Masors v. Derwinski Docket No. 90-540

Whether evidence submitted to reopen previously disallowed claim is “New and Material Evidence ” is question of law which Court of Veterans Appeals reviews de novo. 38 U.S.C.A. §§ 7104(b), 7261(a)(1).
UNITED STATES COURT OF VETERANS APPEALS No. 90-540 (Submitted February 20, 1991/Decided February 7, 1992)


UNITED STATES COURT OF VETERANS APPEALS
No. 90-540
Bruce N. Masors, Appellant,
v.
Edward J. Derwinski,
Secretary of Veterans Affairs, Appellee.
On Appeal from the Board of Veterans’ Appeals
(Submitted February 20, 1991 Decided
February 7, 1992)
William G. Smith was on the pleadings for appellant.
Raoul L. Carroll, General Counsel, Barry M. Tapp, Assistant General
Counsel, Pamela L. Wood, Deputy Assistant General Counsel, and Deborah W.
Singleton were on the pleadings for appellee.
Before NEBEKER, Chief Judge, and IVERS and STEINBERG, Associate
Judges.
STEINBERG, Associate Judge: The veteran, Bruce N. Masors, appeals an
April 3, 1990, decision of the Board of Veterans’ Appeals (BVA or Board)
denying his claims for service connection for his current psychiatric
disorders and for non-service-connected pension. We find that the
Veterans’ Administration (now the Department of Veterans Affairs) (VA)
breached its statutory duty to assist the veteran because it failed to try
to obtain psychiatric examination reports and Social Security records that
the record on appeal clearly indicated were pertinent to the veteran’s
pension claim. Furthermore, the Board failed to provide an adequate
statement of reasons or bases for its implicit rejection of the veteran’s
evidence on that claim. Accordingly, we retain jurisdiction and remand
the record to the Board with instructions that VA fulfill its duty to
assist by obtaining the relevant
records on that claim, and that the BVA promptly readjudicate the pension
claim and provide an adequate statement of reasons or bases regarding its
evaluation of the veteran’s evidence on that claim. We affirm the Board’s
denial of the service-connected compensation claim.
I. Background
The veteran served on active duty in the U.S. Air Force from February
1972 to July 1974. R. at 1. His service medical records indicate that in
June and July 1973 he was treated for depression, which was diagnosed as ”
minor” and “mild”. R. at 19, 20. On his separation examination form ,
the veteran indicated that he had suffered from “depression or excessive
worry” and “nervous trouble”. R. at 26. On the same form, the examining
physician stated: “Depression and nervous trouble refer to personal
problems, treated in mental health clinic, No Comp., No Seq.” R. at 27,
29.
The first indication in the record of a post-service diagnosis of
psychiatric problems is in October 1982, when the veteran requested
consultation with a VA psychiatrist for purposes of being referred to
vocational counseling. The VA psychologist noted that the veteran had
been seeing a therapist regularly since December 1981. Supp. R. at 61.
The examination report also indicated that the veteran had trouble keeping
jobs and that the longest he had held a job since service was 6 months.
Supp. R. at 61. The psychiatrist reported an impression of “marked
personality disorder” and recommended admission of the veteran to the VA
day treatment clinic (DTC). Supp. R. at 61-62.
The veteran was admitted to the DTC in November 1982. The admission
report, dated November 26, 1982, contains a diagnosis of “Histrionic
Personality Disorder”, and states that the “highest level of adaptive func[
t]ions [in the] past year . . . . [has been] poor . . . .[and he is u]
nable to maintain employment.” Supp. R. at 65. However, the report also
noted that the veteran was “in general pleasant in conversation” and “was
oriented X3”. Supp. R. at 65. He was discharged from the program on
December 13, 1982, for failure to attend. Supp. R. at 68.
