BVA9508360 DOCKET NO. 92-20 838 ) 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 rating for pension purposes. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Carolyn Wiggins, Associate Counsel INTRODUCTION The veteran served on active duty from April 1964 until December 1969. This appeal arises from a December 1991 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois which denied the veteran's claim for a permanent and total disability rating for pension purposes. This case was remanded by the Board of Veterans appeals (Board) in June 1993 for further development of the evidence. REMAND The remand development called for by the Board in June 1993 was completed, as requested. This second remand of the case should not be construed to imply otherwise. The United States Court of Veteran's Appeals (Court) rendered an opinion in December 1994 which affects the evaluation of neuropsychiatric disorders. Massey v. Brown 7 Vet.App. 204 (1994). The Court cautioned against rating psychiatric disorders based upon rote recitation of standard findings from psychiatric examinations without effectively relating the findings to the rating criteria, and based upon factors outside of the rating criteria. The Board has reviewed the VA psychiatric examinations of the veteran in May 1992 and August 1993 and finds that they are inadequate for rating purposes, when measured against what the Court required in the Massey case. In addition, there are discrepancies between the reports of the veteran's responses during the evaluation and the examiners conclusions as to his degree of disability. While we have no basis for questioning the adequacy of the August 1993 examination for purposes of clinical treatment, there are problems with it from an adjudicative perspective. In the history section it was noted that the veteran remained unemployed, that he sat in front of a computer virtually all of the time, and that his time was spent sleeping, eating and writing. He reported that he had no friends and went nowhere. The examiner indicated that the veteran had multiple somatic complaints. On examination, it was noted that the veteran saw designs in his head which were artistic creations and he (the veteran) did not think they were run of the mill auditory or visual hallucinations. Suspiciousness was reported. The veteran indicated that he would seek to hurt other people but would not kill them. There was an inference that if someone needed to be killed, he would seek to have someone other than himself do it. It was also reported that the veteran was bothered by feelings of insecurity and inferiority. In her remarks the examiner commented that the veteran demonstrated loose association, and that he was extremely tense and confronting at the beginning of the examination, but by the end of the examination he was more comfortable and understanding, after having some matters explained to him. The diagnosis was bipolar disorder, by history. We don't know what the examiner's opinion was of the reported social isolation, the continued unemployability, the somatic complaints, the presence or absence of hallucinations, the thoughts of doing harm to others, the reported suspiciousness and the insecurity and inferiority as representing current manifestations of the service-connected psychosis. A GAF score was not assigned. In order to meet the requirements of the Court it is necessary to again remand this claim for development of the record. The Court has rendered several opinions which affect the development and analysis of claims for permanent and total disability ratings for pension purposes. As long as a further remand is required here, we are going to articulate more comprehensive standards for rating board review once the medical development has been completed. Accordingly, this case is REMANDED to the RO for the following actions: 1. The RO should schedule the veteran for a comprehensive VA psychiatric examination by a psychiatrist who has not previously examined the veteran. This study must be conducted in accordance with the VA Physician's Guide for Disability Evaluation Examinations. All indicated tests, including appropriate psychological studies with applicable subscales, must be conducted. The claims file must be made available to and reviewed by the examiner prior to the requested study. The examiner must assign a Global Assessment of Functioning Score consistent with the American Psychiatric Association's DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL DISORDERS (3d ed. rev., 1987), and explain what the assigned score represents. A complete rationale for any opinion expressed must be provided. 2. Following completion of the foregoing, the RO must review the claims folder and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, including if the.requested examination does not include all test reports, special studies or opinions requested, appropriate corrective action is to be implemented. 3. The RO should then review all the evidence obtained as a result of this remand. If any change in the rating assigned for the veteran's psychiatric disorder is warranted by the new evidence, a new rating for the psychiatric disorder should be assigned. Roberts v. Derwinski, 2 Vet.App. 387 (1992). 4. The evaluations assigned for all of the veteran's disabilities which can be considered for pension purposes should be combined under the combined ratings table of the Rating Schedule. 38 C.F.R. § 4.25 (1994). The RO should then consider whether what the Court has referred to as the "average person" test provided under 38 U.S.C.A. § 1502 (a) (1) (West 1991) and 38 C.F.R. § 4.15 (1994) is applicable. Talley v. Derwinski, 2 Vet.App. 282 (1992); Brown v. Derwinski, 2 Vet.App. 444 (1992). 5. If the benefit sought on appeal remains denied, the RO should consider whether both the percentage requirements under 38 C.F.R. § 4.16(1994) and the permanency requirement under 38 C.F.R. § 4.17 (1994) are met, and if so whether the veteran is unemployable as a result of what the Court has referred to as "lifetime" disabilities. Brown, 2 Vet.App. at 497. 6. If the veteran has been found to not meet the percentage requirement under 38 C.F.R. § 4.16(1994), the RO should consider whether the veteran nevertheless meets the criteria for a determination of "unemployability" under 38 C.F.R. § 3.321 (b) (2) (1994). 7. If the benefit sought on appeal remains denied, a supplemental statement of the case should be furnished the veteran and his representative, containing an explanation of the RO's latest deliberations under all of the foregoing criteria of the "average person" and "unemployability" standards. The supplemental statement of the case should also contain the criteria of the Rating Schedule under which each of the veteran's ratable disabilities has been evaluated. If the benefit sought remains denied, the veteran and his representative should be provided with an appropriate supplemental statement of the case and given the opportunity to respond. The case should then be returned to the Board for further appellate review. BRUCE E. HYMAN 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).