BVA9507698 DOCKET NO. 93-14 257 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to a permanent and total disability rating for pension purposes. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Melissa F. Marquez, Associate Counsel INTRODUCTION The appellant had active service from April 1953 to March 1955. This matter came before the Board of Veterans' Appeals (hereinafter Board) on appeal from a January 1993 rating decision of the Winston Salem, North Carolina Regional Office (hereinafter RO), of the Department of Veterans Affairs (hereinafter VA), which denied entitlement to a permanent and total disability rating for pension purposes. REMAND The appellant contends, in essence, that he has been unable to sustain employment since 1984 due to his psychiatric disability and substance abuse disorder. In a January 1993 rating decision, the RO evaluated the appellant's non service connected psychiatric disability classified as a personality disorder as 10 percent disabling. The appellant filed an initial application for pension benefits in August 1992, and submitted an August 1992 private medical statement from Dr. Malti Mehta in support thereof. The statement indicated that the appellant had been receiving additional private psychotherapy treatment, but no such records were available to this examiner. In addition, Dr. Mehta indicated that upon examination, diagnoses of alcoholism, alcoholic liver disease, and rule out depression were rendered, with an overall prognosis of "guarded". Subsequently, the appellant submitted an August 1992 notice of award and an administrative law judge's (ALJ) decision granting disability benefits from the Social Security Administration (SSA). During the hearing conducted in August 1992, the appellant testified that he currently "worked" part-time for food and shelter at the Salvation Army. The Reverend Phillips, a Salvation Army counselor, testified that the appellant had been unsuccessful in obtaining any form of independent gainful employment, and had performed unsatisfactory work even in the sheltered atmosphere at the Salvation Army. In the decision, the ALJ additionally stated that the appellant underwent psychiatric evaluation with Dr. Wilkenfeld in November 1991, who diagnosed a personality disorder, mixed type, and a substance abuse disorder. He further reported that the appellant underwent extensive psychological testing in May 1992 from Hannelore Bragg, who diagnosed dysthymic disorder with anxiety, alcohol dependence and a personality disorder resulting in "quite significant" impairment of social and occupational functioning. The ALJ concluded that the appellant's disabilities constituted "severe" impairment that precluded him from returning to his prior relevant work or from engaging in any other form of substantial gainful activity on a sustained basis, and therefore declared him disabled. No clinical records from Dr. Wilkenfeld or Dr. Bragg are currently associated with the claims folder, and the records would greatly assist in the development of a complete history of all current disabilities. See Schafrath v. Derwinski, 1 Vet.App. 589, 594 (1991) (citing 38 C.F.R. §§ 4.1, 4.2, 4.41, 4.42). In September 1992, the appellant reported for scheduled VA psychiatric and general medical examinations. During the psychiatric examination, the appellant reported a history of a personality disorder, anxiety, depression, and alcoholism, but indicated that he discontinued drinking due to Salvation Army rules. He further reported that he had not attempted obtaining employment in recent years, as the last employment attempted lasted for only one day. Upon examination, the psychiatric examiner indicated the appellant was alert and pleasant, and that verbal productivity, orientation, memory, insight and judgment appeared adequate. As such, he concluded with diagnoses of alcohol dependence and a personality disorder. However, such examiner did not provide any reasons or objective clinical evidence to support such diagnoses, did not indicate the severity of such psychiatric disorder, and did not provide an opinion as to the affect of such psychiatric disability on employability, or the degree of functional impairment related thereto. Such examination in therefore inadequate for rating purposes, especially in light of the above mentioned contemporaneous conflicting private medical opinions. See Roberts v. Derwinski, 2 Vet.App. 387 (1992); Abernathy v. Principi, 3 Vet.App. 461 (1992). Moreover, during the VA general medical examination, the examiner indicated that the appellant had a history of alcoholic liver disease, but that current liver function tests were normal. He further indicated that the appellant's blood glucose level was elevated, but did not indicate the significance of such a finding. The Board has a duty to assist the appellant in the development of facts pertinent to his claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.159 (1994). This duty to assist involves obtaining relevant medical reports and examinations where indicated by the facts and circumstances of