Citation Nr: 0003796 Decision Date: 02/14/00 Archive Date: 02/15/00 DOCKET NO. 98-11 315 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to an increased rating for arthritis of the cervical spine, currently evaluated as 30 percent disabling. 2. Entitlement to an increased rating for neurosis, mixed type, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Kathleen Reardon Fletcher, Associate Counsel INTRODUCTION The veteran served on active duty from September 1948 to August 1952, from August 1952 to August 1958, and from September 1958 to June 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 1995 rating decision by the Pittsburgh, Pennsylvania RO that denied entitlement to increased ratings for arthritis of the cervical spine, evaluated as 20 percent disabling, and neurosis, evaluated as 10 percent disabling. In February 1998, the rating for the veteran's cervical spine disability was increased from 20 percent to 30 percent and the appeal was continued. The Board notes that during an August 1997 personal hearing, the veteran withdrew the following issues from appellate status: entitlement to service connection for a heart disorder, to include hypertension; entitlement to service connection for a spinal cyst; entitlement to a compensable rating for a kidney stone; and whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for defective vision. See 38 C.F.R. § 20.204 (1999). REMAND The veteran contends that his service-connected cervical spine disability is more disabling than currently evaluated. The medical evidence of record contains many references to increased pain in the veteran's cervical spine. For example, during an August 1997 personal hearing, the veteran testified that he has constant pain and periodic numbness in his neck. He stated that his neck pain radiates into his head, shoulders and arms. The veteran also stated that he has muscle spasms in his neck occasionally. In addition, the veteran testified that he receives treatment for his service- connected neck disability at the Altoona VA Medical Center every three months. An October 1997 VA examination report notes the veteran's complaints of pain in his neck that "is becoming more severe and constant." The veteran stated that his neck is stiff and cracks. He reported that he has problems driving, because his neck is too painful to move properly. Arguments made by the veteran such as those mentioned above imply that he experiences difficulties beyond that described by the available record. In such instances, the provisions of 38 C.F.R. § 4.40 (1999) require that examinations be conducted that adequately portray not only the identifiable anatomical damage, but also the functional loss experienced by the veteran. More specifically, any examination of musculoskeletal disability done for rating purposes must include certain findings and conclusions that have heretofore been overlooked in the VA examinations of record. In the case of DeLuca v. Brown, 8 Vet. App. 202 (1995), the United States Court of Appeals for Veterans Claims (Court) specifically pointed out that such examinations must include consideration of all factors identified in 38 C.F.R. §§ 4.40, 4.45 (1999). Id. In reviewing the record, the Board notes that the most recent VA examination for the purpose of evaluating the veteran's service-connected cervical spine disability was performed in October 1997. Although regulations require that, in evaluating a given disability, the disability be viewed in relation to its whole-recorded history, 38 C.F.R. §§ 4.1, 4.2, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Clearly, an up- to-date VA examination is warranted to ensure a fully informed decision regarding the veteran's claim. Moreover, in reviewing the 1997 VA examination report, it appears that the extent of functional disability due to pain is not adequately portrayed in accordance with the directives of the Court in DeLuca. In this regard it is noted that 38 C.F.R. § 4.40 requires that rating of disabilities of the musculoskeletal system reflect functional loss due to pain and reduced strength or endurance. A part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.45, 4.59. In DeLuca the Court emphasized that a VA rating examination must be conducted so as to portray adequately not only the identifiable anatomical damage, but also the functional loss experienced by the veteran. As noted above, the Court specifically pointed out that such examinations must include consideration of all factors identified in 38 C.F.R. §§ 4.40, 4.45. DeLuca specifically requires that the medical examiner should be asked to determine whether there is any weakened movement, excess fatigability, or incoordination attributable to the service- connected cervical spine disability; and, if feasible, these determinations should be expressed in terms of the degree of additional range of motion loss or ankylosis. Additionally, the medical examiner should be asked to express an opinion on whether pain could significantly limit functional ability during flare-ups. This determination should also, if feasible, be portrayed in terms of the degree of additional range of motion loss or ankylosis. Although further delay is regrettable, additional VA orthopedic examination is warranted to ensure a fully informed decision regarding the veteran's claim. In addition, the veteran contends that his service-connected psychiatric disability is more disabling than currently evaluated. It is noted that the schedular criteria by which psychiatric disabilities are rated have been changed during