BVA9503133 DOCKET NO. 93-11 734 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to service connection for psychiatric disorder. 2. Entitlement to a permanent and total disability rating for pension purposes. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J. Johnston, Associate Counsel INTRODUCTION The veteran had active service from October 1948 to September 1949, and from October 1950 to November 1951. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 1992 rating decision of the Pittsburgh, Pennsylvania, Department of Veterans Affairs (VA) Regional Office (RO), which denied entitlement to service connection for a psychiatric disorder and which denied a permanent and total disability rating for pension purposes. REMAND The veteran's claim for entitlement to a permanent and total disability evaluation for pension purposes appears well grounded in that it is supported by plausible evidence of his psychiatric disability which the July 1992 VA examiner found would cause "significant occupational, psychological, and social functioning difficulties." The veteran is also noted to have hypertension. 38 U.S.C.A. § 5107(a) (West 1991). However, a review of the claims folder reflects that the veteran also indicates that he is disabled by reason of disorders of his right leg, sinuses, hypercholesteremia, and tachycardia. The veteran has not been previously provided a VA general medical examination and this will be necessary prior to final appellate review. The veteran has reportedly received treatment from K. S. Patel, M.D., since 1988 for hypertension, a "nervous condition," and hypercholesterolemia. In his January 1992 letter, Dr. Patel indicated that the veteran's blood pressure had been 190/120 in 1988 and 144/80 in September 1991. Records of the veteran's treatment with Dr. Patel should be obtained and considered in evaluating his case. The July 1992 VA psychiatric examiners found that the veteran had Axis I psychiatric diagnosis of panic disorder and dysthymia. It was also opined that the veteran would continue to have "significant occupational, psychological, and social functioning difficulties." However, this examination did not provide a Global Assessment of Functioning score and did not clarify the degree of social and industrial impairment that resulted from psychiatric disability. Another psychiatric examination is indicated. On the veteran's VA Form 21-526, Veterans Application for Compensation or Pension, the veteran indicated that he performed sales for "D&V Imports." However, the veteran also indicated that he was not presently employed. During a January 1992 VA examination, the veteran reported that he had been self-employed performing automobile repair; on his VA Form 9, Appeal to Board of Veterans' Appeals, he indicated that he had had no employment since late 1991. Additional development of the veteran's actual employment history is necessary prior to final appellate review. Regarding the veteran's potential entitlement to a permanent and total rating for pension purposes, we note that the United States Court of Veterans Appeals (Court) has established a two-pronged test of pension eligibility predicated upon the provisions of 38 U.S.C.A. § 1521. It is required that the veteran demonstrate (1) service during a period of war, in addition to (2) permanent and total disability. Permanent and total disability may be shown in one of two ways: Either (1) the veteran must be unemployable as a result of a lifetime disability, or (2) if not unemployable, he must manifest a lifetime disability which would render it impossible for the average person to follow substantially gainful employment. Brown v. Derwinski, 2 Vet.App. 444, 446 (1992). The veteran in this case has clearly met the threshold requirement by his service in 1950 and 1951. 38 U.S.C.A. § 101(11), (12) (West 1991). The veteran must have a disability ratable, alone or in combination with other disabilities, at 100 percent, or he must have the specific disabilities outlined including the permanent loss of use of both hands, both feet, one hand and one foot, or the sight of both eyes, or be permanently helpless or permanently bedridden. 38 C.F.R. § 4.15 (1994). This is the "average person" standard of 38 U.S.C.A. § 1502(a)(1) (West 1991). Next, it must be determined whether the veteran is, in fact, unemployable as a result of lifetime disability. Such determination is based, initially, upon the finding that, if the veteran suffers from a single disability, it is ratable at 60 percent or more or, if from two or more disabilities, at least one disability is ratable at 40 percent or more, and there is sufficient additional disability to combine the rating to 70 percent or more. 38 C.F.R. § 4.16 (1994). However, if the evidence establishes that the applicant for pension is basically eligible, but fails to meet the disability requirements based on percentage standards of the rating schedule, a permanent and total disability rating may be approved on an extraschedular basis where such an applicant is found to be unemployable by reason of his disability or disabilities, age, occupational background, and other related factors. 