BVA9508440 DOCKET NO. 93-09 466 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to service connection for a nervous condition. 2. Entitlement to an increased rating for the residuals of a torn meniscus of the left knee, currently evaluated as 10 percent disabling. 3. Entitlement to benefits under 38 C.F.R. 4.29 (1994) based on hospitalization from December 13, 1990, to February 21, 1991. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Patrick J. Costello, Associate Counsel INTRODUCTION The veteran had active military service from November 1983 to July 1986. This matter came before the Board of Veterans' Appeals (hereinafter the Board) on appeal from a June 1991 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), in New York, New York, that denied the veteran's claim for entitlement to service connection for a chronic psychiatric disorder. When the veteran returned his VA Form 1-9, Statement on Appeal, in November 1991, he amended his appeal to include the other two issues on the front cover of this decision. REMAND The veteran contends that because of his service-connected disability, he has developed a chronic psychiatric condition. Thus, he requests VA benefits for this condition. Additionally, he avers that his left knee condition is more debilitating that currently rated, and that, as such, he should receive more than a 10 percent rating. Finally, the veteran asks that the RO's decision, which denied Paragraph 29 benefits for hospitalization for a period of greater than twenty-one days be overturned, and a total temporary disability rating be assigned for the period of December 13, 1990, to February 21, 1991. The Secretary has a duty to assist a claimant who has submitted a well-grounded claim. 38 U.S.C.A. § 5107 (West 1991); Butts v. Brown, 5 Vet.App. 532 (1993); Murphy v. Derwinski, 1 Vet.App. 78 (1990); 38 C.F.R. § 3.159 (1993). "The 'duty to assist' is neither optional nor discretionary." Littke v. Derwinski, 1 Vet.App. 80 (1990). The Court has repeatedly held that the duty to assist includes providing a thorough and contemporaneous medical examination, especially where it is necessary to determine the current level of a disability. Schroeder v. Brown, 6 Vet.App. 220 (1994). In this case, we believe that there is a need for a psychiatric evaluation in order to clarify the veteran's current psychiatric disabilities. That is, because the veteran has been diagnosed as suffering from various conditions, including dementia, schizophrenia, bilateral polar disorder, etcetera, and since the medical records imply that these conditions are related to his "physical conditions", further clarification is needed to determine whether any of these conditions are the result of his service-connected left knee disorder. We would further note that the veteran was hospitalized for problems relating to substance abuse and other physical/mental disorders. He was in the hospital for more than two months. Because after every surgery, the veteran underwent some type of rehabilitative physical therapy, it may be that while he was in the hospital from the period of December 13, 1990, through February 21, 1991, he also had physical therapy. Therefore, further documentation is needed concerning all of the treatment incurred by the veteran during his stay. Accordingly, this case is REMANDED to the RO for the following actions: 1. The veteran should be examined by a Board of two psychiatrists who have not previously examined him to determine the nature and severity of his psychiatric disorders. The examination should be conducted in accordance with the VA Physicians Guide for Disability Evaluation Examinations (1985). If the examiners determine that the veteran has any psychiatric disorder , the examiners should determine the relationship of any such disorders among themselves (including etiological origin and secondary causation). and specify which symptoms are associated with each disorder. If certain symptomatology cannot be disassociated from one disorder or the other, it should be so specified. The examiners should be asked to additionally determine whether any of the veteran's psychiatric disorders are related to his service-connected knee disorder. The report of the examination should include a complete rationale for all opinions expressed. All necessary studies or tests including psychological testing and evaluations are to be accomplished. The diagnosis should be in accordance with DSM-IV. The entire claims folder and a copy of this Remand must be made available to and reviewed by the examiners prior to the examination. 2. The RO should obtain and associate with the claims folder all treatment records of the veteran from the Bronx VA Medical Center for the period of December 13, 1990, through February 21, 1991. Of interest are any progress notes, special studies, x-ray films, laboratory tests, and technicians' reports of treatment of the veteran's service-connected left knee condition. If no records exist, it should be so noted in the record on appeal. Following completion of the requested development, the veteran's claim should be readjudicated. If the decision remains unfavorable, he and his representative should be given a supplemental statement of the case and allowed sufficient time for a response. Thereafter, the claim should be returned to the Board for further consideration. No action is required of the veteran until he is contacted by the regional office. The purpose of this REMAND is to ensure due process and to obtain additional clarifying medical evidence. JACK W. BLASINGAME 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) (1994).