BVA9504824 DOCKET NO. 93-04 116 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a permanent and total disability rating for pension purposes. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J.R.King, Associate Counsel INTRODUCTION The veteran served on active duty from September 1966 to May 1967. This matter is before the Board of Veterans Appeals (Board) on appeal from a March 1992 rating determination of the Department of Veterans Affairs (VA) Regional Office (RO) located in St. Petersburg, Florida, which denied the veteran's claim for VA nonservice-connected disability pension benefits. He testified at a hearing before a traveling member of the Board in December 1993. REMAND The veteran in this case is a 43 year old, high school graduate, who last worked reportedly in January 1990 as a security guard. In January 1990, he sustained a gunshot wound to the chest and abdomen while attempting to protect a woman from two attackers. The veteran was treated in a hospital for over a year following this incident, having sustained injuries to several internal organs. By administrative decision in January 1992, the RO determined that the injuries sustained by the veteran in January 1990, while aiding a robbery victim, were not due to his own willful misconduct. The veteran claims, in essence, that the injuries resulting from his gunshot wound have resulted in complications and disabilities which permanently prevent him from maintaining gainful employment. The analytical criteria which the RO must follow when evaluating a veteran's claim for a permanent and total disability rating for pension purposes has been set forth by the United States Court of Veterans Appeals (the Court) in Talley v. Derwinski, 2 Vet.App. 282 (1992); Roberts v. Derwinski, 2 Vet.App. 387 (1992); and Brown v. Derwinski, 2 Vet.App. 444 (1992). In Talley, 2 Vet.App. at 284-88, the Court held that VA pension eligibility may be based on subjective and objective standards. In Roberts, 2 Vet.App. at 389-91, the Court held that before a total and permanent disability rating can be awarded, an evaluation must be performed under VA's Schedule for Rating Disabilities, 38 C.F.R. Part 4, to determine the percentage of impairment caused by each disability and that a determination must be made as to whether the veteran is entitled to a total and permanent rating on an extra-schedular basis must be made under 38 C.F.R.§ 3.321(b)(2). In Brown, 2 Vet.App. at 446-47, the Court stated that in evaluating a claim for pension benefits, agency adjudicators must enunciate which standard, objective or subjective, under 38 U.S.C.A.§ 1502(a) was being applied to the veteran's claim. In the foregoing cases, the Court set forth a two-pronged test for VA pension eligibility. Specifically, the veteran must be found to have served for ninety days or more during a period of war. It is noted here that the veteran served on active duty from September 1966 to May 1967. In that a period of wartime service in the Vietnam era is recognized from August 5, 1964 to May 7, 1975, the Board finds that the threshold requirement of requisite service has been satisfied. 38 U.S.C.A.§§ 101(29), 1521(j)(3) (West 1991). The second prong of the test requires that the veteran be permanently and totally disabled. In the above noted cases, the unemployability test, or "subjective" standard, which arises from 38 U.S.C.A.§ 1521(a) (West 1991), must be applied. This test mandates that where it is shown that the veteran's disabilities meet the percentage requirements of 38 C.F.R.§ 4.16 (1994), and it is shown that they are permanent in nature, a determination should be made as to whether such disabilities render him or her incapable of substantially gainful employment. Under this test, the veteran meets the requirements of the law for the benefit at issue if he or she is individually unemployable as a result of a lifetime disability. 38 U.S.C.A.§ 1502(a)(1) (West 1991) mandates that total disability will be found to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation, provided that the impairment is reasonably certain to continue throughout the life of the disabled person. This clause embodies the "objective" standard, whereby if the veteran is not unemployable, he must suffer from a lifetime disability which would render it impossible for the average person with the same disability to follow a substantially gainful occupation. As with the analysis under 38 U.S.C.A.§ 1521, the RO must apply the percentage standards of 38 C.F.R.§ 4.16 and consider entitlement to an extraschedular evaluation under 38 C.F.R.§ 3.321(b)(2) as set forth in Schafrath v. Derwinski, 1 Vet.App. 589 (1991). Another RO rating decision is required, discussing these two tests. The Court has also held that, where total disability is at issue and the VA is on notice that the veteran is in receipt of benefits administered by the Social Security Administration (SSA), records pertinent to that award, including the supporting medical records, must be obtained and made a part of the claims file, as they may be relevant. Murincsak v. Derwinski, 2 Vet.App. 363 (1992). At the December 1993 hearing, the veteran testified he was in receipt of SSA disability benefits, and indicated that he was receiving ongoing medical treatment at the Jackson Memorial Hospital in Miami, most recently in early December 1993. Although the record on appeal contains a copy of a May 1991 SSA disability award letter, it is not clear that all medical records pertaining to that determination were made a part of the claims folder. See Collier v. Derwinski, 1 Vet.App. 413 (1991). The most recent medical data from Jackson Memorial Hospital dates