38 C.F.R. § 3.321(b)(2). Although a veteran may fail to meet the schedular requirements, he is still eligible for a permanent and total disability rating based upon this extraschedular evaluation, and the RO must provide an analysis of extraschedular consideration. Because additional development is required, the case is REMANDED to the RO for the following actions: 1. The veteran should be requested to complete another VA Form 21-526, Application for Pension, and should be requested to identify all disabilities which he claims entitle him to a permanent and total disability evaluation for pension purposes. He should be afforded the opportunity to submit additional evidence in support of his claim and to identify sources of medical treatment, private or VA, which have treated him for any claimed disabilities. If he identifies any medical treatment for which records are not on file, he should be assisted in obtaining them. In any event, with the veteran's assistance and consent, copies of the veteran's treatment with K. S. Patel, M.D., 415 Highland Avenue, New Castle, PA 16101 should be obtained and added to the claims folder. 2. The RO should ask the veteran if he has ever applied for Social Security disability benefits and, if so, the RO should contact the Social Security Administration and obtain copies of all medical and administrative records compiled in connection with the veteran's claim. Any records so obtained should be added to the claims folder. 3. The veteran should be specifically requested to supply an employment history, to the best of his ability, since he was separated from service in November 1951, including the names and addresses of employers who have refused him employment. With the veteran's consent, the RO should contact any named source to determine whether concessions due to disability were made during any employment, why employment was terminated, or why he was denied employment. Any material obtained should be added to the claims folder. 4. After completion of the above development to the extent possible, the veteran should be afforded VA general medical examination with the aim of evaluating all physical disabilities which the veteran has identified. The claims folder, including all evidence obtained during the remand, and a copy of this remand decision should be made available to the examiner prior to examination for thorough review. The examination should be conducted in accordance with the Physician's Guide for Disability Evaluation Examinations. All appropriate testing and evaluations and findings should be reported in legible detail. In addition to providing an accurate assessment of the veteran's present physical disabilities, the examiner should express an opinion about the veteran's physical ability to perform actions such as standing, walking, sitting, bending, stooping, and lifting (what weight), with the aim of providing an accurate assessment of the veteran's physical capabilities. 5. After completion of the above development, the veteran should then be afforded an examination by a VA psychiatrist who has had no previous contact with him. The claims folder, including all evidence obtained during the remand, and a copy of this remand decision should be made available to the examiner prior to any examination for thorough review. The examination should be conducted in accordance with the Physician's Guide for Disability Evaluation Examinations and should include all appropriate testing. After reviewing the claims folder and conducting the thorough psychiatric examination, the examiner should ensure that he objectively relates all pertinent psychiatric symptoms to social and industrial adaptability. Additionally, the examiner should provide a Global Assessment of Functioning score and specifically define what the assigned score represents in accordance with the appropriate edition of the American Psychiatric Association's, Diagnostic and Statistical Manual for Mental Disorders. Finally, the examiner should express an opinion as to whether and to what extent, if any, the veteran's psychiatric disorder interferes with or impairs the veteran's ability to perform any substantially gainful employment. 6. When the requested development has been completed, the case should be reviewed by the RO and a rating action prepared which lists all of the veteran's disabilities and the percentage evaluation assigned for each disability. Consideration should be accorded all relevant provisions of Title 38, United States Code and 38 C.F.R. Parts 3 and 4, and each of the veteran's disabilities should be listed and rated under the VA's Schedule for Rating Disabilities, 38 C.F.R. Part 4, with there being special notation and discussion of the diagnostic criteria utilized for rating each disorder. Additionally, the RO should consider the two standards by which a permanent and total disability rating for pension may be assigned, including the "average person" and "unemployability" tests outlined in 38 U.S.C.A. § 1502(a)(1) (West 1991), and 38 C.F.R. §§ 4.15 and 4.17 (1993) and should consider and provide an analysis of the applicability of an extraschedular evaluation in accordance with 38 C.F.R. § 3.321(b)(2) (1993). If any benefit sought on appeal is not granted, the veteran and his representative should be furnished with a supplemental statement of the case and afforded a reasonable opportunity to respond. The record should then be returned to the Board for further appellate review. No action by the veteran is required until he receives further notice. THOMAS J. DANNAHER 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).