Citation Nr: 1036664 Decision Date: 09/28/10 Archive Date: 10/05/10 DOCKET NO. 08-38 166 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial disability rating in excess of 10 percent disabling for a cervical spine disability. 2. Entitlement to an initial disability rating in excess of 10 percent disabling for a lumbar spine disability. 3. Entitlement to an initial disability rating in excess of 10 percent disabling for a depressive disorder and a panic disorder. 4. Entitlement to an initial disability rating for cervical radiculopathy of the upper extremities. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs ATTORNEY FOR THE BOARD D. Whitehead, Associate Counsel INTRODUCTION The Veteran had active service from October 2002 to March 2007. This matter is before the Board of Veterans' Appeals (Board) on appeal from an October 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In his November 2008 Appeal To Board Of Veterans' Appeals (VA Form 9), the Veteran requested a Board hearing at the RO. In July 2009, the Veteran submitted notice to the RO that he no longer wanted a hearing. Therefore, the request for a Board hearing at the RO is deemed withdrawn and the Board will continue with the appeal. See 38 C.F.R. § 20.704(d) (2009). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND Unfortunately, a remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. VA has a duty to assist claimants in obtaining evidence needed to substantiate a claim. 38 U.S.C.A. §§ 5107(a) 5103A (West 2002 & Supp. 2009); 38 C.F.R. § 3.159(c) (2009). Cervical Spine and Lumbar Spine Disabilities Here, the Veteran has asserted that his cervical spine disability and his lumbar spine disability are more severe than reflected by the currently assigned 10 percent disability ratings. Most recently in a July 2010 statement, the Veteran essentially stated that he his cervical spine disability has continued to worsen and he noted that his claim for an increased disability rating has been denied without the benefit of a contemporaneous examination. In this regard the Board notes that the Veteran's cervical spine disability was last evaluated during an August 2007 VA examination. With respect to the lumbar spine disability, the Veteran asserted in his July 2010 statement that the current medical evidence of record does not accurately reflect the severity of his lumbar spine disability. He noted that his last VA examination occurred three years ago, and he asserted that the clinical findings reflected in the most recent August 2007 examination report do not accurately reflect the true range of motion of his lumbar spine. Additionally, the Veteran asserted in a March 2010 statement that his condition has continued to worsen. Due to the passage of time and the Veteran's assertions, the Board finds that additional development is warranted to determine the current level of disability due to the Veteran's service- connected cervical spine and lumbar spine disabilities. As such, VA is required to afford the Veteran a contemporaneous VA examination to assess the current nature, extent, severity and manifestations of the service-connected cervical spine and lumbar spine disabilities. See Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995). Thus, the Board has no discretion and must remand these claims. Depressive Disorder and Panic Disorder The Veteran seeks a disability rating in excess of 10 percent disabling for his service-connected depressive disorder and panic disorder. In his July 2010 statement the Veteran stated that he has received treatment for his condition at a VA medical facility. However, a review of the claims file reveals that the medical records associated with treatment for any psychiatric disorder are currently not of record. The Board notes that these records are relevant to the Veteran's claim for an increased disability rating. Thus, the RO should endeavor to associate with the claims file all of the Veteran's VA medical records relevant to his psychiatric disabilities. Also in the July 2010 statement, the Veteran essentially stated that his psychiatric symptomatology has gotten worse since the last VA examination in August 2007. Specifically, he stated that he regularly has flashbacks of incidents that occurred during his military service and that his practitioners informed him that his symptomatology indicates a diagnosis of PTSD. In light of the fact that the Veteran's most recent VA examination occurred in August 2007 and the Veteran's assertions as to the increased severity of his psychiatric symptomatology, the Board finds that additional development is warranted to determine the current level of disability due to the Veteran's service-connected depressive disorder and panic disorder. As such, VA is required to afford the Veteran a contemporaneous VA examination to assess the current nature, extent, severity and manifestations of the service-connected psychiatric disabilities. See Palczewski, 21 Vet. App. at 181; Snuffer, 10 Vet. App. at 403; see also VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995). Cervical Radiculopathy of the Upper Extremities In regard to the Veteran's claim for an increased disability rating for his cervical radiculopathy of the upper extremities, the record reflects that the Veteran was awarded service connection for this disability in a September 2008 rating decision. The RO assigned a 10 percent disability rating, effective March 30, 2007. In a November 2008 VA Form 9, the Veteran essentially disagreed with the initial assignment of a 10 percent disability rating for his cervical radiculopathy disability; he essentially stated that current medical evidence of record does not accurately reflect the severity of his disability. Insofar as the Veteran's November 2008 VA Form 9 conveyed dissatisfaction with the RO's September 2008 rating decision, the Board finds that his submission constituted a notice of disagreement with the September 2008 rating action. See 38 C.F.R. §§ 20.201. In making this determination, the Board points out that in a recent decision, Ortiz v. Shinseki, 