BVA9506136 DOCKET NO. 92-20 980 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder. 2. Entitlement to a compensable evaluation for a dorsolumbar musculoligamentous strain. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. K. Mulroy, Associate Counsel REMAND The veteran had active duty from May 1976 to May 1979. In a rating decision dated in July 1991, the Reno, Nevada, Regional Office (hereinafter the RO) denied service connection for an adjustment disorder with insomnia as secondary to a service connected back disability. The veteran appealed. In a decision dated in November 1993, the Board remanded the case for consideration of service connection for a psychiatric disability on a direct basis. The RO continued the denial of service connection on a direct and secondary basis, in a decision dated in March 1994. The veteran is represented by the Disabled American Veterans. It is noted that also at issue is a claim for an increased evaluation for the veteran's service connected dorsolumbar back disability. Consideration of this issue is deferred pending this remand. The veteran contends that he developed a psychiatric disorder because of his service connected back injury. He maintains that he received treatment soon after service, and that he has continued to require treatment since that time. He contends that his symptoms include nervousness, insomnia, irritability, and depression. In service medical records, it was noted that the veteran injured his back in July 1978, that x-rays were interpreted as suspected compression fractures of T12 and L1, and he was diagnosed with a back strain at that time. He subsequently made numerous complaints regarding back problems during service. In a record dated in August 1978, it was noted that the veteran complained of his ongoing back problem and reported that he had been "jumped" several days previously. The examiner noted that the veteran was a chronic complainer on this problem, and referred the veteran to Mental Hygiene for evaluation. In November 1978, it was noted that the veteran complained of chronic back pain and that this was an ongoing problem. The examiner noted that the veteran was uncooperative, and requested that the veteran's mental state be evaluated as it related to possible drug use. There are no records to indicate that the requested examinations were performed. In a VA examination regarding his back, dated in July 1980, the physician diagnosed probable musculo-ligamentous strain, dorso- lumbar region, and noted that there was no evidence of fractures of T12 and L1. In conjunction with that examination, the veteran was also seen by a psychology technician, who noted that the veteran reported having received treatment for nerves at a private facility, Martin Luther King Hospital. He complained of back and neck pain, broken sleep every night, and digestive upsets every day. He also complained that he had employment difficulties because of his back problems, and that he was divorced and had been unable to see his 17 month old son since separation from service. The psychology technician referred the veteran to Dr. Klingbeil (SW-Psych.) for diagnostic intake, and set up the appointment for July 21, 1980. Again, there are no records to indicate that the requested intake was performed. In a VA examination regarding his back disability, dated in July 1982, the orthopedic specialist noted that the veteran alleged that he had been seen by a psychiatrist because his back problems had resulted in problems with his nerves. The physician diagnosed conversion reaction manifested by low back pain, with no evidence of an acute or chronic back problem present except for muscle tightness, which was voluntary. The veteran continued to receive treatment for nervous problems variously diagnosed as uncomplicated bereavement in 1990, dysthymia with chronic anxiety in 1991, and paranoid schizophrenia later in 1991. In a subsequent VA examination dated in 1991, dysthymia was again diagnosed, and the physician noted that there were no findings of symptoms of paranoid schizophrenia. In VA outpatient treatment records dated in late 1991 and early 1992, it was noted that the veteran continued to receive medication for his psychiatric problems, and in February 1992, a social worker noted that the veteran was seen for depression and paranoia, exacerbated by his back pain and the stress of unemployment. After service, the veteran also continued to complain of and receive treatment for his back. In VA outpatient treatment records dated in 1980 and 1981, he was diagnosed with back strain. As previously noted, in a VA examination dated in July 1982, the orthopedic specialist diagnosed conversion reaction manifested by low back pain, with no evidence of an acute or chronic back problem. Except for findings of tenderness of the dorsal and lumbar spine, subsequent examination and treatment records, including repeated x-ray evaluation and motor and sensory examinations, dated from the mid 1980's to the early 1990's, failed to reveal objective evidence