UNITED STATES COURT OF VETERANS APPEALS

No. 90-222

[John A. Murincsak, Appellant,]{.smallcaps}

[v.]{.smallcaps}

[Edward J. Derwinski,]{.smallcaps}

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

On Appeal from the Board of Veterans\' Appeals

(Argued October 21, 1991Decided April 24, 1992 )

*William G. Smith* for appellant.

*Stephen A. Bergquist*, with whom *Robert E. Coy*, Acting General
Counsel, *Barry M. Tapp*, Assistant General Counsel, and *Pamela L.
Wood*, Deputy Assistant General Counsel, were on the brief, for
appellee.

Before KRAMER, MANKIN, and STEINBERG, *Associate Judges*.

MANKIN, *Associate Judge*: John A. Murincsak appeals from a December 5,
1989, Board of Veterans\' Appeals (BVA or Board) decision, which denied
entitlement to a total disability rating based on individual
unemployability due to service-connected disability. Because the BVA
decision contains errors of law, we vacate the BVA decision and remand
the case to the BVA with specific instructions to proceed in a manner
consistent with this opinion.

**I. Background**

The veteran, John A. Murincsak, served on active military duty in the
United States Air Force from January 14, 1964, to January 8, 1968. R.
at 1. During service, appellant was treated for anxiety and nervousness
on several occasions. Appellant filed his original claim for service
connection for schizophrenia in February 1971. After intensive
examination, the Veterans\' Administration (now Department of Veterans
Affairs) (VA) Regional Office (VARO) in Baltimore, Maryland granted
appellant a 100% service-connected disability rating for schizophrenic
reaction, undifferentiated type, on January 11, 1972. R. at 2-3.

On June 2, 1972, a VA medical examiner reported a diagnosis of
\"schizophrenia, chronic, undifferentiated. He is actively psychotic.\"
R. at 4. The veteran was hospitalized for this condition from August 18,
1972, to October 4, 1972. R. at 5. He moved from his sister\'s home in
Maryland to California in 1975, and apparently began treatment at the VA
Medical Center (VAMC) in Long Beach, California, in 1976, in addition to
private therapy. R. at 6. He was again hospitalized from March 12, 1979,
to April 30, 1979, at the VAMC in Long Beach. R. at 7-8.

A Mental Status Examination was performed on January 17, 1980, which
revealed: \"The veteran is acutely psychotic during the interview and
his judgment is highly impair\[ed\]. He has no ability to concentrate
and is unemployable at the present time.\" R. at 9. The final diagnosis
was schizophrenia, chronic undifferentiated type. On February 6, 1981, a
Compensation and Pension Report concluded with a diagnosis of
\"Schizophrenia, chronic, undifferentiated type, competent,\" and the
statement, \"It is questionable whether this veteran can hold on to any
type of employment.\" R. at 11. Apparently based on the February
examination, on May 7, 1981, the VARO in Los Angeles, California,
reduced appellant\'s disability rating for schizophrenic reaction,
undifferentiated type, from 100% to 70% effective from August 1, 1981.
The rating board concluded: \"Veteran is not shown to be unemployable
primarily because of \[service-connected\] condition.\" R. at 12.

A rating decision of November 17, 1982, indicates that appellant was
hospitalized for his service-connected condition effective from
September 30, 1982, to November 3, 1982, and was consequently awarded a
100% disability rating from September 30, 1982, and then reduced back to
a 70% disability rating effective December 1, 1982. R. at 15. Appellant
was again hospitalized for several days in November 1985, and then
returned to the board and care home where he had been living. R. at 17.
On December 4, 1986, the diagnosis of schizophrenia, chronic,
undifferentiated type, was continued. R. at 18.

On July 14, 1987, the veteran filed a claim with the VA for an increased
rating for service-connected schizophrenia, which was then rated at 70%.
The veteran mentioned that he was unemployable and seeking weekly
treatment at the VAMC in Long Beach. R. at 19. Only the medical records
from February 18, 1987, to February 19, 1988, were reviewed by the VARO
in appellant\'s reopened claim. R. at 20-70. A rating decision of March
11, 1988, continued the 70% disability rating for service-connected
schizophrenic reaction, chronic undifferentiated type, from December 1,
1982, and denied service connection for residuals of exposure to Agent
Orange. R. at 73-74. In May 1988, the veteran was admitted to the VAMC
hospital for several days for his schizophrenic condition. R. at 75. The
VARO confirmed the previous rating decision on August 24, 1988. R. at
76.

