BVA9502356 DOCKET NO. 91-23 457 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Fargo, North Dakota THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim for service connection for a back disorder, to include residuals of a shell fragment wound to the back. 2. Entitlement to service connection for a psychiatric disorder, to include a generalized anxiety disorder and post-traumatic stress disorder. 3. Entitlement to service connection for a skin disorder affecting the feet. 4 Entitlement to service connection for malaria. 5. Entitlement to service connection for the residuals of exposure to Agent Orange, to include circulatory disability of the lower extremities, hearing loss, a skin disorder, and diarrhea. 6. Entitlement to service connection for the residuals of a foot injury. 7. Entitlement to a compensable evaluation for the residuals of a shrapnel wound to the right scapula. 8. Entitlement to a compensable evaluation for the residuals of a shrapnel wound to the left medial distal thigh. 9. Entitlement to an increased evaluation for the residuals of shell fragment wounds to the the right lateral thigh and knee, currently evaluated as 10 percent disabling. 10. Entitlement to an increased evaluation for the residuals of shell fragment wounds to the left hand, currently evaluated as 10 percent disabling. 11. Entitlement to an increased evaluation for the residuals of shrapnel wounds to the left mid-scapula, posterior thorax and upper back (claimed as shrapnel wound to the abdomen and near spine/liver) currently evaluated as 10 percent disabling. .REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Horrigan, Counsel INTRODUCTION The veteran served on active duty from March 1968 to January 1969. Entitlement to service connection for a low back disorder was previously denied by the the Department of Veterans Affairs (VA) Regional Office (RO) in Fargo, North Dakota by unappealed rating actions in April, September, and October 1977. This matter came to the Board of Veterans' Appeals (Board) from a June 1990 rating decision by the RO. The veteran appeared and gave testimony at a hearing at the RO. A transcript of this hearing is of record. The case was remanded by the Board in November 1991 and September 1993 for further development. It is before the Board for further appellate consideration at this time. The veteran submitted a claim for service connection for post- traumatic stress disorder in February 1990. In the rating decision of June 1990, the RO noted that the veteran's psychiatric disability had been diagnosed as a generalized anxiety disorder and denied service connection for this disability as well as for post-traumatic stress disorder. The veteran was notified of this decision and did not file a timely Notice of Disagreement in regard to the denial of service connection for a generalized anxiety disorder. He filed a claim for service connection for a generalized anxiety disorder in December 1991. In a rating action of December 1992, the RO denied the veteran's claim for service connection for this disability, holding, essentially, that the previous rating decision denying service connection for this disorder was final and no new and material evidence had been submitted. Since the veteran had not filed a claim for service connection for a generalized anxiety disorder at the time of the June 1990 rating action, it is the Boards' opinion that this rating decision was not final in regard to this issue and the veteran's claim for service connection for a generalized anxiety disorder will be considered on a de novo basis in this decision. The other issues certified for appeal will be discussed in the REMAND section of this decision. CONTENTIONS OF APPELLANT ON APPEAL It is essentially contended, by and on behalf of the veteran, that he developed a generalized anxiety disorder as a result of his combat experiences while serving on active duty in Vietnam. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that service connection for a generalized anxiety disorder is warranted. FINDINGS OF FACT 1. All relevent evidence necessary for an equitable disposition of the issue of service connection for a generalized anxiety disorder has been obtained. 2. The veteran's generalized anxiety disorder is the result of his combat experiences in Vietnam. CONCLUSIONS OF LAW A generalized anxiety disorder was incurred during wartime service. 38 U.S.C.A. §§1110, 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION As a preliminary matter, the Board finds that the appellants claim for service connection for an anxiety disorder is plausible and capable of substantiation, and thus well-grounded within the meaning of 38 U.S.C.A. § 5107(a). We are also satisfied that all relevent facts have been developed in regard to this claim and that no further assistance to the veteran is required to comply with the duty to assist him mandated by 38 U.S.C.A. § 5107(a). The Board notes initially that the record indicates that the veteran saw considerable combat during his service in Vietnam and incurred several shrapnel wound injuries in the course of his tour of duty. His service medical records show that he was noted to have a tremor in July 1968. During psychiatric examinations conducted in May 1990, and December 1991, VA psychiatrists noted the veteran's inservice tremor and related this symptom to his current complaints of tremulousness and his recently diagnosed generalized anxiety disorder. Moreover, after the evaluation of August 1992, two VA psychiatrists concluded that the veteran's currently diagnosed generalized anxiety disorder was a residual of his combat experiences. It is therefore apparent that service connection for a generalized anxiety disorder is warranted. ORDER Service connection for a generalized anxiety disorder is granted REMAND The recent record contains an Advisory Opinion from the Chairman of the Rating Board at the RO holding, essentially, that there was clear and unmistakable error in a rating decision of June 1969 and subsequent rating actions in not assigning a 10 percent evaluation for tender scars of the right thigh; a 10 percent evaluation for a tender scar of the left scapula; a 10 percent evaluation for a tender scar of the left thigh; a 10 percent evaluation for tender scars of the right scapula; and a 10 percent evaluation for tender scars of the left hand. The combined evaluation was to be 40 percent, effective January 26, 1969. This proposal was to be referred to the Adjudication Officer and thereafter to the Director of the Compensation and Pension Service for his concurrence. The claims folder was to accompany this advisory opinion when submitted to the Compensation and Pension Service. It does not appear from the record that the Adjudication Officer and the Director of the Compensation and Pension Service have