BVA9508180 DOCKET NO. 92-22 416 ) 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: Paralyzed Veterans of America, Inc. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. J. Alibrando, Associate Counsel INTRODUCTION The veteran served on active duty from June to September 1953. This appeal arises from a February 1992 rating decision in which the RO denied entitlement to a permanent and total disability rating for pension purposes. The Board remanded the case in February 1994 for additional development of the evidence. REMAND The veteran contends that he is permanently precluded from performing any substantially gainful employment due to a psychiatric disability. In February 1994, the Board remanded the case for additional development of the evidence, including additional VA examinations. The June 1994 VA psychiatric examination was conducted by the same examiner who evaluated the veteran in April 1992. The examiner stated that no background medical history was elicited and referred to the April 1992 report. The examiner rendered a diagnosis of chronic alcoholism by history. However, VA medical records, including a July 1992 hospital summary, include diagnoses of schizophrenia by history. In addition, the examiner failed to include findings regarding the degree of social and industrial impairment required to determine the current degree of disability. Additional VA psychiatric evaluation by a examiner who has not previously evaluated the veteran is necessary in order to resolve the conflicting diagnoses. Moreover, at the time of the prior remand, it was pointed out that blood studies were to be conducted and attention was drawn to blood studies done in April 1992. No blood studies were done at the most recent VA examination. The VA has a duty to assist the veteran 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). Fulfillment of the statutory duty to assist includes the conduct of a thorough and contemporaneous medical examination, one which takes into account the record of prior medical treatment, so that the evaluation of the clinical disability will be a fully informed one. Green v. Derwinski, 1 Vet.App. 121 (1991). Several cases have been decided by the U.S. Court of Veterans Appeals (Court) which impact significantly on the adjudication of pension cases. In Roberts v. Derwinski, 2 Vet.App. 387 (1992), the Court held that each disability in a pension case must be assigned a percentage rating, that the RO should discuss the diagnostic codes used in denying a claim, that a rating decision may not be based on an examination which was conducted before all relevant evidence was gathered, and that the effect of pain on employability must be addressed. In Brown v. Derwinski, 2 Vet.App. 444 (1992), the Court held that a pension claim must be considered under both the average person, 38 U.S.C.A. § 1502(a) (West 1992); 38 C.F.R. 4.15 (1994), and the unemployability standards, 38 C.F.R. §§ 3.321, 4.17 (1994).Additional VA medical records were obtained by the RO in March 1994. Included are outpatient records dated in October 1991, March 1992 and April 1992 which show that the veteran reported working odd jobs. An October 1993 outpatient record shows that the veteran requested a return to work slip for the post office. The examiner indicated that the veteran could return to duty. The Board also notes that in his November 1991 claim for pension, the veteran indicated that he was last employed in May 1990. The RO should request the veteran to submit a employment statement and to explain in writing the reasons for his request for a return to work slip. Finally, the VA has a duty to acknowledge and consider all regulations which are potentially applicable to the assertions and issues raised in the record, and to explain the reasons and bases for its conclusion. Schafrath v. Derwinski, 1 Vet.App. 589 (1991). Under the circumstances of this case, we find that additional development is required. Accordingly, the case is REMANDED to the RO for the following: 1. The RO should contact the veteran and request him to furnish the names and addresses of all health care providers from whom he has received treatment from November 1993 to the present time. Where appropriate, consent forms for the release to the VA of any private medical records should be obtained from the veteran. Thereafter, the RO should obtain legible copies of all identified treatment records and associate them with the claims folder. 2. The veteran should be requested to submit an up-to-date employment statement listing all employment from May 1990 to the present time, including hours worked, nature of the employment and salary earned. In addition, he should be asked to explain the circumstances behind his request for a return to work slip for the post office. 3. After the above-mentioned records have been obtained, the veteran should be afforded a VA general medical examination and special VA pulmonary examination to determine the nature and extent of all disabilities present. Such tests as the examining physicians deem necessary, should be performed, including blood studies. If any laboratory tests are abnormal, the disability (if present) underlying such condition should be specified. In this regard, the general medical examiner's attention is directed to the results of blood and serum tests done in April 1992. The claims folder should be made available to the examining physicians prior to the examinations so that they may review pertinent aspects of the veteran's medical history and comment upon the effects of the disabilities upon the veteran's ordinary activity and on how they impair him functionally. Each examiner should render an opinion as to what effect the disabilities found have on the veteran's ability to work, and state whether his disabling conditions are susceptible to improvement through appropriate treatment. 4. In addition the examinations requested above, the veteran should be afforded a comprehensive VA psychiatric examination by an examiner who has not had the opportunity to previously examine 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. In the event that the examiner determines the presence of an acquired psychiatric disorder, the examiner should render an opinion for the record as to whether any alcoholism is primary in nature or whether it is secondary to a psychiatric disorder. The factors upon which the opinions are based must be set forth. 5. 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 examinations do not include all test reports, special studies or opinions requested, appropriate corrective action is to be implemented. 6. When the requested developments have been completed, the case should be reviewed by the RO and a rating action prepared which lists all the veteran's disabilities and the percentage evaluation assigned each disability. Moreover, the rating action should address the issue of whether the veteran's alcoholism is of willful misconduct origin. If the decision remains adverse to the appellant, he and his representative should be furnished a supplemental statement of the case which includes a recitation of the percentage rating for each diagnosed disability; which cites the appropriate diagnostic codes and provides a discussion of their applicability to the veteran's disabilities; and which discusses the application of the two standards (average person and unemployability under 38 U.S.C.A. § 1502(a); 38 C.F.R. §§ 3.321, 4.15, and 4.17) by which a permanent and total disability rating for pension purposes may be assigned. The appellant and his representative should then be given an opportunity to respond. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration. C.W. SYMANSKI 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).