BVA9503541 DOCKET NO. 92-08 111 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Wichita, Kansas THE ISSUES 1. Entitlement to service connection for a cervical spine disability. 2. Entitlement to service connection for a degenerative process of the entire spine. 3. Entitlement to a permanent disability rating, pursuant to 38 C.F.R. § 3.340(b) (1994). REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. M. Wernimont, Associate Counsel INTRODUCTION The veteran served in the Army National Guard from July 1975 to October 1988. She participated in active duty for training from February to October 1976 and participated in inactive duty training on December 6, 1986. This case came before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Wichita, Kansas, Regional Office (RO). A January 1991 rating decision implemented a June 1990 Board decision, and granted service connection for postoperative residuals of a herniated nucleus pulposus, L4-L5, and assigned a 20 percent schedular evaluation, effective August 1988. A September 1991 rating decision implementing the hearing officer's decision increased the disability evaluation for the low back disorder to 40 percent. An October 1991 rating decision denied the veteran's claim of entitlement to service connection for a cervical spine disorder. A March 1992 rating decision denied the veteran's claim for a total compensation rating based upon individual unemployability. In August 1992, a hearing was held before Jan Donsbach, who is the Board member making this decision and who was designated by the Chairman to conduct that hearing, pursuant to 38 U.S.C.A. § 7102(b) (West 1991). The case was previously before the Board in November 1992, when it was remanded for additional development. A March 1994 rating decision increased to 60 percent the disability evaluation for service-connected postoperative herniated nucleus pulposus, L4-L5; denied service connection for a cervical spine condition; denied service connection for degenerative process of the entire spine; granted service connection for major depression with morbid preoccupation and assigned it a 30 percent evaluation. The RO also denied service connection for conversion disorder, post-traumatic stress disorder and personality disorder, not otherwise specified, with dependent obsessive-compulsive, borderline and schizotypal traits; and granted the veteran a total disability evaluation due to individual unemployability. As part of a notice of disagreement received by the RO in April 1994, the veteran voiced disagreement with the RO's selection of the effective date of the total disability evaluation due to individual unemployability, and also with the RO's denial of service connection for degenerative process of the entire spine. At that time, the veteran also raised the issue of entitlement to a permanent disability designation with associated benefits, pursuant to 38 C.F.R. § 3.340(b) (1994). All issues were certified for appellate review. A May 1994 rating decision by the RO denied service connection for a cervical spine condition, and granted an earlier effective date of November 8, 1991 for the total disability evaluation due to individual unemployability. In a statement received by the RO in October 1994, the veteran's representative stated the issues as entitlement to service connection for a cervical spine condition and a degenerative process of the entire spine and entitlement to a determination of permanence of a total disability rating. REMAND At the outset, we are aware that the veteran may have received additional medical treatment regarding her disabilities, including treatment for a psychiatric disorder. More recent medical records, if available, might assist in resolving the question of permanency. We note that although the RO obtained all of the preservice medical data, it was not in the claims folder at the time of the VA examinations. As a result, it is necessary to determine the date of origin of degenerative changes of the veteran's spinal vertebrae and the relationship, if any, between such symptoma-tology and the veteran's service-connected back disorder. Of special importance is the veteran's allegation set forth by her representative that a service department X-ray report in September 1976 suggests degenerative arthritis of the cervical spine. Several psychiatric disorders have been diagnosed but the RO has considered only depression as service connected. The question of whether there is an interrelationship among all of the other diagnoses must be resolved by a psychiatrist. Other medical opinions are needed to assist our determination as to whether the veteran's condition of total disability will be permanent, as well as the probability of permanent improvement with treatment. Therefore, we find that an appellate determination on the merits of this case is premature at this time. To ensure that VA has met its duty to assist the claimant in developing the facts pertinent to the claim and to ensure full compliance with due process requirements, the case is REMANDED to the regional office for the following development: 1. The RO should obtain the names and addresses of all medical care providers, both VA and private, who treated the veteran for her spine disorders and for her psychiatric disorder since November 27, 1992, the date of the remand. After securing the necessary releases, the RO should obtain copies of these records and should add them to the claims file. 2. Following the above, the veteran should be accorded an examination by a VA orthopedist to determine the nature and severity of all spine disorders now present. The claims folder and a copy of this remand and 38 C.F.R. § 3.340(b) (1994).must be made available and reviewed by the examiner prior to the examination. All necessary tests including X-rays should be conducted and the examiner should review the results of any testing prior to completion of the report. The examination must be conducted in accordance with the VA Physician's Guide for Disability Evaluation Examinations. The report of examination should include a detailed account of all manifestations of the disorder(s) found to be present. The attention of the examiner is directed to the service department September 1976 X-ray report suggesting early spur formation of the cervical spine. The orthopedist should render medical opinions as to the following: a. The etiology of each disorder and whether degenerative changes in the veteran's spine began in service. b. Whether any of the changes in the cervical and thoracic spines are part of or have been caused by the veteran's already service-connected low back disorder--postoperative residuals of a herniated nucleus pulposus, L4-L5. c. Is the veteran's impairment, upon which the award of a total disability evaluation due to individual unemployability was based, reasonably certain to continue throughout her life d. Are the diseases and injuries of long-standing presence, and if so, is the probability of permanent improvement under treatment remote? The orthopedist may consider the age of the veteran in determining permanence. The report of examination should contain complete rationale for all opinions expressed. 3. The RO should schedule the veteran for a comprehensive VA psychiatric examination to determine the nature and severity of all psychiatric disorder(s) now present. The entire claims folder and a copy of this remand and 38 C.F.R. § 3.340(b) (1994).must be made available to and reviewed by the examiner prior to the examination. This study must be conducted in accordance with the VA Physician's Guide for Disability Evaluation Examinations. All indicated tests, including appropriate psychological studies with applicable subscales, must be conducted and the examiner should review the results of any testing prior to completion of the report. The report of examination should include a detailed account of all manifestations of psychiatric pathology found to be present. The examiner must assign a Global Assessment of Functioning Score consistent with the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (3d ed. rev., 1987), and explain what the assigned score represents. It is imperative that the psychiatrist include a definition of the numerical code assigned. See Thurber v. Brown, 5 Vet.App. 119 (1993). The examiner should provide opinions as to the following: a. If there are different psychiatric disorders, the diagnoses should be reconciled. Whatever symptoms are associated with and whatever disorder(s), if any, are part of or caused by the service-connected disorder--depression with morbid preoccupation should be specified. If certain symptomatology cannot be disassociated from one disorder or another, it should be specified. b. How the symptoms of the service- connected psychiatric disorder affect the veteran's social and industrial capacity. c. Is the veteran's impairment, upon which the award of a total disability evaluation due to individual unemployability was based, reasonably certain to continue throughout his life? d. Are the diseases of long-standing presence, and if so, is the probability of permanent improvement under treatment remote? The psychiatrist should provide complete rationale for all opinions expressed. 4. The RO should review the examination reports and determine if they are adequate for rating purposes and in compliance with this Remand. Any not in compliance should be returned for corrective action. 5. Following completion of the foregoing, the RO must readjudicate the issues on appeal as well as adjudicate service connection for any psychiatric disorder found on examination other than the service-connected depression with morbid features. Following completion of these actions and, if the decision remains unfavorable, the veteran and representative should be provided with a supplemental statement of the case and afforded a reasonable period of time in which to respond. Thereafter, in accordance with the current appellate procedures, the case should be returned to the Board for completion of appellate review. No action is required of the veteran until further notice is issued. JAN DONSBACH 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) (1994).