On January 11, 1989, the veteran filed another application for increased
compensation based on unemployability, stating that the date of his last
full-time employment was in 1974, when he was fired because of
psychiatric problems from his job as a police officer. He concurrently
filed his Notice of Disagreement with the August 1988 rating decision,
as it did not consider unemployability. R. at 77-79. On January 30,
1989, the VARO in Los Angeles found that the veteran\'s
\"\[service-connected\] schizophrenia is not shown to be of such
severity as to produce unemployability.\" R. at 80.

A Compensation and Pension Examination performed on February 13, 1989,
noted that appellant was living in a board and care home and was
unemployed, in addition to the following:

> The patient is alert and oriented times three. He is somewhat
> disheveled, wearing a dirty shirt and walking with a cane. Speech is
> loud and hoarse. He complains of auditory hallucinations including
> command auditory hallucinations. Visual hallucinations, paranoid
> ideation, poor impulse control. He also complains of feelings of
> unreality as if he is another person at times. He states that he hears
> voices in Hungarian telling him to do various things. He believes that
> other people know what his thoughts are. He sees auras, halos and
> blood coming out of other people\'s heads. . . . The patient is
> somewhat disheveled. His affect is somewhat irritable and angry.
> Judgment and insight seem to be impaired.
>
> ASSESSMENT: AXIS I: Chronic undifferentiated schizophrenia.
>
> AXIS II: Deferred.
>
> AXIS III: Arthritis, hypertension.

R. at 87. On March 6, 1989, the veteran appealed the January 1989 rating
decision to the BVA. On March 10, 1989, the VARO confirmed the 70%
disability rating for service-connected schizophrenia. R. at 92. The
veteran, his brother, a friend, and his service representative
personally appeared before a member of the rating board at a hearing
held in Los Angeles on May 16, 1989. R. at 97-108. On June 6, 1989, the
hearing officer concluded: \"The symptomatology is consistent with the
currently assigned 70% evaluation. Accordingly, prior ratings are
affirmed. Consideration for individual unemployability is not
appropriate in this case as the veteran\'s sole service-connected
disability is that of his psychiatric condition.\" R. at 110. On
December 9, 1989, the Board denied entitlement to a total rating by
reason of individual unemployability due to a service-connected
psychiatric disorder. *John A. Murincsak*, BVA 89-05877 (Dec. 5, 1989).
The Court has jurisdiction of the case pursuant to 38 U.S.C § 7252(a)
(formerly § 4052(a)).

**II. Analysis**

Appellant first claims eligibility for a 100% schedular disability
rating for schizophrenia, undifferentiated type, under 38 C.F.R.
§ 4.132, Diagnostic Code (DC) 9204 (1991). Appellant also claims
entitlement to a total disability rating for compensation based on
individual unemployability under 38 C.F.R. § 4.16(c) (1991). Murincsak
also seeks reversal of the December 5, 1989, BVA decision, because he
contends that the BVA failed to comply with its statutory and regulatory
duties to assist him in development of his claim and that it failed to
apply pertinent laws and regulations in adjudicating his claim. The
Secretary of Veterans Affairs (Secretary), in his motion for remand,
conceded that the BVA had failed to present reasons or bases for its
findings and conclusions on every material issue of fact and law
presented on the record. The Court agrees with the Secretary that the
BVA failed to address the credibility and probative weight of the
hearing testimony and psychiatric examination findings, failed to
consider the unemployability issue in light of 38 C.F.R. § 4.16(c), and
did not elaborate on its application of the benefit-of-the-doubt
doctrine in the context of the facts in this case. The Court finds, for
these and additional reasons discussed in parts II.A., II.C.1., II.C.2.,
*infra,* that a remand of the case is appropriate under the
circumstances. The Court finds that the BVA decision on appeal here is
fraught with error and must be vacated.

**A. Legal Error**

Appellant argues that the BVA and the Regional Office failed to follow
several regulatory provisions in deciding his claim. The Court has
consistently held that \"the BVA is not free to ignore its own
regulations.\" *Karnas v. Derwinski*, 1 Vet.App. 308, 313 (1991). \"Once
a veteran raises a well grounded claim to which a regulation could
reasonably apply, the BVA must apply the regulation or give the reasons
\[or\] bases explaining why it is not applicable.\" *Schafrath v.
Derwinski*, 1 Vet.App. 589, 592 (1991) (quoting *Payne v. Derwinski*, 1
Vet.App. 85, 87 (1990)). *See also Peyton v. Derwinski*, 1 Vet.App. 282,
286-87 (1991).