of impairment. Some loss of motion was indicated, although poor cooperation was noted as causing the range of motion readings to be unreliable. In response to the Board remand in 1993, the RO noted that prior attempts to obtain treatment records from the VA Medical Center at Wadsworth and the VA Outpatient Clinic at Hill Street had been unsuccessful. The RO instead contacted the Las Vegas Outpatient Clinic and requested any records in his medical file of treatment at the VA Medical Center at Wadsworth and the VA Outpatient Clinic at Hill Street between 1979 and 1981. Additional records were received, including records from the Las Vegas Outpatient Clinic and the Outpatient Clinic on South Hill Street in Los Angeles, in which it was indicated that between April to October 1981, the veteran was seen with complaints of headaches, nerves, and irritability; and he complained that he was angry because he was unable to participate in sports as he had prior to his back injury. He was variously diagnosed with tension headaches and situational stress due to lack of involvement in any activities. Additionally, the veteran was seen in psychiatry in April 1981 on a walk-in basis, reported that after his back injury he had been feeling very nervous, that he had recently been prescribed Sinequan, but felt he needed more medication to relieve pain. The physician noted that the veteran did not appear to be overtly anxious or depressed; that he was coherent, relevant, and well oriented; that there was no thought disorder; and that the veteran was in good contact. The physician diagnosed a back injury and referred him for an orthopedic consultation. An additional psychiatric consultation dated in May 1981, focused on the veteran's complaints of headaches. No mention was made of a nervous condition. The physician assessed that he wanted to rule out migraines, and that the headaches were more typical of tension headaches. Pursuant to the remand decision of November 1993, the RO also attempted to obtain records of treatment dated between 1979 and 1981 from the Martin Luther King Hospital. The response from the facility, dated in February 1994, was that no records regarding the veteran were available. The Department of Veterans Affairs (hereinafter the VA) has a duty to assist in the development of the evidence pertinent to the veteran's claim. 38 U.S.C.A. § 5107 (West 1991); 38 C.F.R. § 3.103 (1993). This panel of the Board notes that the veteran's psychiatric complaints have been variously diagnosed both during and since service. Additionally, his back complaints have not resulted in a definitive finding of chronic underlying anatomical pathology, as reflected by the zero percent rating now in effect. Particularly of note is the 1982 diagnosis which associated the back and psychiatric problems as a conversion reaction manifested by low back pain, with no evidence of an acute or chronic back problem. The veteran's psychiatric picture is further obscured because of the absence, as noted above, of several consultations requested during and soon after service. The Board concludes that every effort has been made to obtain the relevant treatment records. However, an additional VA psychiatric examination would be helpful in clarifying the veteran's diagnostic picture. The Board regrets the additional delay occasioned by remanding this case, although it is felt that proceeding with a decision on the merits at this time would not withstand Court scrutiny Hense, in order to accord the veteran every consideration, the case is being REMANDED for the following action: The veteran should be requested to undergo a VA psychiatric evaluation in order to clarify a current psychiatric diagnosis, to include consideration of whether the veteran has manifested what would more appropriately be considered as a conversion disorder (or psychophysiological musculoskeletal disorder). The examiner is requested to review the entire claims folder, prior to the examination for review of the pertinent medical history regarding the veteran's psychiatric and other pertinent complaints and findings. The examiner is requested to comment upon the veteran's complaints during and soon after service, particularly as to the possibility that they were indicative of a prodromal stage of any currently diagnosed psychosis; and to offer an opinion as to the etiology of the veteran's current psychiatric disorder, if any. When the above development has been completed, the case should again be reviewed by the originating agency. If the decision remains adverse to the veteran, he and his representative should be furnished a supplemental statement of the case. They should be afforded a reasonable period to respond. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if appropriate. The veteran need take no action until he is further informed. The purpose of this REMAND is to obtain clarifying information and no inference should be drawn regarding the final disposition of the claim. JEFF MARTIN 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).