BVA9501980 DOCKET NO. 91-47 912 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Increased rating for a lumbosacral strain, currently rated as 20 percent disabling. 2. Increased (compensable) rating for residuals of a fracture of the C-6 vertebra. 3. Service connection for headaches with insomnia, secondary to service-connected cervical spine disability. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD William L. Pine, Counsel INTRODUCTION The appellant served on active duty from January 1987 to January 1990. In the brief on appeal of December 1994, the appellant, through his representative, Paralyzed Veterans of America, Inc. (PVA), appears to raise a claim for service connection for residuals of injuries of the dorsal spine. PVA requests that the case be remanded to consider disability in the dorsal spine as part of the currently service-connected disabilities. Whereas the VA Schedule for Rating Disabilities, 38 C.F.R. Part IV (1993), provides for rating the dorsal spine separately from the cervical and lumbar spines, the claim would be for a separate disability from those currently service connected. The claim is not "inextricably intertwined," Harris v. Derwinski, 1 Vet.App. 180 (1991), with other claims on appeal, and remand to include the claim as part of the instant appellate case is not required. The claim is referred to the Department of Veterans Affairs (VA) Regional Office (RO) for appropriate action. In a remand of May 1993, the Board of Veterans' Appeals (Board) instructed that the RO inquire of the appellant whether he was raising a claim of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). The appellant did not respond affirmatively explicitly, but reiterated his inability to keep a job due to a service-connected disability and submitted evidence in support of that allegation. Regardless of the value of that evidence in the context of a claim for increased rating, it continues to appear that the appellant is pressing a claim for TDIU, which as yet is unadjudicated. The claim for TDIU, raised subsequent to the appeal for an increased rating for the same disability upon which the claim of unemployability is predicated, and the claim for increased rating are not "inextricably intertwined." Holland v. Brown, 6 Vet.App. 443, 445-47 (1993). The claim for TDIU is referred to the RO for appropriate action. REMAND Development of this claim remains incomplete. The appellant's representative, Paralyzed Veterans of America, Inc. (PVA), protests that the claim for service connection for headaches with insomnia as a result of service-connected cervical disability was denied in the rating decision of September 1993 as if there was a prior, final decision and the appellant had failed to submit new and material evidence to reopen the claim. See 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (1993). Although PVA is not precisely correct in its characterization of the rating decision of September 1993 as a denial to reopen a finally disallowed claim for failure to submit new and material evidence, the rating action and supplemental statement of the case of October 1993 are easily misunderstood as having done that. A claim for service connection for headaches was denied in the original rating decision of May 1990, in appellate status since the timely filed notice of disagreement in the instant appeal. The original denial was clearly on a direct basis only, as the September 1990 Statement of the Case, citing 38 C.F.R. §§ 3.301, 3.303 (1993), and the October 1991 hearing officer's decision, citing the same regulations, corroborate. The Regional Office (RO) in September 1993 denied the claim for headaches and insomnia on a direct or secondary basis on the grounds that it had previously been denied and there was no new evidence to consider as to whether service connection was warranted on a direct or secondary basis. The RO did not hold that the prior denial was final and subject to reopening only with new and material evidence, but it did find there was no new evidence to consider in support of a claim for secondary service connection after the appellant had failed to report for an examination scheduled to occur on June 3, 1993. He apparently had moved back to Indiana without informing VA until January 1994. In February 1994, when the Indianapolis RO requested a VA examination pursuant to the May 1993 remand by the Board of Veterans' Appeals (Board), the request did not include an examination for headaches, as instructed in the Board's remand. In the view of the Board, the appellant has yet to have an adjudication on the merits of his claim for service connection for headaches with insomnia as a result of service-connected cervical spine disability. Given the repeated pattern of the appellant's relocation from the VA region in which examinations are scheduled followed by expressions of willingness to report for examinations, another attempt to achieve an examination for headaches should be performed. PVA also notes that the VA examination of the neck of March 1994 failed to state ranges of motion for the cervical spine, although it did so for the lumbar spine. PVA notes that the motion of the cervical spine is expressed in terms of ability to put chin to chest and the like. The Board notes the following description in the report: "He can bend his right side and touch is shoulders on both sides," although what that means for rating purposes is unknown. The failure to express ranges of motion in degrees has been specifically found by the United States Court of Veterans Appeals to be a deficiency in an VA examination where range of motion was relevant to rating a disability. Littke v. Derwinski, 1 Vet.App. 90, 91 (1990). The examination of the cervical spine should be repeated. Moreover, given the claimed causal relationship between the cervical spine and the alleged headaches, the examinations for both complaints should be coordinated so that the examination for headaches can be informed by the findings regarding the neck. Finally, PVA asserts in its December 1994 brief that the appellant's lumbar spine disorder should be rated as for intervertebral disc syndrome, arguing that the March 1994 VA examination found intervertebral disc syndrome. The brief states the claim at issue as entitlement to a compensable rating for lumbosacral strain, notwithstanding that the rating was increased to 20 percent by the April 1994 rating decision. The brief appears to challenge only the selection of diagnostic codes; however, the Statement of Accredited Representative in Appealed Case of December 1994 argues for a 40 percent rating for lumbosacral strain. Accordingly, the case is REMANDED for the following action: 1. Schedule the appellant for VA orthopedic and neurologic examinations, each with any indicated tests. The orthopedic examination is to determine whether the appellant has objectively verifiable pain associated with his service-connected residuals of C-6 fracture, to record the ranges of motion of the cervical spine in degrees, and to clarify whether the appellant has a lumbosacral intervertebral disc syndrome. The orthopedic examiner should inquire and state explicitly whether the appellant claims or denies pain in the cervical spine or neck and should report explicitly whether there are objective indicia of pain consistent with any assertion by the appellant. The neurological examination is to determine whether the appellant has headaches caused by or referred from the cervical spine. Clinical interview for evaluation of headaches should include a prior medical and family history as to headaches, description of any circumstances that precipitate headaches, time of day of onset, anatomical location of pain, character (e.g., sharp, dull, throbbing), duration , frequency, severity, effective therapies, and any other facts clinically significant to diagnosis and evaluation. Provide the claims folder to each examiner prior to examination. The orthopedic examination should precede the neurologic examination, if practicable. Associate the reports with the claims folder. 2. Readjudicate all claims: The claim of entitlement to service connection for headaches specifically as proximately due to or as a result of service-connected residuals of the C-6 vertebra; the claims for increased ratings to include determining the most appropriate diagnostic code(s) for application. Provide the appellant and his representative with a comprehensive supplemental statement of the case. Following completion of the above actions, the case should be returned to the Board for further appellate consideration, as appropriate. No action is required of the appellant until he receives further notice. This REMAND is to develop evidence and to ensure the appellant is afforded due process of law. Further appellate review is deferred pending completion of the dictates of this order. The Board intimates no opinion as to the final outcome warranted in this case. KENNETH R. ANDREWS, JR. 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).