The Court finds that appellant presented a well-grounded claim for both
a schedular total disability rating and one premised on individual
unemployability based upon his repeated contentions that he has been
unemployed since 1970 or 1974 (he asserts that he cannot remember the
exact year due to his service-connected psychosis), has been
hospitalized numerous times over the years precluding employment,
attends weekly group therapy, and lives in a board and care home because
he cannot care for himself, much less obtain substantially gainful
employment. A well-grounded claim is \"a plausible claim, one which is
meritorious on its own or capable of substantiation.\" *Murphy v.
Derwinski*, 1 Vet.App. 78, 81 (1990).

While the BVA states the applicability of 38 C.F.R. § 4.16, it makes no
mention of or reference to the specific provisions of 38 C.F.R.
§ 4.16(c), which is clearly pertinent to appellant\'s claim. Section
4.16(c) states:

> The provisions of paragraph (a) of this section are not for
> application in cases in which the only compensable service-connected
> disability is a mental disorder assigned *a 70 percent evaluation, and
> such mental disorder precludes a veteran from securing or following a
> substantially gainful occupation. In such cases, the mental disorder
> shall be assigned a 100 percent schedular evaluation under the
> appropriate diagnostic code.*

38 C.F.R. § 4.16(c) (1991) (emphasis added). The relevant portion of
section 4.16(a) referenced in section 4.16(c) is as follows:

> Total disability ratings for compensation may be assigned, where the
> schedular rating is less than total, when the disabled person is, in
> the judgment of the rating agency, unable to secure or follow a
> substantially gainful occupation as a result of service-connected
> disabilities: *Provided That*, if there is only one such disability,
> this disability shall be ratable at 60 percent or more, . . . .

38 C.F.R. § 4.16(a) (1991). The General Rating Formula for Psychotic
Disorders, including schizophrenia, differentiates between 100% and 70%
disabilities as follows:

> Active psychotic manifestations of such extent, severity, depth,
> persistence or bizarreness as to produce total social and industrial
> inadaptability\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\....
> 100
>
> With lesser symptomatology such as to produce severe impairment of
> social and industrial adaptability\...\...\... 70

38 C.F.R. § 4.132, DC 9204 (1991). Since appellant presented a
well-grounded claim, the BVA was obligated to acknowledge and consider
the applicability of the General Rating Formula and section 4.16(c).

In the BVA\'s denial of appellant\'s claim for a total disability rating
based on individual unemployability, it continued the 70% disability
rating that had been continued by the rating decision of June 6, 1989.
The VARO hearing officer concluded his decision by stating that \"the
symptomatology is consistent with the currently assigned 70% evaluation.
Accordingly, prior ratings are affirmed. Consideration for individual
unemployability is not appropriate in this case as the veteran\'s sole
service-connected disability is that of his psychiatric condition.\" R.
at 110. This conclusion contains legal error in its misstatement of the
law. It is manifest from this erroneous conclusion that the hearing
officer ignored and failed to apply 38 C.F.R. § 4.16(c). This
regulation, which has no predecessor, became effective March 1, 1989,
after the reopening of appellant\'s claim, but before the June 6, 1989,
hearing officer\'s decision, and before the BVA decision on appeal.
Where, as here, there was evidence of record that appellant has been
continually unemployed since 1970 or 1974, the BVA clearly erred by
failing to consider this provision which, when applied, dictates a 100%
schedular rating for a claimant whose 70% service-connected
schizophrenia prevents him from engaging in substantially gainful
employment. *See Karnas*, 1 Vet.App. at 311-13.

In response to a question posed at oral argument, counsel for the
Secretary conceded that there is no evidence in the record to show that
the veteran is actually employable. \"Where a VA regulation is made
potentially applicable through the assertions and issues raised in the
record, the Board\'s refusal to acknowledge and consider that regulation
is \`arbitrary, capricious, an abuse of discretion,\' and \`not in
accordance with the law,\' and must be set aside as such.\" *Schafrath*,
1 Vet.App. at 593; *see* 38 U.S.C. § 7061(a)(3) (formerly § 4061(a)(3));
*Payne*, 1 Vet.App. at 87. Under these circumstances, the case must be
remanded for the BVA to evaluate appellant\'s claim of individual
unemployability under section 4.16(c) and for it to provide a clear
statement of its decision on that claim, with articulation of the
reasons or bases therefor. *See Schafrath*, 1 Vet.App. at 593.