reviewed this Advisory Opinion. The veteran and his representative requests that this case be remanded to the RO for completion of this proposed action. The Board also notes that an X-ray of the lumbar spine performed during a VA physical examination of May 1990 showed a small piece of metal anterior to the sacrum in the lateral view which was either an artifact or a small piece of shrapnel. This finding was not visible on the AP view and was not shown on subsequent studies. In this regard, the Board also notes that the veteran has contended that his low back disorder results from both a fall during service and his service connected shrapnel wounds to the right hip area. While the RO has addressed the question of service incurrence of a low back disorder, it has not considered the issue of service connection on a secondary basis for this disability. In addition, while the veteran has been afforded several examinations of his numerous shell fragment wound scars, he has never been afforded a complete orthopedic evaluation of his service connected injuries. We further note in this regard that he was hospitalized at a VA facility in May 1994 and underwent right knee surgery, including an arthroscopy and removal of lose bodies, at that time. There has been no VA examination of his right knee subsequent to this surgery. Furthermore,in a recent statement, the veteran raised the issue of a compensable evaluation for the shrapnel wounds to the right hand. This issue has not been addressed by the RO. Finally, in a statement of June 3,1994, the veteran raised the issue of separate compensable evaluations for his service connected residuals of shrapnel wounds to the right knee and right lateral thigh. This issue is inextricably intertwined with entitlement to an increased evaluation for the residuals of shell fragment wounds to the the right lateral thigh and right knee, currently evaluated as 10 percent disabling. However, it has not been adjudicated by the RO. In view of the foregoing, and given the duty to assist the veteran in the development of his claim under the provisions of 38 U.S.C.A. 5107(a) (West 1991), this case is remanded to the RO for the following development. 1. The RO should complete all necessary action in regard to the recent Advisory Opinion regarding the proposed assignment of retroactive compensable evaluations for the veterans scars on the right thigh, left thigh, right scapula, left scapula, and left hand. 2. The RO should also request that the veteran provide the names, addresses, and approximate dates of treatment for all VA and non VA health care providers who have provided treatment or evaluations at any time since service for his low back complaints, his claimed foot injury, and any of his currently service connected disabilities. When the requested information and any necessary authorizations have been received, the RO should attempt to obtain copies of all indicated records which are not already of record. The records requested should include records from the VA Medical Centers in Fargo, North Dakota and Minneapolis, Minnesota; the Bemidji Clinic in Bemidji, Minnesota; the North Country Hospital in Bemidji, Minnesota; Lake Region Bone and Joint, PA, in Bemidji, Minnesota; David P. Nelson, D.C.; and Gordon W. Franklin, M.D., of the Northome Clinic in Northome, Minnesota. 3. Thereafter, the veteran should be afforded VA surgical, neurological, and orthopedic examinations by board certified physicians, if available in order to ascertain the nature and severity of all residuals of the veterans shrapnel wounds. All appropriate studies, including X rays, should be obtained and all clinical findings reported in detail. The findings should include the location of all retained metal fragments, especially in the low back area (see in this regard, the May 3, 1990 X-ray study of the lumbar spine), as well as an exact description of all scarring due to the veteran's service connected injuries, and a description of all neurological symptoms and limitation of function in the anatomical areas affected. The orthopedic examiner should also conduct an evaluation to determine the nature and severity of the veteran's lumbar spine disorder(s). The claims folder must be made available to the examining physicians prior to their evaluations so that they may study the pertinent clinical records in detail. At the conclusion of the evaluation, the orthopedic physician should express an opinion , with complete rationale, as to whether it is at least as likely as not that any or all low back pathology found is the result of any of the veteran's service connected shrapnel wounds. 4. Then, the RO should undertake any other indicated development and readjudicate the issues of whether new and material evidence has been submitted to reopen a claim of service connection for a low back disorder and entitlement to service connection for the residuals of a foot injury. The RO should also again adjudicate the issues of increased evaluations for residuals of shrapnel wounds which are currently certified for appeal. In addition, the RO should adjudicate the issues of a compensable evaluation for the residuals of shrapnel wounds to the right hand, and entitlement to separate compensable evaluations for the residuals of shrapnel wounds to the right knee and thigh. If the issues of service connection for low back disorder and service connection for the residuals of a foot injury, and the issues of increased evaluations for the residuals of shrapnel wounds to the right scapula, left thigh, right lateral thigh and right knee, left hand,and left mid scapula, posterior thorax, and upper back are denied, the veteran and his representative should be provided a Supplemental Statement of the Case and afforded a reasonable opportunity to respond. If the issue of retroactive benefits discussed in paragraph 1, and/or the issues of a compensable evaluation for the residuals of shrapnel wounds to the right hand, and separate compensable evaluations for the residuals of shrapnel wounds to the right thigh and right knee, are denied and the veteran files a timely Notice of Disagreement, he and his representative should also be provided a Statement of the Case in regards to these matters. The remaining issues certified for appeal will be held in abeyance pending completion of the above development. Thereafter, the case should be returned to this Board for further appellate consideration, if otherwise in order. No action is required of the veteran until he is so informed by the RO. By this remand the Board intimates no opinion, either factual or legal, as to the appropriate outcome warranted in this case. F. JUDGE FLOWERS Member, Board of Veterans' Appeals NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals. The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1993).