In March 1983, the veteran was seen by a VA vocational rehabilitation
counselor, who found that “Mr. Masors has had significant vocational
maladjustment in his life” and “[h]is noncompliance with recommended
treatment and inability to maintain interest in most anything indicates
very poor prognosis for vocational changes in the future.” Supp. R. at 73
. Upon subsequent testing, the counselor concluded that “[h]e is a bright,
intellectually capable individual who for personality reasons is unable to
adapt to the vocational sphere. He is not seen as a candidate for further
vocational rehabilitation services at this time due to the severity of his
psychological problems.” Supp. R. at 74. In 1983 a private psychiatrist
at the Long Beach Mental Health Center examined the veteran and concluded
that “although patient has aspects of many of the personality disorders,
the ones that stand out are: . . . . antisocial personality disorder
. . . . [and] schizotypical personality disorder”, and that “the
probabilities are great that he will continue to have difficulty in
maintaining regular employment.” Supp. R. at 92.
In June 1983 the Social Security Administration (SSA) found the
veteran to be unemployable by reason of his psychiatric disability and
entitled to Social Security disability insurance (SSDI). Supp. R. 95-100.
According to the SSA decision, a psychiatrist who had examined the veteran
for purposes of Social Security benefits had found him to be “permanently
unemployable”. Supp. R. at 94. The SSA administrative law judge (A.L.J.)
made specific findings of fact that the veteran could not relate
appropriately to others in even minimal contact, was unable to perform any
of the jobs he had held in the past, had no skills that were transferable
to other work, and could not be expected to make a vocational adjustment
to jobs which exist in substantial numbers in the national economy. Supp.
R. at 99-100.
The veteran first filed for VA benefits for his psychiatric disorder
in November 1982, claiming, among other things, that he was “unable to
hold [a] job over [the] long term–lost 13 recently”. R. at 31. The VA
Regional Office (RO) apparently denied the claim. The veteran appealed to
the BVA, and in a decision dated May 13, 1985, the BVA denied both ”
service connection for a psychiatric disorder” and “a permanent and total
disability rating for pension purposes.” R. at 34.
With regard to service connection, the BVA stated that under VA ”
regulations a personality disorder, which is in the nature of a
developmental disorder, is not a disease for compensation purposes.” The
Board then found that “the emotional problems experienced by the veteran
during service were characteristic of a personality disorder, and it is
clear from the post-service medical records that the veteran’s psychiatric
disorder is a personality disorder.” R. at 37.
On the pension claim, the Board stated that “in view of the veteran’s
relatively young age and college education, we are of the opinion that
there are several types of jobs which he is capable of performing and
which do not involve prolonged contact with other people.” R. at 38. The
Board considered the fact that the SSA had found the veteran totally
disabled, but stated that the SSA and the VA “use different criteria in
determining disability”.
The veteran sought to reopen his claim in February 1989. He stated
that he was submitting new evidence consisting of Social Security records
demonstrating that he had been totally and continuously disabled since
1981. However, those documents are not found in the record on appeal. On
his VA medical examination form, the veteran indicated that he had “seen [
a] psychologist for several years in individual therapy” for ”
schizophreniform disease”, and gave the psychologist’s name (John Milden)
and address. R. at 41.
The veteran was given a VA examination for disability evaluation in
June and July 1989. On the psychiatric evaluation, the examiner diagnosed ”
Dysthymic disorder” and “mixed personality disorder with passive
aggressive, antisocial, schizoid and borderline traits.” R. at 47. The
examiner concluded that “[t]he veteran continues to suffer from his
disorders and appears to be quite disturbed. Nevertheless, he is bright,
insightful and has potential”. R. at 47.
In an August 30, 1989 rating decision, the RO denied the veteran’s
claims, stating:
Cited VA [examination report] shows the veteran has a dysthmic
disorder with mixed personality disorder but does not provide new &
material evidence to warrant a change in prior denial of SC for
nervous condition. His disability is not so severe as to preclude
gainful employment . . . .
R. at 51.
The veteran appealed to the BVA, which denied his claims for service
connection and for pension based on unemployability. Bruce N. Masors,
BVA 90-07909 (hereinafter Masors) (Apr. 3, 1990). A timely appeal to
this Court followed under 38 U.S.C. ùù 7252(a) and 7266 (formerly ùù
4052 and 4066).