**B. Administrative Error**

The December 5, 1989, BVA decision confirmed the June 1989 rating
decision, which affirmed all prior rating decisions based upon the 70%
disability rating, which had been in effect since a 1981 rating
reduction from a 100% disability rating. The May 7, 1981, rating
decision is a final and binding agency decision not \"subject to
revision on the same factual basis except by duly constituted appellate
authorities.\" 56 Fed. Reg. 65,846 (1991) (to be codified as amended at
38 C.F.R. § 3.104(a)) (effective Jan. 21, 1992). The exception to
finality is found in section 3.105 which states that, \"Previous
determinations which are final and binding, including decisions of
service connection, \[and\] degree of disability, . . . , will be
accepted as correct in the absence of clear and unmistakable error.\" 56
Fed. Reg. 65,846 (1991) (to be codified as amended at 38 C.F.R.
§ 3.105(a)) (effective Jan. 21, 1992).

The issue of clear and unmistakable error was raised by appellant\'s
contention that the VARO committed error in 1981 when it unlawfully
reduced appellant\'s disability rating for service-connected
schizophrenia from 100% to 70% effective August 1, 1981. Br. of
Appellant at 23. Based upon one medical examination and apparently
without applying VA regulations, 38 C.F.R. §§ 3.343 and 3.344, the VARO
reduced appellant\'s 100% disability rating, which had been in existence
since 1971, to 70%. These two regulations were in existence at the time
of this rating decision; accordingly, the VARO was required to apply
them accurately to the facts of the veteran\'s claim.

Section 3.343(a) addresses the continuance and reduction in total
disability ratings and states in relevant part:

> \(a\) *General*. Total disability ratings when warranted by the
> severity of the condition . . . will not be reduced, in the absence of
> clear error, without examination showing *material improvement* in
> physical or mental condition. Examination reports showing material
> improvement must be *evaluated in conjunction with all the facts of
> record*, and consideration must be given particularly to whether the
> veteran attained improvement under the ordinary conditions of life,
> i.e., while working or actively seeking work or whether the symptoms
> have been brought under control by prolonged rest . . . .

38 C.F.R. § 3.343(a) (1991) (emphasis added). In reducing appellant\'s
total disability rating, the VA failed to document, through an
examination as required by section 3.343(a), that the appellant had
materially improved, based on all the facts of record and under ordinary
conditions of life, from the date of the last examination. *See Karnas*,
1 Vet.App. at 310-11.

A comparison of the examination report of February 6, 1981, which is the
basis of the first reduction, with the immediately previous examination
report of January 17, 1980, which was the basis for continuing
appellant\'s 100% disability rating, shows no indication of any material
improvement. The final diagnosis at the end of both of these reports is
identical: \"schizophrenia, chronic, undifferentiated type, competent\"
for VA purposes. These two examination reports do not demonstrate
material improvement in either appellant\'s \"social and industrial
inadaptability\" within the meaning of 38 C.F.R. § 4.132, DC 9204, or
\"improvement under the ordinary conditions of life\" within the
framework of 38 C.F.R. § 3.343(a). R. at 9-11; *see Karnas*, 1 Vet.App.
at 310-11.

Section 3.344 addresses the stabilization of disability evaluations.
Paragraph (a) of that section states in relevant part:

> Ratings on account of diseases subject to temporary or episodic
> improvement, e.g., manic depressive or other psychotic reaction, . . .
> will *not be reduced on any one examination, except* in those
> instances *where all the evidence of record clearly warrants* the
> conclusion *that sustained improvement* has been demonstrated.

38 C.F.R. § 3.344(a) (1991) (emphasis added). Section 3.344(c), clearly
applicable to appellant\'s claim, was also ignored by the 1981 rating
decision. Section 3.344(c) states in pertinent part:

> \(c\) *Disabilities which are likely to improve.* The provisions of
> paragraphs (a) and (b) of this section apply to ratings which have
> continued for long periods at the same level (5 years or more). They
> do not apply to disabilities which have not become stabilized and are
> likely to improve.