from no earlier than October 1993. The most recent VA medical examination, that of February 1992, reflects that the examiner found an exercise test to be unnecessary since there was no cardiac history in this case. The Board notes that in June 1993, however, clinical records from Jackson Memorial Hospital show a diagnosis of unstable angina. Additionally, the veteran testified recently that he is currently treated with a Nitroglycerin patch and Nitroglycerin tablets for hypertension and chest pain. The rating action on appeal does not list or contain a rating under the schedule for the veteran's apparent cardiac disability. Likewise, the February 1992 report of VA examination reflects the veteran's history of in-service treatment for globus hystericus, but notes that the veteran's lengthy hospitalization during the recovery from his gunshot wounds resulted in depression. Depression is a disability for which no schedular rating is assigned in the action on appeal, and the Board is of the opinion that additional development, through current VA cardiovascular, psychiatric and general medical examinations, would be useful in this case. In view of the foregoing, the case is REMANDED for the following action: 1. The RO should obtain and associate with the claims folder pertinent records from the SSA, including a copy of any awarding him SSA benefits, and all medical evidence used in connection with the disability award of which the veteran testified at his hearing in January 1991. U.S.C.A.§ 5106; 38 C.F.R.§ 3.201 (1994). 2. After obtaining from the veteran the necessary release, the RO should obtain for inclusion in the claims folder copies of medical records of his treatment at the Jackson Memorial Hospital, Miami, Florida, from October 1993 to present. 3. The veteran should be afforded a VA psychiatric examination to determine the nature and extent of any psychiatric disorder which may now be present. The veteran's claims folder must be made available to the examiner in conjunction with the examination. The examiner should determine whether or not the veteran now suffers any nervous disability and comment on any functional incapacity occasioned thereby. 4. The veteran should also be afforded a VA cardiovascular examination in order to ascertain the nature and severity of any heart disease. Any heart disease found should be classified as to functional incapacity in accordance with the system of classification employed by the American Heart Association. The claims folder should be available to the examiner for review. 5. The veteran should be afforded a VA social and industrial survey in order to assess his employment history, day-to-day functioning ability, and a determination as to whether or not he is disabled as to manual and/or sedentary employment. A written copy of the report should be associated with the claims folder. 6. The RO should then review all of the new evidence of record and if any change in the ratings assigned for nonservice- connected pension benefits is warranted, or if the veteran is found to have any ratable disability not listed and evaluated in the prior rating actions of record, a new rating decision should be prepared to ensure that each of the veteran's disabilities has been identified and assigned a percentage evaluation. Following rating of each disability, the RO should assess and assign a combined rating under 38 C.F.R.§ 4.25 (1994). 7. When the foregoing is accomplished, the RO must issue another rating decision applying the "average person test" set forth in 38 U.S.C.A.§ 1502(a)(1) (West 1991) and 38 C.F.R.§ 4.15 (1994). If a disability or disabilities listed as permanently and totally disabling in 38 C.F.R.§ 4.15 is present, or if a total schedular rating is present and the disability is permanent, then the average person standard under the provisions of 38 U.S.C.A.§ 1502(a)(1) is met. The RO shall ensure that the decision states clearly that the average person standard is the basis for the finding of a permanent and total disability. However, if a total schedular disability is present, but not permanent, the discussion should clearly indicate why the average person standard is not met. 8. The RO should next consider the "unemployability" standard of 38 C.F.R.§ 4.17 (1994). Under this criteria, it may be shown that the veteran is unemployable as a result of a lifetime disability. When the percentage requirements of 38 C.F.R.§ 4.16 are met, and the disabilities are of a permanent nature, a rating of permanent and total disability will be assigned if the veteran was found to be unable to secure and follow substantially gainful employment by reason of such disability. 9. Thereafter, the RO should consider 38 C.F.R.§ 3.321(b)(2) (1994). A permanent and total disability evaluation for pension purposes may be assigned under this provision when a veteran, who is basically eligible, fails to meet the disability percentage requirements, but is found to be unemployable by reason of disability or disabilities, age, occupational background, and other related factors. After the above development has been completed, if the decision remains adverse to the veteran, a supplemental statement of the case should be prepared and forwarded to the veteran and his representative, and they should be given a reasonable opportunity to respond thereto. The claim should then be returned to the Board, together with all additional evidence requested, for final appellate consideration. (CONTINUED ON NEXT PAGE) The Board intimates no opinion as to the ultimate outcome of this case. The veteran need take no action until notified. J.F. GOUGH 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).