BVA9501704 DOCKET NO. 92-12 330 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in San Juan, Puerto Rico THE ISSUES 1. Entitlement to service connection for a psychiatric disorder. 2. Entitlement to an increased rating for dorsolumbar paravertebral myositis with scoliosis, currently evaluated as 10 percent disabling. 3. Entitlement to a permanent and total disability rating for pension purposes. REPRESENTATION Appellant represented by: American Red Cross WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Thomas A. Pluta, Counsel INTRODUCTION The veteran was born in January 1944 and had active service from April 1962 to April 1965. This appeal arises from an April 1991 rating action of the San Juan, Puerto Rico Regional Office (RO) which granted service connection for dorsolumbar paravertebral myositis with scoliosis, assigned a 10 percent rating, and denied service connection for a psychiatric disorder (a schizo-affective disorder) and nonservice-connected pension benefits; the veteran appeals the 10 percent rating as inadequate. By decision of March 1993, the Board of Veterans' Appeals (Board) remanded this case to the RO for further development of the evidence and due process development and for adjudication of the inextricably- intertwined issue of entitlement to service connection for a stomach disorder. In an April 1994 rating action the RO denied service connection for a stomach disorder and in April 1994, the veteran and his representative were provided copies of a supplemental statement of the which also included the new issue of entitlement to service connection for a stomach condition. The veteran was instructed to file a substantive appeal on the new issue within 60 days and that if a substantive appeal was not filed within 60 days, the case would be forwarded to the Board for appellate consideration of the prior issues. Neither the veteran nor his representative responded within 60 days of the supplemental statement of the case as is required by 38 C.F.R. § 20.302(c). Accordingly, that issue is not properly before the Board at this time. REMAND The U.S. Department of Veterans Affairs (VA) has a duty to assist the veteran in the development of facts pertinent to his claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.103(a) (1993). The U.S. Court of Veterans Appeals (Court) has held that the duty to assist the veteran in obtaining and developing available facts and evidence to support his claim includes obtaining medical records to which the veteran has referred and obtaining adequate VA examinations; the Court also stated that the Board must make a determination as to the adequacy of the record. Littke v. Derwinski, 1 Vet.App. 90 (1990). Fulfillment of the statutory duty to assist includes conducting a thorough and contemporaneous medical examination, one which takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully-informed one. Green v. Derwinski, 1 Vet.App. 121 (1991). Under 38 C.F.R. § 4.2 (1993), if an examination report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes. Moreover, the VA has a duty to acknowledge and consider all regulations which are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusion. Schafrath v. Derwinski, 1 Vet.App. 589 (1991). In the March 1993 Remand decision, the Board instructed the RO to contact the Social Security Administration and request, among other things, a copy of the Social Security decision denying disability benefits to the veteran. Although the requested development was accomplished, the Social Security decision dated October 18, 1991 was not translated into English. The Board also instructed the RO to obtain copies of all records of psychiatric treatment of the veteran by the Centro Salud Mental de Mayaguez, Puerto Rico and by Dr. Enrique Carlo. Although the RO by letter of April 1993 requested the veteran to sign and submit appropriate forms giving his consent for the release to the VA of all requested records, the record is unclear whether the requested forms were ever received from the veteran or whether the RO ever pursued any follow-up development to secure copies of the requested records. The records of psychiatric treatment by Dr. Carlo are particularly pertinent, in that the veteran has alleged treatment beginning within two weeks of separation from service and continuing until approximately 1980. In the March 1993 Remand decision, the Board also instructed the RO to adjudicate the question of whether the veteran's alcohol abuse could be considered for the purpose of assigning a permanent and total disability rating, but the April 1994 rating action failed to address this matter. In Hart v. Brown, No. 92-576 (U.S. Vet. App. July 15, 1993), a single-judge action cited for guidance, the Court concluded that the Board erred when it considered a claim when the RO had not conformed to the dictates of an earlier Board Remand. The Court has also held that the Board must consider only independent medical evidence to support its findings, rather than provide its own medical judgment in the guise of a Board opinion. Colvin v. Derwinski, 1 Vet. App. 171 (1991). With respect to the issue of service connection for a psychiatric disorder, the VA is obligated to give the veteran a medical examination to include a medical opinion as to whether his current disability is in any way related to those he may have experienced in service. Moore v. Derwinski, 1 Vet. App. 401 (1991). By decision of March 1993, the Board remanded this case to the RO to afford the veteran VA examinations by specialists including in gastrointestinal disease, orthopedics, neurology, psychiatry, and dermatology to determine the nature and extent of any disability present. Appellate review of the report of gastrointestinal examination discloses conflicting findings with respect to the presence of a gastrointestinal disorder: whereas the gastrointestinal examination showed no disability, an upper gastrointestinal series showed gastroesophageal reflux. The report of gastrointestinal examination conducted in late December 1993 suggests that