II. Analysis
We note at the outset that the BVA applied different standards of
review as to the two issues in this case. The Board denied the veteran’s
claim for service connection of his psychiatric disorder because “the
evidence received since the prior Board determination is insufficient to
establish the presence of an acquired psychiatric disability attributable
to military service.” Masors, at 5 (emphasis added). In denying the
claim for unemployability for pension benefits, the Board stated that ”
when considering the entire record, the Board is not persuaded that the
veteran is precluded from engaging in all forms of substantially gainful
employment.” Masors, at 6 (emphasis added). It is clear that the BVA
decision as to service connection was based on review only of the new
evidence, consisting of the July 1989 VA examination, whereas the decision
as to pension eligibility is based upon the entire record.
A. Service Connection
“[W]hen a claim is disallowed by the Board, the claim [generally] may
not thereafter be reopened and allowed and a claim based upon the same
factual basis may not be considered.” 38 U.S.C. ù 7104(b) (formerly ù
4004). The exception to this rule is 38 U.S.C. ù 5108 (formerly ù 3008),
which states:
If new and material evidence is presented or secured with
respect to a claim which has been disallowed, the Secretary
shall reopen the claim and review the former disposition of the
claim.
When a claim is reopened under section 5108, the BVA must then ”
evaluate the merits of the veteran’s claim in light of all the
evidence, both new and old.” Manio v. Derwinski, 1 Vet.App.
140, 145 (1991). Therefore, when a veteran seeks to reopen his
or her claim under section 5108, the BVA must conduct a two-
step analysis. First, the Board must determine whether the
evidence submitted since the previous BVA decision is “new and
material”. Second, if the evidence is found to be new and
material, the claim is to be reopened and the Board must then ”
assess the new and material evidence in the context of the
other evidence of record and make new factual determinations.”
Godwin v. Derwinski, 1 Vet.App. 419, 425 (1991); Jones v.
Derwinski, 1 Vet.App. 210, 215 (1991).
The BVA, in its April 3, 1990, decision, failed to conduct this two-
step analysis. Instead, in deciding the service-connection issue, the
Board determined that the new evidence did not “demonstrate that the
veteran acquired a psychiatric disorder which originated or became worse
in service.” Masors at 7. It is not clear whether the Board made any
determination as to whether the new evidence was “material” for purposes
of reopening the claim. In its discussion of the new evidence in relation
to the claim for service connection, the Board stated:
Additional evidence, which consists of a VA psychiatric examination,
shows that the veteran continues to suffer from a personality
disorder, and also has a dysthymic disorder. But the evidence does
not show that the dysthymic disorder began in service. In sum, we
find that the evidence received since the prior Board determination
is insufficient to establish the presence of an acquired psychiatric
disability attributable to military service.
Masors at 7. This language might suggest a finding that the new evidence
is not material to the issue of service connection. However, it could
also suggest that the Board proceeded to decide the merits of the issue of
service connection without making any finding as to whether the new
evidence was material and would justify reopening.
The Board is required by 38 U.S.C. ù 7104(d)(1) to provide “a
written statement of [its] findings and conclusions, and the reasons or
bases for those findings and conclusions”. Since the Board’s decision did
not contain any written conclusion that the evidence was not material to
the claim for service connection, we are unable to conclude that the
ambiguous language in the Board’s discussion represented such a finding.
Rather, the absence of any
stated conclusions as to whether the evidence is new and material compels
us to find that the Board failed to conduct the requisite analysis as to
whether the evidence was new and material. Thus, the Board committed
error under the first prong of the two-step Manio reopening analysis by
failing to consider whether there was new and material evidence to reopen
the claim for service connection. We further note that, if the new
evidence was “material” as a matter of law, there would be error under
the second prong of the Manio analysis in the Board’s failure to decide
the issue of service connection based upon all the evidence, both old and
new. See Smith v. Derwinski, 1 Vet.App. 235, 237 (1991); Jones, 1 Vet.
