's vocational status as "rehabilitated to the point of employability" is terminated. 38 C.F.R. § 21.190(e) (1994). VA form letters contained in the veteran's vocational records, which appear to be dated in 1993, concern the providing of employment services to the veteran, such as job development and placement. In addition, in regard to the apportionment claim submitted by the veteran's former spouse, he reported to the RO in a letter dated in February 1993 that his only income was from VA. This evidence indicates that the veteran was not hired as a permanent employee as a computer programmer once he completed the conversion process. The Board, however, is unable to determine why he was not hired. This means that he worked as a full-time computer programmer for approximately three to four months after completing his computer training in November 1992. The question arises as to whether this employment constituted engaging in substantially gainful occupation. The Board notes that 38 C.F.R. § 3.343(c)(2) (1994) directs that a total rating based on individual unemployability held by a veteran may not be reduced "solely on the basis of having secured and followed such substantially gainful occupations unless the veteran maintains the occupation for a period of 12 consecutive months." In addition, 38 C.F.R. § 21.6503(a) and § 21.6507(a) (1994), prohibit the reduction of a total rating held by a veteran who engaged in substantially gainful activity during the period from February 1985 to December 1992. Although these regulations are not directly on point because they concern veterans who had already been found by the VA to be unemployable, and who then began engaging in substantially gainful employment, the regulations reflect the position that a short period of employment following vocational rehabilitation does not necessarily establish that a veteran possesses the ability to "follow" a substantially gainful occupation. Furthermore, although a determination by the VA Vocational Rehabilitation Specialist that a veteran was not employable until a certain date is not binding on the Board in determining the issue of unemployability, it is evidence that should be considered by the Board. While not deciding that the veteran must have worked as a computer programmer for a set number of months before it can be found that he was able to "follow" a substantially gainful occupation, the Board determines that it was reasonable for the Vocational Rehabilitation Specialist to determine the veteran had not reached the point of employabililty until May 17, 1993, after the veteran had completed the computer code conversion project. Therefore, the Board determines that the evidence is sufficient to determine that the veteran was unable to secure and follow a substantially gainful occupation through at least May 16, 1993. As previously explained, the evidence before the Board as to the issue of the veteran's unemployability essentially ends in the middle of 1993. Thus, the Board makes no determination as to this issue for the period from May 17, 1993, but the Board retains jurisdiction over this issue. In view of the provisions of 38 C.F.R. § 4.16(c) (1994), since the veteran's only compensable service-connected disability is a psychiatric disorder assigned a 70 percent evaluation, he shall be assigned a 100 percent schedular rating until May 17, 1993 under 38 C.F.R. § 4.132, Diagnostic Code 9411. II. Residuals of a Head Injury A determination by the RO on a claim becomes final if the claimant does not perfect a timely appeal within one year after the date of notice of the disallowance. 38 U.S.C.A. § 7105(c) (West 1991); 38 C.F.R. §§ 20.302, 20.1103 (1994). Thereafter, the claimant must also submit new and material evidence to reopen a claim. 38 U.S.C.A. § 5108 (West 1991). New evidence, submitted to reopen a claim, will be presumed credible solely for the purpose of determining whether the claim has been reopened. Justus v. Principi, 3 Vet.App. 510, 513 (1993). Furthermore: 'New' evidence is that which is not merely cumulative of other evidence of record. 'Material' evidence is that which is relevant to and probative of the issue at hand and which...must be of sufficient weight or significance (assuming its credibility) that there is a reasonable possibility that the new evidence, when viewed in context of all the evidence, both new and old, would change the outcome. Cox v. Brown, 5 Vet.App. 95, 98 (1993). The veteran has related that he received a head injury as a result of multiple crashes of his helicopter in Vietnam. It was noted in service medical records in March 1969, before he went to Vietnam, that he had hit his head. The service medical records also show that he received a medical clearance to fly in March 1970 following an aircraft accident. In addition, received subsequent to the RO's May 1990 rating decision was the previously mentioned opinion by Dr. Skenazy that the veteran's deficient attentional processes were probably the result of multiple cerebral insults and psychological factors including anxiety and thought intrusion. This evidence is new because this abnormality had not been previously shown, and because