the examiner did not have all records before him at the time of the examination, as he stated that the veteran had had no gastrointestinal diagnostic studies performed, whereas the record shows that the upper gastrointestinal series was performed in mid-December. Appellate review of the November 1993 neurological examination report discloses that the examiner indicated that the results of electromyographic and nerve conduction velocity studies of the lower extremities were needed, but the record is unclear whether or not these studies were actually performed, or whether they were conducted and the results are merely not of record and need to be obtained and associated with the claims folder. Appellate review of the November 1993 orthopedic examination report discloses that the examiner failed to examine the veteran's right hand for any residuals of a fracture, specifically, a fracture of the proximal head of the fifth phalanx, as requested in the March 1993 Board Remand decision; the RO also failed to address this matter in the rating action of April 1994. The Board Remand also instructed each examiner to render an opinion as to what effect the disabilities found had on the veteran's ability to work, and state whether the veteran's disabling conditions were susceptible to improvement through appropriate treatment, with discussion, where appropriate, of the effect of pain upon employability; however, each examination report is deficient in this respect. Although a VA Social and Industrial Field Survey of the veteran was requested to include explanation of questionable evidence regarding alcohol abuse, the December 1993 Survey failed to address the matter of alcohol abuse. Under the circumstances, further development is required, and the case is REMANDED to the RO for the following: 1. An English translation of the Social Security Administration letter dated October 18, 1991 denying disability benefits to the veteran should be obtained and associated with the claims folder. 2. Copies of all records of treatment of the veteran from 1993 to the present time at the VA Mayaguez Outpatient Clinic, and all records of hospitalization at the VA Medical Center, San Juan, Puerto Rico from 1992 to the present time, including a February 1992 report of hospitalization, should be secured by the RO and associated with the claims folder. 3. The veteran should be contacted at his correct, current address and requested to sign and submit appropriate forms giving his consent for the release to the VA of all records of psychiatric treatment by the Centro Salud Mental de Mayaguez, Puerto Rico (including any treatment in the day hospital program), and by Dr. Enrique Carlo, Cabo Rojo, Puerto Rico. The RO should then secure copies of all records and associate them with the claims folder. The RO should specify that the records being sought from Dr. Carlo are all psychiatric treatment records of the veteran, particularly including those from April 1965 and continuing until approximately 1980. 4. After the above- mentioned records have been obtained, the veteran should be afforded special VA gastrointestinal, orthopedic, neurological, psychiatric, and dermatological examinations to determine the nature and extent of any disability present, including any psychiatric disorder; dorsolumbar paravertebral myositis with scoliosis, including complaints of chronic back pain involving numbness of the extremities; any residuals of a fracture of the right hand, specifically, a fracture of the proximal head of the fifth phalanx; a skin disorder, including miliaria rubra, dermatoheliosis, and actinic dermatitis; and any stomach disorder claimed to be secondary to prescribed medications. The psychiatric examiner should furnish opinions for the record as to whether the veteran's 1965 inservice suicidal gestures were the early manifestations of or in any way etiologically related to any currently- diagnosed psychiatric disorder, and whether the veteran's alcohol abuse is primary in nature or a manifestation of a psychiatric disorder. The clinical findings and reasons upon which the opinions are based should be clearly set forth. All indicated tests should be conducted, or reports of tests conducted associated with the claims folder, as the case may be, including electromyographic and nerve conduction velocity studies of the lower extremities deemed necessary on VA neurological examination of November 1993. The claims folder should be made available to each examiner prior to each examination so that he may review pertinent aspects of the veteran's military, medical, and psychiatric history, as appropriate, and comment upon the effects of each disability upon the veteran's ordinary activity and on how it impairs him functionally. Each examiner should render an opinion for the record as to what effect the disabilities found have on the veteran's ability to work, and state whether the veteran's disabling conditions are susceptible to improvement through appropriate treatment. Where appropriate, the effect of pain upon employability should be discussed. The clinical findings and reasons upon which the opinions are based should be clearly set forth. 5. When the requested developments have been completed, the case should be reviewed by the RO and a rating decision prepared which addresses all issues before the Board including the matter of whether the veteran's alcohol abuse is a manifestation of his psychiatric disorder, or is primary in nature and the result of his own willful misconduct. If the decision remains adverse to the claimant, he and his representative should be furnished a Supplemental Statement of the Case which discusses the issue of whether the veteran's alcohol abuse is a manifestation of his psychiatric disorder or is primary in nature and the result of his own willful misconduct. Thereafter the case should be returned to the Board for further appellate consideration. C. W. SYMANSKI 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 is appealable to the Court. 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).