App. at 214-15; Manio, 1 Vet.App. at 145.
Although we find that the BVA erred in failing to apply the first
prong of the two-step Manio test prior to reopening the veteran’s
previously disallowed claim for service connection under section 5108,
remand for application of the proper test is not necessary. Whether or
not evidence submitted to reopen a previously disallowed claim is “new and
material” is a question of law which we review de novo under 38 U.S.C. ù
7261(a)(1) (formerly ù 4061). See Jones, 1 Vet.App. at 213; Smith v.
Derwinski, 1 Vet.App. 178, 180 (1991); Colvin v. Derwinski, 1 Vet.App.
171, 174 (1991). As explained below, we hold that the veteran in the
present case has not submitted any new evidence material to the issue of
service connection for his psychiatric disorder and, therefore, there is
no basis for reopening his compensation claim under section 5108.
New evidence is evidence that is not “merely cumulative of other
evidence of record”. Colvin, 1 Vet.App. at 174; see also Smith, 1 Vet.
App. at 237; 38 C.F.R. ù 3.156(c). Evidence is material if there is “a
reasonable possibility that the new evidence, when viewed in the context
of all the evidence, both new and old, would change the outcome.” Godwin,
1 Vet.App. at 424; Colvin, 1 Vet.App at 174; see also Smith, 1 Vet.App. at
237.
In the present case, the only new evidence before the Board in its
1990 decision apparently was the reports of the VA compensation and
pension examination from June and July 1989. R. at 46-47. There is
nothing in these documents suggesting a link between the appellant’s
present psychiatric condition and his in-service personality disorders.
In his submissions to this Court, the appellant does not assert that these
VA medical reports
establish such a link. It is apparent that no evidence which is both new
and material regarding the issue of service connection of the appellant’s
psychiatric condition was submitted to justify reopening of the
compensation claim. Therefore, we hold that any error that may have
occurred during the BVA’s review of the previously disallowed claim that
it purported to reopen is harmless error as to the claim of service
connection. See 38 U.S.C. ù 7261(b); Godwin, 1 Vet.App. at 425;
Thompson v. Derwinski, 1 Vet.App. 251, 253-54 (1991).
However, our finding that the BVA’s failure to apply the two-part
test for reopened claims was harmless error is subject to this caveat. As
we conclude in part B.1., below, the BVA here had a duty to help the
veteran obtain certain records relevant to his claim. If these records
contain evidence relating to the issue of service connection, then the BVA
will be required to apply the two-part test, and provide a statement of
its conclusions, with reasons and bases therefor, as to the compensation
claim.
B. Pension
With regard to the issue of unemployability for pension purposes, the
Board noted that it was “considering the entire record”. Masors at 6.
As we held in Bagby v. Derwinski, 1 Vet.App. 225, 226 (1991), in such a
case, where the BVA “‘review[ed] the evidence of record in its entirety'”,
the Court “therefore review[s] appellant’s claim based upon the entire
record.” In the present case, we find that the BVA failed to discharge
its duty to assist the veteran as to his pension claim by seeking to
obtain records which the record indicates are pertinent, and also failed
to provide an adequate statement of reasons or bases for its evaluation of
relevant evidence in the record.
1.
When a veteran has satisfied his or her initial burden of submitting
a well-grounded claim, VA has an affirmative duty to “assist such a
claimant in developing the facts
pertinent to the claim.” 38 U.S.C. ù 5107(a) (formerly ù 3007). “A
well-grounded claim is a plausible claim, one which is meritorious on its
own or capable of substantiation. Such a claim need not be conclusive but
only possible to satisfy the initial burden of [ù 5107(a)].” Moore v.
Derwinski, 1 Vet.App. 401, 405 (1991) (quoting Murphy v. Derwinski, 1 Vet.