no medical professional had mentioned a possible relationship between this abnormality and multiple cerebral insults. This evidence is also material because when viewed in relation to the veteran's previous statements regarding his multiple helicopter crashes during service, it provides a reasonable possibility of a change in outcome of the RO's May 1990 decision. Therefore, the veteran has reopened his claim for entitlement to service connection for residuals of a head injury, and the Board will consider all the evidence in deciding his claim. For reasons to be discussed in the remand, the Board determines that additional development of the evidence is required regarding this issue. ORDER Entitlement to a 100 percent schedular rating for the veteran's post-traumatic stress disorder is warranted under 38 C.F.R. § 4.132, Diagnostic Code 9411 through May 16, 1993, subject to the applicable laws and regulations governing the effective date of awards and payment of monetary benefits. The veteran has reopened his claim for entitlement to service connection for residuals of a head injury. REMAND In addition to the previously described evidence, VA vocational rehabilitation records show that the veteran received superior evaluations during his computer programming training, missed few classroom hours, and received a grade point average of 3.90 out of a possible 4.0. In addition, during the internship, the veteran's project manager gave the veteran high marks and found him to be "excellent/better than most" as compared with other interns and/or entry-level personnel. The VA vocational progress reports do not indicate that his employment possibilities with his temporary employer were affected by his post-traumatic stress disorder, but rather were influenced by economic conditions. The Vocational Rehabilitation Specialist noted in February 1993 that she cautioned the veteran that a "re-evaluation" of the veteran for vocational rehabilitation purposes so that he could pursue a bachelors degree in computer science may not be approved since he was considered "employable with the existing degree." Nevertheless, according to the veteran's testimony, he experienced problems during his classroom training despite the low-key nature of the instruction given in a course for disabled persons. Furthermore, Dr. Elofson testified that the veteran coped with his post-traumatic stress disorder by working very hard, but that he still experienced problems with maintaining employment. In addition, based on the evidence currently before the Board, the Board is unable to determine the veteran's work history since his temporary employment ended in 1993. The Board also notes that the last medical records before the Board are from 1992 even though he continued to receive psychological and psychiatric counseling after 1992. Moreover, as noted by the Court, the VA has not obtained a medical opinion on what effect the veteran's post-traumatic stress disorder has on his ability to work. [citation redacted]. The Court also stated that the veteran was free to submit an October 1994 statement from Dr. Elofson in support of his claim. Id., slip op. at 6. The statement is not before the Board, but it may be favorable to the veteran's claim. Finally, the outcome of the adjudication of the two service connection issues may affect the veteran's claim for a total rating for the period after May 17, 1993. Therefore, in order to assist the veteran in the development of his claim, the Board determines additional development of the evidence is required. In addition, based on the veteran's testimony that he frequently experienced gastrointestinal problems that occurred after he experienced intrusive thoughts of Vietnam, the medical literature that he submitted regarding the relationship between psychiatric disorders and gastrointestinal disorders, and the level of severity of the symptoms of his post-traumatic stress disorder shown in the past, the Board determines that he has submitted a well-grounded claim for entitlement to service connection for a gastrointestinal disorder as secondary to his service-connected post-traumatic stress disorder. Although the previously mentioned VA psychiatric examiner stated in November 1991 that the cause of the veteran's stomach distress was not clear, no physician has specifically addressed that question based on the results of a gastrointestinal examination and a review of the medical evidence. The Board notes that the RO specifically scheduled a gastrointestinal examination for the veteran at the end of 1992, but he failed to report for the examination. The Board is persuaded, however, that another examination should be scheduled in order to assist the veteran in the development of his claim. Furthermore, although Dr. Skenazy opined that the veteran's deficient attentional processes were probably due to multiple cerebral insults, a neurologist who performed an examination of the veteran in October 1991 found no neurological disorder. No physician has provided a definitive opinion on this issue. A reopened claim is inherently a well-grounded claim. Ivey v. Derwinski, 2 Vet.App. 320, 322 (1992). In the Board's judgment, further development is warranted in order to assist the veteran in the development of his claim. Accordingly, this case is REMANDED to the RO for the following action: 1. After receiving the necessary authorization from the veteran, the RO should attempt to obtain copies of the treatment records of Dr. O. R. Elofson since August 1992 as well as Dr. Elofson's October 1994 declaration submitted as an appendix to the veteran's November 21, 1994, motion for review to the Court, and associate them with claims folder. 