**UNITED STATES COURT OF VETERANS APPEALS**

No. 90-540

[Bruce N. Masors, Appellant,]{.smallcaps}

[v.]{.smallcaps}

[Edward J. Derwinski,]{.smallcaps}

[Secretary of Veterans Affairs, Appellee.]{.smallcaps}

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. §§ 7252(a) and 7266 (formerly
§§ 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. § 7104(b)
(formerly § 4004). The exception to this rule is 38 U.S.C. § 5108
(formerly § 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. § 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. § 7261(a)(1) (formerly § 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. § 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. § 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.
§ 5107(a) (formerly § 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 \[§ 5107(a)\].\" *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. § 7104(c) (\"The
Board shall be bound in its decisions by the regulations of \[VA\]\");
38 C.F.R. § 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. § 5106 (formerly § 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. § 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. § 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. § 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. § 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. § 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.