App. 78, 81 (1990)). In the present case, the veteran submitted a well-
grounded claim of unemployability for pension purposes. In his February
1989 statement in support of his claim, the veteran stated that, since
1983, he had been continuously rated as permanently and totally disabled
by the SSA retroactive to 1981. R. at 40. Additionally, the veteran
previously had submitted private medical records in which the examining
psychiatrist concluded that “[t]he probabilities are great that he will
continue to have difficulty in maintaining regular employment” (Supp. R.
at 92), and the report of a VA rehabilitation counselor who concluded that
there was a “very poor prognosis for vocational change in the future.”
Supp. R. at 73. Consequently, VA and the BVA were under a duty to assist
the veteran in developing the facts pertinent to his unemployability claim
for pension purposes.
The duty to assist in this case required the BVA to seek to obtain
private medical records of the veteran’s treatment for his psychiatric
disorder and records of the SSA regarding the veteran’s continuing rating
of unemployability for Social Security purposes. On his July 1989
Report of Medical Examination for Disability Evaluation, the veteran
indicated that he had been treated from 1982 to 1986 for his ”
schizophreniform disorder” by a private psychotherapist, John Milden, who
was apparently trained as a social worker and had a Master’s degree in
social work. R. at 41. In his examination report, the examining VA
physician noted that the veteran had received private treatment from Mr.
Milden. R. at 46. The records of this private treatment are not found in
the record on appeal, nor is there any evidence that the BVA ever
attempted to obtain them. In his opposition to the appellant’s motion for
summary disposition, and his own motion for summary affirmance and stay of
proceedings, the Secretary asserts that the private psychological reports
from Mr. Milden “were directly before the BVA when it rendered [its 1985]
decision.” Motion of Appellee at 3. However, the documents in the record
on appeal which the Secretary cites to support this proposition are not
treatment records. The cited documents consist of the record of the 1983
SSA decision rating the veteran unemployable,
which made reference to an August 1982 report from Mr. Milden (Supp. R.
at 98), and a form, dated September 24, 1984, and signed by Mr. Milden,
certifying that the veteran was eligible to participate in a California
housing assistance program for disabled persons because he suffered from ”
schizophreniform disorder”. Supp. R. at 107-108. These documents do not
demonstrate, as the Secretary asserts, that reports of the veteran’s
treatment by Mr. Milden were before the BVA in 1985. Furthermore, there
is no evidence that any such records were sought or obtained by VA prior
to the BVA’s most recent decision.
The observations and opinions of a treating psychotherapist, based
upon several years of treatment, are certainly pertinent to the veteran’s
claim of unemployability due to his psychiatric disorder. The BVA’s duty
to assist includes the duty to seek to obtain private medical records.
See Littke v. Derwinski, 1 Vet.App. 90, 92 (1990); Murphy, 1 Vet.App. at
82. In the present case, therefore, the BVA should have either requested
the veteran to submit the private records or obtained the veteran’s
written release and then requested the records directly from the treating
psychotherapist. See Murphy, 1 Vet.App. at 82.
The Board also breached its duty to assist by failing to make efforts
to obtain records from the SSA regarding the veteran’s unemployability
rating. The record on appeal reveals that in both its 1985 and 1990
decisions, the BVA had before it the record of the 1983 SSA decision
rating the veteran unemployable for SSDI purposes. S.R. at 95. However,
the BVA apparently did not attempt to obtain Social Security records
relating to the veteran’s condition since that time.
In his February 1989 statement in support of his reopened claim, the
veteran stated that he was enclosing new evidence from the SSA showing
that his total disability had continued from 1981 to the present. Those
documents are not found in the record. Any records that the SSA has
pertaining to its continuing rating of his unemployability would
certainly be pertinent to his claim of unemployability for VA pension
purposes. See Collier v. Derwinski, 1 Vet.App. 413, 417 (1991); Ferraro
v. Derwinski, 1 Vet.App. 326, 332 (1991). In its April 1990 decision, the
BVA stated that the SSA rating of unemployability is not controlling
because “each Federal agency must make a determination of the effect of
disabilities in any individual case based on its own regulatory criteria
.” Masors at 6; cf. 38 U.S.C. ù 7104(c) (“The Board shall be bound in
its decisions by the regulations of [VA]”); 38 C.F.R. ù 3.101 (1991) (”
All decisions will conform to the statutes and regulations of the
Department of Veterans Affairs”); Collier, 1 Vet.App. at 332 (noting that
there are “significant differences” in the definition of disability under
the statutes and regulations governing SSA adjudications, on the one hand,
and those governing VA adjudications, on the other). Although the SSA
decision is certainly not controlling, that agency’s determinations
regarding the veteran’s unemployability, and the reasons for those
determinations, are certainly highly pertinent to the present claim. See
Collier; Ferraro.