2. After receiving the necessary authorization from the veteran, the RO should attempt to obtain treatment records since August 1992 from the veteran's private treating psychiatrist, and associate them with the claims folder. 3. The RO should obtain the veteran's Chapter 31 Vocational Rehabilitation records not already of record and associate them with the claims folder. If the veteran engaged in employment after May 17, 1993, the RO should request that the employer(s) submit an evaluation of the veteran's job performance. 4. The RO should associate with the claims folder all VA medical records since November 1991. 5. After completing the actions requested, the veteran should be afforded a VA psychiatric examination to determine the current severity of his post-traumatic disorder. The examiner is requested to use the multi-axial system for all diagnoses, and to provide an assessment of the veteran's level of functioning on the Global Assessment of Functioning Scale (GAF Scale) in accordance with DSM-III-R along with a narrative description of the numerical evaluation. Based on a review of the claims folder and the examination findings, the examiner is also requested to offer an opinion on what effect the veteran's post-traumatic stress disorder has on the veteran's ability to work. It is essential that the claims folder be provided to the examiner for the review prior to the examination. 6. The veteran should be afforded a VA gastrointestinal examination to determine the existence of any gastrointestinal disorder. All necessary test and studies should be performed if deemed appropriate by the examining physician. The examiner is requested to review the claims folder, and based on the review and the gastrointestinal examination findings, offer an opinion as to the degree of probability of a causal or etiological relationship, if any, between any diagnosed gastrointestinal disorder and the veteran's post-traumatic stress disorder. The claims folder must be made available to the examiner for review prior to the examination. The rationale for the opinions reached should be explained. 7. The veteran should be afforded a VA neurological examination to determine the existence of any neurological disorder. All necessary tests and studies deemed appropriate by the examiner should be performed. The examiner is requested to review the claims folder, including the results of the August 1991 neuropsychological testing performed by Dr. Judith Skenazy, and the medical literature submitted by the veteran. Based on the review of the claims folder, and the results of the neurological examination, the examiner is requested to offer an opinion as to the likelihood of a relationship, if any, between any diagnosed neurological disorder, to specifically include the veteran's deficient attentional processes, and his post-traumatic stress disorder. The rationale for the opinions reached should be explained. 8. The case should then be reviewed by a senior adjudication official at the RO to ensure that all requested actions have been completed to the extent possible. The RO should then adjudicate all three of the veteran's claims. Since the Board has determined that the veteran is entitled to a 100 percent schedular rating for post- traumatic stress disorder pursuant to 38 C.F.R. § 4.16(c) and 38 C.F.R. § 4.132, Diagnostic Code 9411, through May 16, 1993, the RO must adjudicate the veteran's claim for a total rating based on individual unemployability for the period from May 17, 1993. The RO should consider the provisions of 38 C.F.R. § 3.343 (1994) regarding the continuance of total disability ratings in adjudicating this claim. In addition, since the Board has determined that the veteran has reopened his claim for entitlement to service connection for residuals of a head injury, the RO must consider all the evidence in adjudicating this claim. If any of the remaining benefits sought on appeal are not granted to the veteran's satisfaction, the veteran and his representative should be furnished a supplement statement of the case, and they should be afforded the applicable period of time to respond before the record is returned to the Board for further review. This purpose of this REMAND is to assist the veteran in the development of his claims. The Board does not intimate any opinion as to the merits of this case, either favorable or unfavorable, at this time. No action is required of the veteran until he is notified. CHARLES E. HOGEBOOM Member, Board of Veterans' Appeals 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. The remand portion of this decision 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).