BVA9502527 DOCKET NO. 93-06 722 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to a permanent and total disability evaluation for nonservice-connected pension benefits. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD James A. Frost, Associate Counsel REMAND The veteran served on active duty during April 1970 and from July 1971 to October 1972. This appeal arises from a rating decision in February 1992 by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. The United States Court of Veterans Appeals (the Court) has set forth the process by which VA must adjudicate pension claims. That process includes listing all claimed disabilities, assigning a percentage rating from VA's schedule for rating disabilities to each such disability and applying the "average person" standard of 38 U.S.C.A. § 1502(a)(1) and 38 C.F.R. § 4.5, the "unemployability" standard of 38 C.F.R. §§ 4.16 and 4.17 and the extraschedular criteria of 38 C.F.R. § 3.321(b)(2). Talley v. Derwinski, 2 Vet.App. 282 (1992); Roberts v. Derwinski, 2 Vet.App. 387 (1992); Brown v. Derwinski, 2 Vet.App. 444 (1992); and Abernathy v. Derwinski, 2 Vet.App. 534 (1992). As the RO did not follow the correct procedures in this case, a remand for additional development and readjudication is required. The RO listed and rated only three disabilities: A back disorder, evaluated as 10 percent disabling; a liver disorder, evaluated as 10 percent disabling; and a hernia, evaluated as 10 percent disabling, with a combined 30 percent rating. With reference to the veteran's spine, the record shows that, in 1977, he underwent a posterolateral fusion of L5-S1 and, subsequently, received diagnoses of degenerative disc disease of the lumbar spine and spondylolisthesis of L5-S1. The record also shows disability of the cervical spine. In 1976, the veteran underwent excision of a ruptured disc at C5 and fusion of C5-6; subsequently, a diagnosis of degenerative disc disease at C6-7 was rendered. The Hearing Officer, in a decision in October 1992, assigned a noncompensable evaluation for the cervical disc pathology under code 5293. 54 With reference to the liver, the record shows a history of cirrhosis. With references to hernias, the record shows that the veteran has both a postoperative ventral incisional hernia and an umbilical hernia. The veteran has, or claims to have, numerous additional disabilities which were not listed or rated by the RO. The principal ones are a psychiatric disorder or disorders and congestive heart failure. With reference to the veteran's psychiatric status, various diagnoses have been rendered, including conversion disorder, antisocial personality disorder and polysubstance dependence. With reference to his cardiac status, although the veteran submitted an office note by Enrique T. Yap, M.D., his primary care physician, which showed "heart and lungs normal" in October 1992, he also submitted a certification by Dr. Yap to the State of Illinois dated in April 1992 which stated that the veteran had been disabled from working by reason of congestive heart failure. The record also shows that the veteran has or claims to have the following additional disabilities: Chronic cholecystitis, with cholelithiasis; obesity; hemorrhoids; a history of essential hypertension; tension headaches; a thyroid disorder; arthritis; and diabetes. In his testimony at a personal hearing in October 1992, the veteran testified that he was unable to engage in substantially gainful employment due to physical disabilities and the effects of prescription medications. However, an administrative law judge of the Social Security Administration (SSA), who awarded the veteran Social Security disability insurance benefits in August 1991, found him to be disabled by reason of psychiatric disability. The Court has held that, although SSA's decisions with regard to unemployability are not controlling for purposes of VA adjudications, the SSA's decision is pertinent to a determination of an appellant's ability to engage in substantially gainful employment. The decision of the SSA administrative law judge cannot be ignored and, to the extent that its conclusions are not accepted, reasons and bases should be given therefor. Martin v. Brown, 4 Vet.App. 136, 140 (1992) (citations omitted). In the veteran's SSA appeal, there was a disagreement between expert witnesses, which the administrative law judge resolved in the veteran's favor. One psychologist testified that the veteran's conversion disorder resulted in only slight restriction of his activities of daily living and moderate difficulty in social functioning. The veteran, according to this psychologist, had deficiencies of concentration only seldom and there was no evidence of episodes of deterioration in work-like settings. On the other hand, the other psychologist, who had administered psychological tests to the veteran, found that he often had deficiencies of concentration due to conversion disorder and then had continual episodes of decompensation in the form of deterioration of adaptive behaviors. He described the veteran as "virtually a complete hypochondriac." He concluded that the veteran had little or no ability to handle work stresses, function independently, maintain emotional stability or demonstrate reliability. The Board finds that, prior to a final disposition of the appeal, additional medical information about the veteran's physical and mental status should be secured by way of thorough and contemporaneous medical, orthopedic and psychiatric examinations. On remand, it will also be necessary for the RO to follow the process by which pension claims are to be adjudicated, in accordance with the Court's holdings. This case is REMANDED to the RO for the following: 1. The RO should request that the veteran identify all physicians and medical facilities, VA or non-VA, which have treated him for physical disease or injury or for psychiatric illness since October 1992. The RO should attempt to obtain copies of all such clinical records. 2. The RO should schedule the veteran for general medical and orthopedic examinations. It is imperative that the examiners review the veteran's medical records in his claims folder prior to the examinations. The medical examiner should perform a complete examination of all bodily systems, except for the spine. All indicated special diagnostic studies should be performed. The medical examiner should determine each and every disease or injury which the veteran currently has and describe the symptomatology of each such disorder. He or she should offer an opinion as to the effect of such physical disabilities on the veteran's ability to perform either manual labor or sedentary work. The orthopedic examiner should determine the current symptoms of the veteran's disabilities of the lumbosacral spine and cervical spine and, also, determine if he has arthritis of the spine or other joints. He or she should offer an opinion as to the effect of musculoskeletal disabilities on the veteran's ability to perform either manual labor or sedentary work. 3. The RO should schedule the veteran for psychological testing and a psychiatric examination. It is imperative that the examiners review the veteran's psychological and psychiatric records in his claims folder prior to the examinations. The psychologist should offer an opinion as to the veteran's adaptability for employment. A psychiatrist should determine all appropriate diagnoses, using the multiaxial system of The American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders-3rd edition- Revised, and, under Axis V, assign a Global Assessment of Functioning (GAF) score and explain how the GAF score was derived and its meaning. 4. The RO should then readjudicate the veteran's pension claim, following all applicable laws and regulations and the decisions of the Court. If the decision remains adverse to the veteran, he and his representative should be provided with an appropriate supplemental statement of the case an opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration. The purposes of this REMAND are to provide the veteran with due process of law and to obtain clarifying medical information. By this REMAND, the Board intimates no opinion, legal or factual, as to the ultimate disposition of the appeal. No action is required of the veteran until he receives further notice. 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) (1993).