It is clear that the SSA records may contain evidence which was not
previously before the BVA and which is pertinent to the veteran’s claim of
unemployability. For example, the 1983 SSA decision makes reference to a
report from Mr. Milden, the veteran’s treating psychotherapist, whereas no
reports from Mr. Milden were apparently before the BVA in connection with
either its 1985 or 1990 decision. Hence, the BVA’s duty to assist the
claimant required it to request records relating to the SSA
unemployability rating that were not previously before the BVA. Under 38
U.S.C. ù 5106 (formerly ù 3006), the SSA, as is any other federal
department or agency, is directed to “provide such information to the
Secretary as the Secretary may request for purposes of determining
eligibility for or amount of benefits, or verifying other information with
respect thereto.” Moreover, 38 U.S.C. ù 5107(a) specifically states that
VA’s duty to assist includes requesting information from other federal
departments or agencies as described in section 5106. See Murphy, 1 Vet.
App. at 82; Littke, 1 Vet.App. at 91.
The record on appeal indicates that the only SSA record before the
BVA in April 1990 was a copy of the 1983 decision rating the veteran
unemployable for SSDI purposes. On remand, therefore, the BVA should seek
to obtain any SSA records relating to the veteran’s unemployability
subsequent to the 1983 SSA decision making him eligible for SSDI.
2.
Upon remand the Board will be required to assist the veteran in
obtaining both private and governmental records pertinent to his pension
claim. As a consequence of the new evidence, the Board will then be
required to readjudicate the veteran’s unemployability and provide
reasons and bases for its conclusions. See 38 U.S.C. ù 7104(d)(1);
Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991) (“A remand is meant to
entail a critical examination of the justification of the decision” and is
not “merely for the purposes of rewriting the opinion so it will
superficially comply with the ‘reasons or bases’ requirement of 38 U.S.C.
ù 7104(d)(1)”.); Sammarco v. Derwinski, 1 Vet.App. 111, 112-14 (1991);
Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990). The statement of
reasons or bases must be sufficient to “enable a claimant to understand,
not only the Board’s decision but also the precise basis for that
decision” as well as to facilitate review by this Court. Gilbert, 1 Vet.
App. at 56. In denying claims of unemployability, the BVA must provide
reasons or bases for a conclusion that the veteran is not precluded from
pursuing substantially gainful employment. See Collier, 1 Vet.App. at
416-17; Hyder v. Derwinski, 1 Vet.App. 221, 224 (1991); Hatlestad v.
Derwinski, 1 Vet.App. 164, 169-70 (1991). The conclusory statement that ”
the Board is not persuaded that the veteran is precluded from engaging in
all forms of substantially gainful employment consistent with his
relatively young age, college education and work experience” is not
sufficient for that purpose. See Hyder, 1 Vet.App. at 224.
In the present case, the veteran submitted evidence that he has been
found unemployable by the SSA in 1983. Although the Board is required to
make its own determination as to unemployability, “at a minimum . . . .
the decision of the A.L.J. in this case is evidence which cannot be
ignored and to the extent its conclusions are not accepted, reasons or
bases should be given therefor.” Collier, 1 Vet.App. at 417. The Board
has failed to give adequate explanatory reasons or bases for rejecting the
factual findings of the A.L.J., which were evidence of record in this case
. Specifically, the BVA failed to provide reasons or bases for its
implicit rejection of the following findings made by the A.L.J.:
6. The claimant is unable to perform his past relevant work as a
casual laborer, electronics technician, avionics technician,
sales clerk, factory laborer, and television repairman . . . .