23 Vet. App. 353 (2010), the United States Court of Appeals for Veteran's Claims (Court) found that a statement that constitutes a notice of disagreement merely requires finding terms that can be reasonably construed as a desire for appellate review. Id.. at 358. Here, the Veteran's November 2008 submission as to the lack of sufficient evidence regarding the severity of his cervical radiculopathy can reasonably be construed as a request for appellate review, and as such, the Board finds that he has submitted a notice of disagreement as to this claim. Additionally, the Board finds that the Veteran's November 2008 notice of disagreement was timely filed. See 38 C.F.R. §§ 20.201, 20.300, 20.301(a), 20.302(a). However, it does not appear that the RO has issued a Statement of the Case in response to the Veteran's November 2008 notice of disagreement. In such cases, the Board is required to remand the issue to the RO for issuance of a Statement of the Case. See Manlicon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC shall provide the Veteran and his representative with a Statement of the Case addressing the issue of a compensable disability rating for the Veteran's service- connected cervical radiculopathy of the upper extremities. The Veteran should be notified of the time limit within which an adequate substantive appeal must be filed in order to perfect an appeal of this issue. Thereafter, the issue is to be returned to the Board following appropriate appellate procedures. 2. The RO/AMC shall obtain copies of records pertaining to any relevant VA treatment the Veteran has received since his discharge from active duty for a psychiatric disorder following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the claims file. 3. The RO/AMC shall schedule the Veteran for appropriate VA examination(s) to identify the current levels of functional impairment arising from his service-connected cervical and lumbar spine disabilities. The claims file and a copy of this Remand must be made available to the examiner(s) for review before the examinations. All tests and studies deemed helpful should be conducted in conjunction with the examinations. The examiner is asked to address the following: a) Provide the range of motion of the lumbar and cervical spines (extension, forward flexion, left and right lateral flexion and left and right rotation), expressed in degrees. b) Determine whether the back exhibits weakened movement, excess fatigability, or incoordination attributable to the service- connected back disorders and, if feasible, these determinations should be expressed in terms of the degree of additional range of motion loss due to any weakened movement, excess fatigability, or incoordination. Finally, the examiner should express an opinion on whether pain could significantly limit functional ability during flare-ups or when the back is used repeatedly over a period of time. This determination should also, if feasible, be portrayed in terms of the degree of additional range of motion loss due to pain on use or during flare-ups. c) Identify any associated neurological deformities associated with the service- connected cervical and lumbar spine disabilities, to include any associated bladder or bowel impairment. The severity of each neurological sign and symptom should be reported. d) State whether the Veteran has intervertebral disc syndrome. If so, state whether intervertebral disc syndrome results in incapacitating episodes, and if so, the duration of the episodes over the preceding 12 months should be reported. The examiner should note that for VA purposes an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. The examiner must also indicate the impact the Veteran's cervical and lumbar spine disabilities have on his ability to secure or follow a substantially gainful occupation. A complete rationale for any opinion expressed should be provided. 4. The RO/AMC shall schedule the Veteran for a VA psychiatric examination to determine the extent and severity of his psychiatric disabilities. The claims folder should be made available to and reviewed by the examiner. All indicated tests should be performed. The examiner should report all pertinent findings and estimate the Veteran's Global Assessment of Functional (GAF) Scale score. The examiner is also asked to comment on the impact of the claimed increase in severity of the Veteran's disability, if any, on the his employment and activities of daily life. A complete rationale for any opinion expressed shall be provided. 5. The RO/AMC will then review the Veteran's claims file and ensure that the foregoing development actions have been conducted and completed in full, and that no other notification or development action, in addition to those directed above, is required. If further action is required, it should be undertaken prior to further claims adjudication. 6. After completion of the foregoing and all notice and assistance requirements, the RO/AMC should readjudicate the claims for increased evaluations for the cervical spine, lumbar spine, and psychiatric disabilities. If any determination remains adverse, the Veteran and his representative must be furnished a Supplemental Statement of the Case and be given an opportunity to submit written or other argument in response thereto. Thereafter, if appropriate, the case is to be returned to the Board, following applicable appellate procedure. The Veteran need take no action until he is so informed. He has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The purposes of this remand are to obtain additional information and comply with all due process considerations. No inference should be drawn regarding the final disposition of this claim as a result of this action. This claim must be afforded expeditious treatment. 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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). _________________________________________________ DEMETRIOS G. ORFANOUDIS Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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) (2009).