38 C.F.R. § 3.344(c) (1991). Prior to the 1981 unlawful reduction,
appellant was awarded a 100% disability rating for service-connected
schizophrenia effective February 19, 1971. R. at 2-3. Appellant appears
to qualify under this five-year rule, as his diagnosis of schizophrenic
reaction, undifferentiated type, has stabilized; and the record
indicates that appellant\'s condition is not likely to improve. The
record is replete with medical evaluations and summaries recommending
continuous treatment and medication. R. at 4-11. More importantly,
neither the February 6, 1981, evaluation nor the May 7, 1981, rating
decision discussed evidence of improvement in appellant\'s condition as
required by section 3.44. *See Lehman v. Derwinski*, 1 Vet.App. 339,
342-43 (1991).

The 1981 rating decision indicates \"administrative failure to apply the
correct statutory and regulatory provisions to the correct and relevant
facts.\" *Oppenheimer v. Derwinski*, 1 Vet. App. 370, 372 (1991). *See
Thompson v. Derwinski*, 1 Vet. App. 251, 253 (1991) (discussing 38
C.F.R. § 3.105 (1990)). This Court has consistently held that such a
reduction made without observance of the law is void *ab initio.
Schafrath*, 1 Vet.App. at 596; *Heerdt v. Derwinski*, 1 Vet.App. 551
(1991); *Lehman*, 1 Vet.App. at 343-44. The 1989 BVA decision, now on
appeal, failed to address such administrative error and apparently
continued the unlawful reduction. However, the issue of the Court\'s
jurisdiction to review administrative error committed by the VARO prior
to the BVA decision on appeal (in this case, failing to apply sections
3.343 and 3.344 before reducing appellant\'s disability rating) is
presently before the Court in the consolidated cases of *Russell v.
Derwinski*, U.S. Vet. App. No. 90-396, and *Collins v. Derwinski*, U.S.
Vet. App. No. 90-416 pending en banc review. In light of the improper
application of the statutory standards to appellant\'s claim, on remand
the Board may further wish to take into account 38 C.F.R. §§ 3.104,
3.105 (finality and revision of decisions based upon clear and
unmistakable error), and §§ 19.185(a), 19.187(a) (1991) (reconsideration
upon obvious error of fact or law) in accordance with this Court\'s
resolution of *Russell/Collins*.

**C. Duty to Assist**

**1. Social Security Records**

In his brief, appellant contends that, since the Social Security
Administration (SSA) has deemed him unemployable and eligible for
benefits due to his mental condition, the VA should also grant him a
total disability rating based on the SSA\'s findings. Br. of Appellant
at 15. Appellant also argues, that under 38 C.F.R. § 3.201(a), the VA is
deemed to have received SSA records as of the date of the receipt of
such records by the SSA. Br. of Appellant at 14.

The pertinent portion of section 3.201(a) in dispute reads as follows:

> \(a\) Evidence received in the Social Security Administration in
> support of a claim filed on or after January 1, 1957, for benefits
> under Title II of the Social Security Act will be considered to have
> been received in the Department of Veterans Affairs as of the date of
> receipt in the Social Security Administration.

38 C.F.R. § 3.201(a) (1991). At first blush, it appears that this first
sentence of subsection (a) literally means that the VA is charged with
constructive notice of all evidence received by the SSA that was filed
in conjunction with Title II benefits. This interpretation, which
appellant urges the Court to accept, would take the sentence out of the
context of the regulation in its entirety. Title II of the Social
Security Act, 42 U.S.C. § 402, et seq., relates to old age, survivor and
disability benefits, and the remainder of paragraph (a) and paragraph
(b) of this regulation refers to a claim for dependency and indemnity
compensation (DIC) for service-connected deaths. *See* 38 C.F.R.
§ 3.201(a), (b). The enabling statute for this regulation, 38 U.S.C.
§ 5105 (formerly § 3005), refers to joint applications for social
security claims under 42 U.S.C. § 402 et seq., and claims under chapter
13 of title 38, which deals with only DIC benefits. The Court agrees
with the Secretary that section 3.201(a) \"applies only to claims for VA
dependency and indemnity compensation.\" Br. of Appellee at 17. This
regulation has no application to the merits of this case.

While the argument that the VA had constructive notice of SSA records
under section 3.201(a) is without merit, there is evidence in the record
that the VA had actual notice of such records and failed in its duty to
assist the veteran in developing his claim by acquiring those records
under 38 U.S.C. §§ 5106 and 5107(a) (formerly §§ 3006 and 3007(a)). A
Problem Oriented Initial Assessment and Plans Evaluation, dated May 12,
1981, disclosed that the veteran was receiving social security
disability benefits. R. at 14. The veteran submitted to the VA a copy of
a letter that he sent to Senator Alan Cranston questioning the VA\'s
denial of a 100% disability compensation rating when the SSA had awarded
him 100% disability benefits based on his unemployability. R. at 71-72.