9. The claimant does not have any acquired work skills which are
transferable to the skilled or semi-skilled work functions of
other work . . . .
10. Considering the types of work which the claimant is still
functionally capable of performing in combination with his age,
education and work experience, he cannot be expected to make a
vocational adjustment to work which exists in significant
numbers in the national economy.
Supp. R. at 99-100. The BVA, in its 1990 decision, concluded that “the
veteran’s psychiatric disability would limit his employment opportunities,
but would not prevent all types of substantially gainful employment.”
Masors at 6. In light of the evidence of record that the veteran was,
according to the 1983 SSA decision (Supp. R. 99), “unable to perform his
past relevant work”, did not have skills transferable to other work, and
could not make a vocational adjustment to jobs existing in significant
numbers in the national economy, the BVA has not provided adequate reasons
or bases for concluding that the veteran was capable of pursuing
substantially gainful employment. See Collier, 1 Vet.App. at 416-17 . In
this connection, the Court notes that SSDI ratings are subject to periodic
reevaluation based on periodic reexaminations. See 42 U.S.C. ù 421(i)(1
).
In order to provide an adequate statement of reasons or bases, the
BVA will have to provide reasons or bases either for rejecting the A.L.J.
‘s findings or for concluding that those findings are not inconsistent
with the BVA’s conclusion that the veteran was not precluded from
pursuing substantially gainful employment. See Gleicher v. Derwinski, __
Vet.App. __, __, slip op. at 3-4 (U.S. Vet. App. No. 90-147, Dec. 17, 1991).
III. Conclusion
On the basis of the foregoing analysis finding multiple errors in the
BVA’s April 1990 decision, the Court retains jurisdiction and the BVA
decision will be affirmed in part and the record will be remanded in part.
The BVA erroneously failed to apply the two-part Manio test in
determining whether to reopen the veteran’s claim for service connection
of his psychiatric disorder. However, because we conclude as a matter of
law that the veteran did not submit new and material evidence of service
connection sufficient to reopen that claim under 38 U.S.C. ù 5108, this
was harmless error and the BVA decision will be affirmed on that issue.
If, however, new evidence relating to this claim is obtained by the Board
in the remand on the veteran’s pension claim, the Board will be required
to apply the two-part test with respect to the potential for
readjudication of the service-connection claim as well.
The BVA considered the veteran’s claim for non-service-connected
pension for unemployability on the basis of the entire record, and our
review is on the same basis. The BVA breached its duty to assist the
veteran by obtaining relevant private and governmental records.
Furthermore, it failed to provide an adequate statement of reasons or
bases for its conclusions regarding the veteran’s unemployability.
Accordingly, this matter will be remanded to the BVA, the Court retaining
jurisdiction, for fulfillment of these statutory duties and for a prompt,
full readjudication of the pension claim. See Fletcher, 1 Vet.App. at 397
. On remand, the Board shall assist the veteran in obtaining records of
his treatment from John Milden at the Long Beach Mental Health Center, and
records from the SSA relating to the veteran’s rating of unemployability
for SSDI purposes. Furthermore, the Board shall provide in its decision
an adequate statement of reasons or bases for its conclusions, including ”
an analysis of the credibility or probative value of the evidence
submitted by . . . . the veteran in support of his claim, [or] a
statement of the reasons or bases for the implicit rejection of this
evidence by the Board.” Gilbert, 1 Vet.App. at 59. Specifically, if the
Board continues its denial of the veteran’s claim, the Board must provide
reasons or bases for its implicit rejection of the findings of the SSA
administrative law judge with respect to the veteran’s unemployability.
The Secretary shall file with the Clerk and
serve upon the appellant a copy of the Board’s rating decision on remand.
Within 14 days after such filing, the appellant shall notify the Clerk
whether he desires to seek further review by the Court.
AFFIRMED IN PART AND REMANDED IN PART.