the pendency of the veteran's appeal. See 61 Fed. Reg. 52695-52702 (Oct. 8, 1996) (effective Nov. 7, 1996). Therefore, consideration of both old and new criteria should be accomplished, Karnas v. Derwinski, 1 Vet. App. 308 (1991), and the criteria most favorable to the veteran's claim should be used. Under the new schedular criteria, a 100 percent rating is warranted for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. A 70 percent rating is warranted for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near- continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. A 50 percent rating is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 30 percent rating is warranted for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). A 10 percent rating is warranted for occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication. 38 C.F.R. § 4.130 (1999). VA has a duty to assist the veteran in the development of facts pertaining to his claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.103(a) (1999). The Court has held that the duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the veteran that takes into account the records of prior medical treatment. Green v. Derwinski, 1 Vet. App. 121 (1991). This is to ensure that the evaluation of a disability is a fully informed one. Following the gathering of all available medical records, the veteran should be afforded a VA psychiatric examination. Under the new rating schedule, the psychiatric examination must include the examiner's assessment of the veteran's degree of occupational and social impairment so that the criteria set forth in 38 C.F.R. § 4.130 (1999) may be applied. The Court has stated that an examination must provide sufficient information to rate the disability in accordance with the applicable rating criteria. See Massey v. Brown, 7 Vet. App. 204 (1994). An additional psychiatric examination must be conducted, and the examiner should provide a Global Assessment of Functioning (GAF) score and define what the score represents in accordance with the appropriate edition of the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders. In view of the forgoing, the case is REMANDED to the RO for the following: 1. The RO should contact the veteran in order to obtain the names and addresses of all medical providers where he has received treatment for his service- connected cervical spine disability and for his service-connected psychiatric disability since 1997. After obtaining all necessary releases, the RO should contact the named medical providers and request copies of all medical records concerning treatment of the veteran's service-connected cervical spine disability and service-connected psychiatric disability since 1997. 2. After the above has been completed, the veteran should undergo a special VA orthopedic examination for the purpose of determining the current severity of his service-connected cervical spine disability. The claims file must be made available to the examiner for review. All indicated tests and x-ray examinations should be accomplished. The examiner should fully describe any weakened movement, excess fatigability and incoordination present. Determinations on whether the veteran's cervical spine exhibits pain with use should be noted and described. If feasible, the determinations concerning pain, weakness and fatigability should be portrayed in terms of the degree of additional range of motion loss or ankylosis. If such a determination is not feasible, this should be stated for the record and the reasons provided. 3. In addition, the veteran should undergo a VA psychiatric examination for the purpose of determining the severity of his service-connected psychiatric disability and its impact on the veteran's social and industrial adaptability. It is imperative that the examiner review the claims folder prior to the examination, and that he/she review the revised criteria for rating psychiatric disabilities as discussed above, (to this end, it would be helpful to provide the examiner with a copy of this Remand) together with the criteria in effect prior to November 7, 1996. The examiner should render an opinion as to what effect the service-connected disability has on the veteran's social and industrial adaptability. The examiner should report the findings consistent with the revised regulatory criteria cited above. A Global Assessment of Functioning (GAF) should be provided, and the examiner should explain the meaning of any score. 4. Upon receipt of the examination reports, the RO should review the reports to ensure that they are adequate for rating purposes. If not, the RO should return the examination report(s) to the examining physician(s) and request that all deficiencies be remedied. 5. Following the completion of all development the RO should review the veteran's claims with regard to all pertinent diagnostic codes and regulations and, in particular, should consider both the old rating criteria for psychiatric disorders and the revised rating criteria which became effective November 7, 1996, and apply those criteria that are more advantageous to the veteran. If any action taken remains adverse to the veteran, he and his representative should be provided a supplemental statement of the case and a reasonable period of time for response. Thereafter, the case should be returned to the Board, if in order. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. C. W. SYMANSKI Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. 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) (1999).