Once a claimant has submitted a well-grounded claim, \"the Secretary
shall assist the claimant in developing facts **pertinent** to the
claim.\" 38 U.S.C. § 5107(a) (emphasis added); 38 C.F.R. § 3.103(a)
(1991); *Godwin v. Derwinski*, 1 Vet.App. 419, 425 (1991); *Moore v.
Derwinski*, 1 Vet.App. 401, 405 (1991); *Murphy*, 1 Vet.App. at 80-81.
The appellant did present \"a plausible claim, one which is meritorious
on its own or capable of substantiation.\" *Murphy*, 1 Vet.App. at 81.
Once the veteran has presented such a claim, the burden shifts to the
Secretary to assist the veteran in developing \"*all* relevant facts,
not just those for or against the claim.\" *Godwin*, 1 Vet.App. at 425;
*Murphy*, 1 Vet.App. at 82. Under 38 U.S.C. § 5107(a), the VA\'s duty to
assist specifically includes requesting information from other Federal
departments or agencies. Under 38 U.S.C. § 5106, the SSA, as must any
other Federal department or agency, \"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.\" In part II.A. of this opinion, *supra*, the
Court found that the veteran did provide a well-grounded claim; thus,
the VA was obligated to assist the veteran in developing his claim. The
VARO had actual notice that the veteran was receiving SSA disability
benefits based upon his unemployability status (at least since 1981),
and violated its duty to assist the veteran by not acquiring the SSA
decision and the supporting medical records that were pertinent to his
VA claim.

Although the SSA\'s decision regarding appellant\'s unemployability is
not controlling for VA determinations, it is certainly \"pertinent\" to
the present claim. *See Collier v. Derwinski*, 1 Vet.App. 413, 417
(1991). This evidence is relevant to the determination of appellant\'s
ability to secure and follow a substantially gainful occupation under 38
C.F.R. § 4.16(c). This Court has noted that while

> there are significant differences in the definition of disability
> under the Social Security and VA systems (*e.g.*, under Social
> Security, 42 U.S.C. § 423(d) (1988) and 20 C.F.R. § 404.1509 (1990),
> the disability need not be reasonably likely to last for the
> claimant\'s lifetime as is required for VA purposes under 38 U.S.C.
> § \[1502(a)(1)\] and 38 C.F.R. § 3.340(b)), there are also significant
> similarities (*e.g.*, both statutes include within their respective
> definitions, the terms \"substantial\[ly\]\" and \"gainful\" when
> describing the form of employment in which the claimant is unable to
> engage).

*Collier*, 1 Vet.App. at 417. *Compare generally* 38 U.S.C. §§ 1502,
1521 *and* 38 C.F.R. §§ 4.16, 3.321(b)(2), 3.340, 3.342 *with* 42 U.S.C.
§§ 416, 423 (1988 & Supp. I 1989) *and* 20 C.F.R. §§ 404.1505-1576
(1991).

In response to the Court\'s order of October 23, 1991, the parties filed
post-oral argument, supplemental briefs addressing, among other issues,
the following two questions:

> 1\) whether the Social Security Administration (SSA) is obliged to
> discontinue supplemental security income (SSI) and social security
> disability (SSDI) benefits based on a change in a recipient\'s status
> vis-a-vis employability, and
>
> 2\) whether the SSA conducts periodic examinations to determine the
> employability status of recipients of SSI and SSDI benefits.

*Murincsak v. Derwinski*, No. 90-222 (U.S. Vet. App. Oct. 23, 1991)
(order). In their supplemental briefs, both parties agreed that these
two questions should be answered in the affirmative, which demonstrates
the relevance and significance of the 1981 SSA decision as to the VA\'s
current adjudication of this claim.

