BVA9503190 DOCKET NO. 91-36 626 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to a permanent and total disability rating for pension purposes. REPRESENTATION Appellant represented by: Missouri Veterans Commission ATTORNEY FOR THE BOARD J. Connolly, Associate Counsel INTRODUCTION The veteran had active service from April 1969 to January 1971. This matter came before the Board of Veterans' Appeals (Board) on appeal from a July 1990, decision of the St. Louis, Missouri, Regional Office (RO) of the Department of Veterans Affairs (VA). A notice of disagreement was received in September 1990. A statement of the case was sent to the veteran in November 1990. A substantive appeal was received in December 1990. In a November 1993 decision, the Board remanded this case for further development. REMAND At the outset, the Board notes that the veteran was originally denied entitlement to nonservice-connected pension in a July 1990 rating decision. The RO listed the veteran's nonservice- connected disabilities: grand mal seizure disorder rated as 40 percent disabling, loss of taste rated as 10 percent disabling, loss of smell rated as 10 percent disabling, mild dementia rated as 10 percent disabling, and status post mid-facial fractures rated as 10 percent disabling. The total combined rating was 60 percent. In the November 1993 decision, the Board remanded this case for further development regarding the veteran's claim for nonservice- connected pension. The Board determined that the veteran should be afforded a general VA medical examination to determine the nature and extent of all disabilities. In response to the November remand decision, the veteran was afforded a general VA examination as well as several special VA examinations in December 1993. Specifically, he was afforded a general VA examination which referred to the special examinations for specific diagnoses. However, the examiner did note that the veteran had triple vision on downward gaze although no other abnormalities of the eyes were found. In regard to the special examinations, the veteran was afforded an examination to determine if the veteran lost his sense of smell as the result of a head injury. The examiner concluded that the veteran had completely lost his sense of smell. The veteran was afforded an examination to determine whether he had any diseases/injuries of the brain. The examiner concluded that he had a status post skull fractures and subdural hematoma; status post surgical evacuation of the hematoma; seizure disorder and "emephalopathy." The veteran was afforded an examination to determine if he suffered from epilepsy and/or narcolepsy. The examiner concluded that the veteran had a seizure disorder secondary to a brain injury. He noted that the veteran's neurologist had described his seizures as grand mal epilepsy. The veteran was afforded a mental disorder examination. The Board notes that the examiner's findings are not definitive. Specifically, the examiner determined that the veteran had possible organic amnestic syndrome based on the veteran's reported history; post-traumatic stress disorder traits; possible personality disorder; and seizure disorder. Following the examinations, the RO was instructed to evaluate each of the nonservice-connected disabilities identified during the VA examinations, and, using the diagnostic codes in 38 C.F.R. Part 4 (1994), assign a disability rating to each of the disabilities identified in the VA examination. The disability ratings were to be combined in accordance with 38 C.F.R. § 4.25 (1994). Following the examinations, the RO confirmed and continued the prior denial of entitlement to nonservice-connected pension. Any new disabilities that were identified on examination were not listed and rated. The Board finds that the RO must separately rate all of the veteran's disabilities using the diagnostic codes in 38 C.F.R. Part 4 (1994) and combine the ratings under 38 C.F.R. § 4.25 (1994). However, as previously noted, the Board observes that the veteran's special VA mental disorder examination provided diagnoses that were equivocal in nature, that is, the examiner identified several possible diagnoses. Therefore, the Board finds that the veteran should be afforded another VA mental disorder examination in order to determine if the veteran suffers from any mental disorders. The examiner should specifically address whether the veteran has organic amnestic syndrome, post-traumatic stress disorder, a personality disorder, and/or any other disorder(s). Thereafter, the RO should separately rate all of the veteran's disabilities using the diagnostic codes in 38 C.F.R. Part 4 (1994) and combine the ratings under 38 C.F.R. § 4.25 (1994). In its review of the veteran's disabilities, the RO should consider whether the veteran has an eye disorder, in light of the finding of triple vision during the December 1993 general VA examination. Under the circumstances of this case, additional development is necessary in order to fulfill the VA's duty to assist. Accordingly, this matter is REMANDED for the following action: 1. The veteran should be afforded a VA mental disorder examination. The examiner should specifically address whether the veteran has organic amnestic syndrome, post-traumatic stress disorder, a personality disorder, and/or any other disorder(s) present. The examiner should be asked to provide detailed findings of the manifestations of any psychiatric disorder(s) present. All necessary tests should be completed. The claims file should be made available to the examiner prior to the examination. The examiner should report all findings in detail, and should include a medical opinion as to whether employment is permanently precluded by disability(ies). 2. The RO should evaluate each of the nonservice-connected disabilities and, using the diagnostic codes in 38 C.F.R. Part 4 (1994), assign a disability rating to each of the disabilities identified. The disability ratings should be combined in accordance with 38 C.F.R. § 4.25 (1994). 3. The RO should then determine whether the veteran suffers from a permanent and total disability listed in 38 C.F.R. § 4.15 (1994) or whether a total schedular rating is present and the disability is permanent. If, however, the veteran is not deemed to be employable as a result of a lifetime disability, the RO should consider whether he suffers from a lifetime disability which would render it impossible for the average person to follow a substantially gainful occupation. In determining whether the veteran is unemployable as a result of a lifetime disability, the RO should determine whether the requirements of 38 C.F.R. § 4.16 (1994) are met, whether the disabilities are permanent, and whether the veteran is unable to secure and follow substantially gainful employment by reason of such disability. 4. The RO should determine whether an extraschedular rating is warranted under 38 C.F.R. § 3.321(b)(2) (1994) and, if not, should set out its reasons and bases for that decision. 5. The RO should reevaluate the veteran's claim under the provisions of 38 C.F.R. § 3.321(b)(2) (1994). 6. The RO should review the veteran's claim for entitlement to a permanent and total disability rating for pension purposes. If that claim is not resolved to the veteran’s satisfaction, the veteran should be provided with a supplemental statement of the case that contains a summary of the relevant evidence in a citation and discussion of the applicable laws and regulations. He should also be afforded the opportunity to respond to that supplemental statement of the case before the claim is returned to the Board, if appropriate. No action is required of the veteran until further notice. The Board expresses no opinion, either factual or legal, as to the ultimate determination warranted in this case pending completion of the requested development. E. M. KRENZER 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. 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).