BVA9500866 DOCKET NO. 91-50 597 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to a total rating based on individual unemployability due to service-connected disability, under 38 C.F.R. § 4.16(c). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. B. Weiss, Associate Counsel INTRODUCTION The veteran had active military service from November 1976 to November 1977. This appeal originally included the issue of the propriety of a reduction from a 70 percent to 50 percent schedular evaluation for schizo-affective type schizophrenia. An August 1993 Board of Veterans' Appeals (Board) decision restored a 70 percent rating and remanded the issue of a total rating under 38 C.F.R. § 4.16(c) (1993). REMAND The veteran contends that his service-connected schizophrenia, which is rated 70 percent, prevents him from obtaining and maintaining substantially gainful employment. He considers himself unemployed because he works only 1/2 hour per day. In his statement of March 1993, he asserts that he has failed in vocational rehabilitation-type programs because he cannot tolerate the stress of self-paced training, gets "antsy," is too easily distracted, and at least one program was "way over his head." The veteran was interviewed for private treatment by Yolanda Michaels, a private therapist, in September 1989, and it was Ms. Michaels' impression at that time that the veteran talked incessantly, "going faster" and "more intense," that he had "difficulty taking in," and felt a need to control anxiety by talking, but that he was likable and well meaning, with some insight, and ready to work [on therapy]. The records reflect that he received treatment through August 1992, but that no notes are in the claims folder regarding the treatment itself. J. Maiden, of the Airport Marina Counseling Service, wrote in August 1992 that the veteran is generally very anxious with limited insight capability. He appears to be unable to manage life stressors without excessive distress and assistance. At this time, it appears that employment would not be possible without leading to excessive distress. [The veteran] appears motivated for treatment, however, due to current level of functioning is not yet able to manage much responsibility and pressure. While we appreciate Ms. Maiden's opinion on the veteran's employability, we find that her contemporaneous treatment notes would offer a broader picture of the veteran's disabling symptoms, on which, presumably, she bases her conclusion of unemployability. A Department of Veterans Affairs (VA) social and industrial survey in January 1994 revealed the veteran's report that he works five days per week, 1/2 hour per day, and earns $10.00 per day. He delivers mail to the local Post Office for Quarterdeck Office Systems (Quarterdeck). He reported that he had received treatment at the VA Medical Center since February 1992, but these records have not been sought. Also, it does not appear that the regional office (RO) has determined whether the veteran's employment with Quarterdeck is "marginal." See Friscia v. Brown, No. 93-766 (U.S. Vet. App. December 21, 1994); 38 C.F.R. § 4.16(a) (1993). The VA 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. § 3.103(a) (1994). Accordingly, the case is REMANDED for the following actions: 1. The RO should contact the appellant and obtain the names and complete addresses of any and all sources who may have medical records pertinent to his claim since 1989. Such records would include, in particular, any records in the possession of the Social Security Administration, Ms. Maiden's (from the Airport Marina Counseling Service) and Ms. Michaels' contemporaneous clinical treatment records, and VA treatment records at the Brentwood facility. The appellant should also be asked to provide signed forms for release of such medical records and a completed updated employment statement (VA Form 21-8940). The RO should then attempt to obtain these records. 2. The RO should make a determination as to whether the veteran's employment at Quarterdeck is "marginal." This should include verification of the employment information provided by the veteran, and obtainment from Quarterdeck, if possible, of a statement regarding the veteran's wages, history as an employee, including any promotions or offers of full time employment extended to him or any limitations imposed and the reasons for such limitations. If employment has been terminated, the reason for termination must be considered. See Friscia v. Brown, No. 93-766, slip op. at 4 (U.S. Vet. App. December 21, 1994). 3. After the above records have been secured, the RO should schedule the veteran for a special VA psychiatric examination to determine the extent of schizophrenia, schizo-affective type. The examiner should comment upon the veteran's functional (social and industrial) impairment from the schizophrenia, by utilizing the Global Assessment of Functioning Scale found in the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders; an explanation of the score assigned should be provided by the examiner. The claims folder must be provided to the examiner prior to the examination. After completion of the above development, if any claim remains in a denied status, the RO should consider all of the evidence raised since the case was last forwarded to the Board and issue a supplemental statement of the case to the veteran and his representative. Reasonable response time should be allowed. Thereafter, the case should be returned to the Board for appellate consideration. The purpose of this REMAND is to secure clarifying data. No action is required by the veteran until he receives further notice. M. SABULSKY 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).