Pursuant to 42 U.S.C. § 421(i)(1), where an individual has a disability
as defined for Social Security Act purposes, the case is to be reviewed
by the Secretary of Health and Human Services or the applicable state
agency at least once every three years subject to a waiver under
paragraph (2). Paragraph (1) further provides that, where a finding of
permanent disability has been made, reviews are to be made \"at such
times as the Secretary determines to be appropriate.\" Regulations have
been promulgated for continuous review of individuals receiving Social
Security disability or SSI disability benefits to determine whether the
disability is continuing or has ceased. *See* 20 C.F.R. §§ 404.1589,
404.1590(b), (c), 416.989, 416.989a, 416.990(b), (c); Supp. Br. of
Appellee at 1-3. It is also incumbent upon the SSA to withdraw
disability benefits if a recipient no longer meets entitlement criteria,
such as engaging in \"substantial gainful activity\". 20 C.F.R.
§ 404.401a; *see* 38 C.F.R. §§ 404.1590(a), 404.990(a); Supp. Br. of
Appellant at 3-5.

The Secretary of Veterans Affairs further responded to the Court\'s
order regarding the staleness of the 1981 SSA disability determination
concerning appellant by stating that

> it is uncertain from the record when SSA initially made a
> determination that Appellant was entitled to SSA disability benefits.
> The record does indicate, at page 14, that Appellant was in receipt of
> SSA benefits in May 1981, but not when it was first determined that he
> was entitled thereto or the dates of medical records filed in support
> of entitlement.

Supp. Br. of Appellee at 2. This response exemplifies the Secretary\'s
disregard of the duty to assist triggered by the VA\'s actual knowledge
of the existence of such SSA records. Had the VA fulfilled its duty to
assist the veteran in developing his claim by acquiring the SSA decision
and these records, the Secretary would have known the initial date of
entitlement to such SSA benefits and for which disability it was
awarded.

In further response to the Court\'s order of October 23, 1991, counsel
for the Secretary asserted that any medical records dated in 1981 would
be irrelevant and stale with respect to appellant\'s reopened claim,
filed with the VA in July 1987, for entitlement to an increased rating
based on individual unemployability due to service-connected
schizophrenia. Supp. Br. of Appellee at 2-3. Even if that were so, which
the above discussion rebuts, the VA\'s failure to obtain the SSA
decision and records again exemplifies its failure to comply with its
duty to assist the veteran by following its own regulations in
evaluating a veteran\'s claim. *See* 38 C.F.R. §§ 4.1, 4.2, 4.41, 4.42
(1991). Section 4.1 requires that there be \"accurate and fully
descriptive medical examinations . . . with emphasis upon the limitation
of activity imposed by the disabling condition\" and that \"each
disability be viewed in relation to its history.\" Section 4.2 requires
the \"rating specialist to interpret reports of examination in the light
of the whole recorded history, reconciling the various reports into a
consistent picture so that the current rating may accurately reflect the
elements of disability present.\" Section 4.10 requires that in cases of
functional impairment, \"evaluations are based upon lack of usefulness\"
and medical examiners must furnish, \"in addition to the etiological,
anatomical, pathological, laboratory and prognostic data required for
ordinary medical classification, full description of the effects of the
disability upon the person\'s ordinary activity.\" *See Schafrath*, 1
Vet.App. at 594. Clearly, in the fulfillment of the Secretary\'s duty to
assist, these SSA records are pertinent in accurately rating a
veteran\'s disability in light of his entire medical history, regardless
of whether \"there is ample recent evidence in the extant record of
Appellant\'s present psychiatric status.\" Supp. Br. of Appellee at 3.

As noted earlier, the record on appeal includes a letter, dated January
22, 1988, from appellant to Senator Alan Cranston requesting assistance
with his claim. R. at 71. In the Secretary\'s response to the Court\'s
October 23, 1991, order, requesting an explanation as to when and how
the letter became part of the record, there are attached copies of
letters from Senator Cranston, dated February 11, 1988, and the
Secretary\'s response to Senator Cranston, dated February 24, 1988.
These two letters and their subject matter were not made part of the
record on appeal, apparently because they were not considered to be part
of the record of proceedings before the BVA when it reviewed
appellant\'s claim. The jurisdiction of and review by this Court is
limited to \"records of proceedings before *the Secretary* and the
Board.\" 38 U.S.C. § 7252(b) (formerly § 4052(b)) (emphasis added). The
Court stresses that if justice is to be done for the veteran and the
government, there must be a complete record on appeal accurately
reflecting the sequence of events in adjudicating a veteran\'s claim.

The Secretary\'s duty to assist includes obtaining this evidence from
the SSA, and giving it appropriate consideration and weight in its
determination to award or deny appellant a total disability rating based
on unemployability. At a minimum, the decision of the administrative law
judge at the SSA \"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. *See Webster v. Derwinski*, 1
Vet.App. 155, 159 (1991); *Sammarco v. Derwinski*, 1 Vet.App. 111, 112
(1991); *Gilbert*, 1 Vet.App. at 56-57.