the individual case. See Schafrath v. Derwinski, 1 Vet.App. 599 (1991); Littke v. Derwinski, 1 Vet.App. 90 (1990); Murphy v. Derwinski, 1 Vet.App. 78 (1990); Roberts v. Derwinski, 2 Vet.App. 387 (1992); Abernathy v. Principi, 3 Vet.App. 461 (1992). Accordingly, the case is REMANDED for the following developments: 1. The RO should contact the appellant to determine the names, addresses, and dates of treatment of any physicians, hospitals or treatment centers (private, VA or military) who provided him with additional relevant medical treatment not already associated with the claims folder. After obtaining the appropriate signed authorization for release of information forms from the appellant, the RO should contact each physician, hospital, or treatment center specified by the appellant to obtain any and all medical or treatment records or reports relevant to the above mentioned claim. All pieces of correspondence, as well as any medical or treatment records obtained, should be made a part of the claims folder. If records are sought but not received, the claims folder should contain documentation of the attempts made to obtain the records. The appellant and his representative should also be informed as to the negative results. 38 C.F.R. § 3.159 (1994). 2. The RO should obtain any relevant medical or vocational records associated with the claim and determination regarding the veteran's employability made by the SSA, including evaluations performed by Dr. Wilkenfeld, Dr. Bragg, and Dr. Mehta. All correspondence, as well as any medical records or reports received should be associated with the claims folder. 3. The RO should then schedule the appellant for appropriate examinations to identify all disabilities that he may have, including psychiatric and general medical for purposes of determining whether he is permanently and totally disabled for pension purposes. In particular, the examiners are requested to give an opinion as to the effect of any disabilities on employability. All indicated tests and studies should be done. All subjective complaints and objective findings should be reported in detail. The claims folder should be made available to the examiners prior to the examinations, and the examiners are asked to review the claims folder prior to the examinations in order to reconcile the clinical reports of record. In addition, the examiners should render an opinion as to the severity of each disability found and the impact each disability has, whether singularly or in combination, on the appellant's employability. The examination should be conducted and reported in accordance with the guidelines set forth in the VA Physician's Guide for Disability Evaluation Examinations. 4. The RO should accord the appellant a social and industrial survey to ascertain his employment history, particularly with regard to his most recent employment and the reason(s) for terminating employment. The RO should also contact his most recent employers, to ascertain dates of employment, whether concessions were made for disability and reason(s) for termination of employment. Information concerning the types of duties that the veteran had at his last place of employment should also be obtained. If the appellant is currently residing at the Salvation Army, the RO should request a statement from the administrator or counselor as to the appellant's current responsibilities and work habits. 5. The RO should then reconsider the appellant's ratable psychiatric disability along with any additional disabilities found with application of the appropriate diagnostic codes in the Schedule for Rating Disabilities to determine the percentage of impairment caused by each disability. The RO should consider whether the appellant is permanently and totally disabled under the "average person" standard of 38 U.S.C.A. § 1502(a)(1) and 38 C.F.R. § 4.15 or the "unemployability" standard of 38 C.F.R. § 4.17. If the appellant does not meet the percentage requirements, a permanent and total evaluation for pension purposes should be considered under 38 C.F.R. § 3.321(b)(2). When this development has been completed, and if the benefit sought is not granted, the case should be returned to the Board for further appellant consideration, after compliance with appropriate appellate procedures, including issuance of a supplemental statement of the case. The statement should specifically set forth the reasons and bases for the decision, and should include the appropriate diagnostic codes and a discussion of their application to the appellant's disabilities. This statement should also discuss the applicability of the "average person" test of 38 U.S.C.A. § 1502(a)(1) and 38 C.F.R. § 4.15, the "unemployability" standard of 4.17, and the provisions of 38 C.F.R. § 3.321(b)(2). No action by the appellant is required until he receives further notice. The Board intimates no opinion, either legal or factual, as to the ultimate disposition warranted in this case, pending completion of the requested development. HOLLY E. MOEHLMANN 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).