BVA9502429 DOCKET NO. 91-18 227 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUES 1. Entitlement to compensation benefits for an acquired psychiatric disorder on the basis that such disorder is secondary to a disability for which benefits are payable pursuant to the provisions of 38 U.S.C.A. 1151 (West 1991). 2. Entitlement to compensation benefits for a bilateral shoulder disorder on the basis that such disorder is secondary to a disability for which benefits are payable pursuant to the provisions of 38 U.S.C.A. § 1151 (West 1991). WITNESSES AT HEARING ON APPEAL The appellant and his spouse ATTORNEY FOR THE BOARD Stephen F. Sylvester, Counsel INTRODUCTION The veteran in this case served on active duty from May 1965 to January 1967. In a decision of July 8, 1991, the Board of Veterans' Appeals (Board) denied service connection for an acquired psychiatric disorder and a bilateral shoulder disorder, claimed as secondary to a disability for which benefits are payable pursuant to the provisions of 38 U.S.C.A. § 1151 (West 1991). The veteran filed a timely appeal to the United States Court of Veterans Appeals (Court). In [citation redacted], the Court vacated and remanded the case to the Board for compliance with the agreement between the parties in a joint motion for remand. The Court noted that there were existing records relevant to the claim which were not, but should have been, contained in the record when the Board considered this case in July 1991. In April 1994, a hearing was held in Des Moines, Iowa, before a traveling member of the Board. A transcript of that hearing is included in the veteran's claims folder. Finally, it would appear that, in addition to the issues before us, the veteran also seeks compensation benefits for disorders of the spine, the left eye, the heart, and the stomach. In that regard, we note that, by a decision of April 1990, the Board denied service connection for arthritis of the spine, a left eye disorder, heart disease, and a stomach disorder. That decision is final. The issues of whether the veteran has submitted new and material evidence to reopen claims of compensation benefits for a chronic back disorder, a left eye disorder, heart (cardiovascular) disease, and a stomach disorder have not been developed or certified for appellate review. They will not be addressed herein, but are referred to the Regional Office (RO) for any appropriate action. In addition, the veteran apparently seeks entitlement to a total disability rating based upon individual unemployability. This issue also has not been developed or certified for appellate review. It is referred to the RO for appropriate action. We observe that the issues on appeal were previously before the Board in Sep- tember 1993 and June 1994, at which times the case was remanded for additional development. The case is now, once more, before the Board for appellate review. REMAND In the June 1994 remand the Board ordered the Department of Veterans Affairs (VA) orthopedic and neurologic examinations to determine the existence, exact nature, and etiology of any disorder of each shoulder. Those examinations were to be conducted by specialists who had not previously seen or examined the veteran. Each examiner was to specifically comment as to the presence or absence of right and left shoulder disorders, and, if present, whether such disorders were most probably the result of the veteran's service-connected iatrogenic nerve damage. In addition, the veteran was to be afforded a VA psychiatric examination, to determine the existence, exact nature, and origin of any current psychiatric disability. The examiner was to specifically express an opinion as to the causal relationship, if any, between the veteran's current psychiatric disorder and his service-connected iatrogenic cervical nerve damage. VA orthopedic, neurologic, and psychiatric examinations were undertaken in August 1994. The neurologic examination culminated in a diagnosis of left C8 radiculopathy, with atrophy, weakness, and decreased sensation in the left C8 distribution as the postoperative residuals of rib resection for thoracic outlet syndrome. This particular disability is service connected and evaluated as 20 percent disabling. On orthopedic examination, there was a palpable "snap" in the veteran's left acromioclavicular joint with tenderness over the biceps tendon, culminating in a diagnosis of left bicipital tendinitis. The orthopedic examiner did not indicate whether the tendinitis was proximately due to or the result of the veteran's service-connected iatrogenic nerve damage, a question specifically raised in the Board's June 1994 remand. We observe that, on psychiatric examination conducted in August 1994, the veteran was described as exhibiting a "real syndrome" associated with nerve injury during surgery for thoracic outlet syndrome. It was the opinion of the examiner that the veteran suffered from a pain disorder associated with a general medical condition, in addition to an adjustment disorder with depressed mood. He further commented that the veteran's depression was secondary to a chronic medical illness, presumably, iatrogenic nerve damage. Based on those findings, the RO, in a decision of September 1994, granted service connection for a pain disorder associated with a general medical condition, evaluated as noncompensably disabling. However, in the report of the August 1994 psychiatric examination the examiner did not indicate whether the veteran's adjustment disorder was causally related to his service-connected iatrogenic nerve damage. Moreover, the RO has not yet fully adjudicated the issue of service connection for an adjustment disorder as secondary to the veteran's service- connected nerve damage. The VA has a duty to assist the veteran in the development of all facts pertinent to his claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.103(a) (1993). The Court has held that this duty to assist the veteran in obtaining and developing available facts and evidence to support his claim includes obtaining adequate VA examinations, including examination by a specialist, when necessary. Littke v. Derwinski, 1 Vet.App. 90 (1990); see also Hyder v. Derwinski, 1 Vet.App. 221 (1991). In light of the aforementioned, the case is, once again, REMANDED to the RO for the following actions: 1. The veteran's entire claims folder should be forwarded to the orthopedic specialist at the Iowa City, Iowa, VA Medical Center who examined the veteran in August 1994. Following an in-depth review of the veteran's claims file, including the findings on that August 1994 examination, that physician should render a specific opinion as to whether the left bicipital tendinitis then diagnosed is proximately due to or the result of the veteran's service-connected iatrogenic nerve damage. Should that physician no longer be available, the veteran should be afforded an additional VA orthopedic examination by an examiner who has not heretofore seen or examined the veteran. All pertinent symptomatology and findings should be reported in detail. That examiner should, then, specifically render an opinion as to whether any diagnosed shoulder disorder resulted from the veteran's service- connected iatrogenic nerve damage at C8 on the left side. The veteran's claims folder should be available to, and reviewed by, the examiner prior to the examination to facilitate the study of the case. 2. In addition, the veteran's claims folder should be furnished to the psychiatric examiner who examined the veteran in August 1994. Following review of the veteran's entire claims file, including the results of the examination in August 1994, the examiner should specifically express an opinion as to whether the recently diagnosed adjustment disorder with depressed mood is proximately due to or the result of the veteran's service-connected iatrogenic nerve damage. Should that psychiatric examiner be unavailable, the veteran should be afforded an additional VA psychiatric examination by a psychiatrist who has not heretofore seen or examined the veteran. All pertinent symptomatology and findings should be reported in detail. That psychiatric examiner should then specifically express an opinion as to whether any currently diagnosed psychiatric disorder is proximately due to or the result of the veteran's service-connected iatrogenic nerve damage at C8 on the left side. 3. The RO should then adjudicate the issue of entitlement to service connection for adjustment disorder with depressed mood or (if the veteran is reexamined and another psychiatric disorder is diagnosed) for any additional psychiatric disorder diagnosed. Should the veteran's claims remain denied following completion of the above actions, the veteran and his representative should be provided with an appropriate supplemental statement of the case and given an ample opportunity to respond. The case should then be returned to the Board for further appellate consideration. No action is required of the appellant until he receives further notice. GEORGE R. SENYK 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).