BVA9503110 DOCKET NO. 92-08 838 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to an increased evaluation for residuals of a fracture at the C4-5 level with subluxation and sensory changes, currently evaluated as 20 percent disabling. 2. Entitlement to service connection for residuals of a low back injury. 3. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for depression. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. S. Nemeth, Associate Counsel INTRODUCTION The veteran's active service extended from January 1969 to March 1971. The issues of entitlement to an increased evaluation for residuals of a fracture of the cervical spine and entitlement to service connection for residuals of a low back injury originally came to the Board of Veterans' Appeals (Board) on appeal from a July 1990 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, which denied both claims. This matter was previously before the Board in August 1993, at which time the Board remanded the case for further development. The issue of whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for depression comes before the Board on appeal from a March 1992 rating decision by the RO in Nashville, Tennessee, which confirmed the previous denial of service connection, as no new and material evidence was presented. The issue was developed for appellate consideration during the pendency of the Board's previous Remand and the issue is now properly before the Board. REMAND Records submitted since the RO first denied service connection for depression in 1983 include VA treatment records which show frequent complaints of pain and a diagnosis of chronic pain, as well as diagnoses of major depression which has been reported as possibly due to the veteran's pain. The evidence raises a reasonable possibility that the depression could be due to the service-connected residuals of an inservice injury. The VA has a duty to assist the veteran in the development of his claim. 38 U.S.C.A. § 5107(a) (West 1991). This duty includes having the veteran examined. See Littke v. Derwinski, 1 Vet.App. 90 (1990). "If the medical evidence of record is insufficient...the BVA is always free to supplement the record by ordering a medical examination...." Colvin v. Derwinski, 1 Vet.App. 171, 175 (1991). The veteran's last VA psychiatric examination for compensation purposes was conducted in November 1976. The RO should have the veteran examined by a VA psychiatrist in order to determine whether the veteran does have depression, and if so, whether it is related to his service-connected disability. The RO has completed the requested development from the previous Remand, except for obtaining an opinion as to the existence of ankylosis in the veteran's cervical spine. The RO should obtain an opinion from the examining orthopedist regarding such. In view of the foregoing, it is the opinion of the Board that this case should be remanded to the RO for the following development: 1. The veteran should be examined by a VA psychiatrist who has not previously examined him to determine the nature and extent of any psychiatric disorder. The entire claims folder and a copy of this remand must be made available to and be reviewed by the psychiatrist prior to the examination. The report of the examination should include a detailed account of all manifestations of psychiatric pathology found to be present. If there are different psychiatric disorders, the psychiatrist should reconcile the diagnoses. All necessary special studies or tests including psychological testing are to be accomplished. The diagnosis should be in accordance with the American Psychiatric Association: DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL DISORDERS (3d ed. rev., 1987). Specifically, the psychiatrist should render an opinion on the following: If the veteran does have a chronic psychiatric disorder, is it part of or was it caused in any way by the inservice neck injury and/or symptoms associated with the service-connected residuals of the cervical spine fracture? 2. The RO should refer the entire claims folder and a copy of this remand to the VA physician who performed the June 1994 VA orthopedic examination. He should be requested to complete his report by providing responses to the questions listed below, with complete rationale for all opinions expressed. If the examining physician of June 1994 is not available, the RO should request an opinion from another VA orthopedist. If the new orthopedist deems it necessary, the veteran should be given a VA orthopedic examination, to be conducted in accordance with the Board's August 1993 Remand. A. What, if any, evidence of ankylosis is present in the veteran's cervical spine? B. What is the probability that the service-connected residuals of the cervical spine fracture caused or contributed in any way to cause the veteran's lower back disorder which has been recently identified as degenerative lumbosacral disc disease with narrowing of L-5/S-1? 3. The RO should review the examination reports and opinions and determine if they are in full compliance with this remand. Any report or opinion that is not in compliance with the remand should be returned to the examiner(s) for corrective action. Following the completion of these actions, the RO should review the veteran's claims and if the decision(s) remain unfavorable, the veteran and his representative should be provided with a supplemental statement of the case and be afforded a reasonable period of time in which to respond. Thereafter, the case, in accordance with the current appellate procedures, should be returned to the Board for completion of appellate review. No further action on the part of the veteran is required until further notice. JOAQUIN AGUAYO-PERELES Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1993).