**2. VAMC Records**

As this Court\'s review is limited by 38 U.S.C. § 7252(b), certain
medical records from the VAMC in Long Beach, California, dated April 2,
1989, June 16, 1989, and October 6, 1989, were not included in the
record on appeal, because they were not reviewed by the BVA prior to the
decision on appeal. *See* *Rogozinski v. Derwinski*, 1 Vet.App. 19
(1990). As stated earlier, the duty to assist the veteran includes
following all VA regulations when evaluating and adjudicating a
veteran\'s claim in light of the veteran\'s entire medical history.
*See* 38 C.F.R. §§ 4.1, 4.2, 4.41, 4.42. The only way to adjudicate a
veteran\'s claim properly and fairly is to obtain all pertinent records.

The Secretary contends that the VA\'s statutory and regulatory duty to
assist the veteran in processing a claim includes obtaining VA medical
records, but only to the extent VARO or BVA personnel have been informed
of the existence and relevance of such records. Br. of Appellee at 8.
The medical records in dispute are dated between the date of the last
rating decision and the BVA decision on appeal. The Secretary also
contends that

> it would be impossible to expect BVA to decide the merits of a claim
> based upon evidence of which it is unaware. (And, it would be a
> fictional exercise for the Court to review a BVA decision in which
> \"the record of proceedings before the \[Secretary\] and the Board\"
> was somehow deemed to contain records actually not there; *see* 38
> U.S.C. § 7252(b) (formerly 4052(b))).

Br. of Appellee at 12.

The Court cannot accept the Board being \"unaware\" of certain evidence,
especially when such evidence is in possession of the VA, and the Board
is on notice as to its possible existence and relevance. When the VA is
put on notice prior to the issuance of a final decision of the possible
existence of certain records and their relevance, the BVA must seek to
obtain those records before proceeding with the appeal. The BVA cannot
claim to be \"unaware\" of certain records, and use this assertion as a
sword against mentally ill veterans. The duty to assist the veteran does
not end with the rating decision of the VARO, but continues while the
claim is pending before the BVA. There is a continuing obligation upon
the VA to assist the veteran in developing the facts of his claim
throughout the entire administrative adjudication. The VA\'s duty \"to
obtain records regarding medical history \[is\] an important part of the
Department\'s affirmative duties . . . whether or not the claimant
requests a particular record.\" *Schafrath*, 1 Vet.App. at 595.

In this case, the BVA had ample notice that the veteran had been
attending continuous weekly treatment and counseling as an outpatient at
the Long Beach VAMC for many years. For example, although the veteran
had apparently referenced ongoing treatment at the Long Beach VAMC
during a February 13, 1989, VA examination, R. at 87, and testified
about the ongoing treatment at his May 16, 1989, hearing, R. at 97, the
most recent Long Beach VAMC report in the record before the BVA is the
February 1989 report of examination, nearly ten months before the
issuance of the BVA decision on December 9, 1989. Having concluded that
the BVA had actual notice of the possible existence and relevance of the
veteran\'s ongoing treatment at the Long Beach VAMC sufficient to
trigger the duty to assist the veteran by acquiring and considering such
records before adjudicating appellant\'s claim, the Court need not reach
the issue of whether the BVA should be charged with constructive notice
of all medical records in the possession of the VA under all
circumstances.

Jurisdiction and review by this Court is over the \"record of
proceedings before the Secretary *and* the Board.\" 38 U.S.C. § 7252(b)
(emphasis added). The Court is precluded from exercising proper and
effective judicial review over Board decisions when an incomplete record
on appeal is submitted to the Court. On remand, the Board is instructed
to fulfill its duty to assist the veteran by obtaining and reviewing all
pertinent records and to provide adequate reasons or bases for its
decision. At that time, the veteran is free to submit any new evidence,
including post-BVA decision medical records.

**III. Conclusion**

The VA clearly violated its duty to assist, and, thus, the veteran\'s
claim is remanded for readjudication in light of the veteran\'s entire
medical evidence, including both the SSA records and the Long Beach VAMC
records, and for an evaluation of his claim under 38 C.F.R. § 4.16(c).
Having concluded that legal error was committed, the December 5, 1989,
BVA decision is VACATED and REMANDED for proceedings consistent with
this Court\'s opinion.

*It is so ordered.*