Citation Nr: 1312708 Decision Date: 04/17/13 Archive Date: 05/02/13 DOCKET NO. 10-22 186 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a disability rating in excess of 20 percent for scoliosis of the thoracolumbar spine. 2. Entitlement to an initial compensable disability rating for major depressive disorder. 3. Entitlement to service connection for an acquired psychiatric disorder, claimed as anxiety secondary to service-connected scoliosis of the thoracolumbar spine. REPRESENTATION Appellant represented by: Kenneth L. Lavan, Attorney ATTORNEY FOR THE BOARD Anthony M. Flamini, Counsel INTRODUCTION The Veteran served on active duty from July 1997 to February 1998. These matters come to the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, dated in May 2008 and August 2009. On her May 2010 VA Form 9, the Veteran requested a hearing before the Board in conjunction with her appeal. However, in November 2012, she did not report for her scheduled hearing. As such, her request for a hearing is deemed withdrawn. 38 C.F.R. § 20.704 (2012). The Veteran's claim for entitlement to service connection for anxiety has been recharacterized as a claim for service connection for an acquired psychiatric disorder, claimed as anxiety. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (finding that a claim for benefits for one psychiatric disability also encompassed benefits based on other psychiatric diagnoses and should be considered to be within the scope of the filed claim). Also of note is that the above-named private attorney was appointed as the Veteran's representative in March 2009. See 38 C.F.R. §§ 14.631(e)(1), (f)(1). However, in correspondence received in October 2011, the attorney notified the Board that he was withdrawing his representation of the Veteran before VA. The Board emphasizes that the RO had certified the Veteran's appeal to the Board in July 2010, prior to receipt of the attorney's letter. The claims file does not contain any documentation that the Veteran has revoked the attorney's authority to act on her behalf, or that she has appointed a new attorney or other representative. As the private attorney did not file a motion to withdraw representation with the Board, nor did he respond to the Board's February 2013 request for such a motion, he is deemed to still be the Veteran's representative, as reflected above. See 38 C.F.R. §§ 14.631(c), 20.608(b). 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 The Veteran seeks entitlement to a disability rating in excess of 20 percent for scoliosis of the thoracolumbar spine. The record reflects that over four years have elapsed since the Veteran was last provided a VA spine examination in January 2009. Although the passage of time alone is not a basis for additional examination, the record suggests that the Veteran's scoliosis symptomatology is worsening with age. For instance, at the time of her November 2007 VA spine examination, there was thoracolumbar flexion to 90 degrees, extension to 30 degrees, lateral flexion to 30 degrees (bilaterally), and lateral rotation to 30 degrees (bilaterally), with no objective evidence of spasm or pain upon active range of motion or following repetitive motion. However, approximately 14 months later, at the time of her January 2009 VA spine examination, the Veteran indicated that the back pain associated with her scoliosis had increased in frequency and intensity. Although thoracolumbar flexion remained the same at 90 degrees, extension decreased to 25 degrees, left lateral flexion decreased to 20 degrees, and right lateral rotation decreased to 25 degrees, with objective evidence of spasm of the thoracic spine as well as pain upon active range of motion and following repetitive motion. Therefore, a new examination is required to determine the current severity of the Veteran's service-connected scoliosis. Green v. Derwinski, 1 Vet. App. 121 (1991); 38 C.F.R. § 3.159. The Veteran also seeks entitlement to an initial compensable rating for depressive disorder. The record reflects that nearly four years have elapsed since the Veteran was last provided a VA mental disorders examination in July 2009. Although the passage of time alone is not a basis for additional examination, the record reflects that the Veteran's psychiatric symptomatology may have worsened since the July 2009 examination. For instance, in correspondence dated in October 2009, a 4-year acquaintance of the Veteran indicated that her psychiatric symptomatology would make it difficult for her to work with groups of people, and that it would be difficult for her to hold down any type of employment as a result. The correspondence further described an incident at the VA Hospital in Miami, Florida, in which the Veteran picked up a chair to hurt someone in response to something that was said to her. These lay descriptions are more severe than the symptomatology described at the time of the July 2009 VA examination, which indicated that the Veteran's only work difficulty involved becoming amotivational when her depression worsened. Therefore, a new examination is required to determine the current severity of the Veteran's service-connected depressive disorder. Green v. Derwinski, 1 Vet. App. 121 (1991); 38 C.F.R. § 3.159. Finally, the Veteran seeks entitlement to service connection for an acquired psychiatric disorder, claimed as anxiety. In both its August 2009 rating decision and April 2010 statement of the case, the RO incorrectly informed the Veteran that "even if service connection for anxiety had been granted, you would not be entitled to separate evaluations for both major depressive disorder and anxiety as they are both mental conditions that are evaluated using the same criteria." The RO continued that, "In order to prevent what is called pyramiding, both conditions would be viewed as one entity, with the appropriate evaluation only being assigned to the dominant condition." The Board observes in this regard that, if a Veteran has separate and distinct manifestations relating to the same injury, he should be compensated under different diagnostic codes. Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225 (1993). The evaluation of the same manifestation under different diagnostic codes is to be avoided. 38 C.F.R. § 4.14 (2012). However, the Veteran may be separately evaluated for an acquired psychiatric disorder other than depressive disorder if the additional disorder exhibits unique symptomatology which can be separated from the service-connected depressive disorder. As such, the claim of entitlement to service connection for an acquired psychiatric disorder, claimed as anxiety, may depend in part on the results of the VA examination being obtained to determine the current level of severity of the Veteran's service-connected depressive disorder. If the examiner finds unique psychiatric symptomatology which can be separated from the service-connected depressive disorder, then the possibility exists that an additional psychiatric disorder might also be service connected. Therefore, this issue is inextricably intertwined with the issue of entitlement to an initial compensable rating for depressive disorder and must also be remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). Accordingly, the case is REMANDED for the following action: 1. Obtain copies of all VA treatment records from the VA Medical Center in Miami, Florida, dated from June 2009 to the present. Associate all available records with the claims file. Document all attempts to secure this evidence in the claims file. If, after making reasonable efforts to obtain named records any records remain unavailable, notify the Veteran of the specific unavailable records, briefly explain the efforts made to obtain those records, and describe any further action to be taken with respect to the claim. Give the Veteran an opportunity to respond. 2. Schedule the Veteran for a VA spine examination to determine the current severity of her service-connected scoliosis of the thoracolumbar spine. The claims file and a copy of this Remand must be provided to and reviewed by the examiner. Any indicated diagnostic tests and studies must be accomplished. As to all information requested below, a complete rationale for all opinions must be provided. The examination report should state whether there is any evidence of favorable or unfavorable ankylosis of the spine, and determine the range of motion of the thoracolumbar spine in degrees. It must also state whether there is weakened movement, excess fatigability, or incoordination attributable to the Veteran's thoracolumbar spine disability, expressed in terms of the degree of additional range of motion loss or favorable or unfavorable ankylosis due to any weakened movement, excess fatigability, or incoordination. Finally, the examiner should indicate whether any pain found in the thoracolumbar spine could significantly limit functional ability during flare-ups or during periods of repeated use, noting the degree of additional range of motion loss or favorable or unfavorable ankylosis due to pain on use or during flare-ups. 3. Schedule the Veteran for a VA examination to determine the current severity of her service-connected depressive disorder. The claims file and a copy of this Remand must be made available to and reviewed by the examiner. The examiner must provide accurate and fully descriptive assessments of all psychiatric symptoms. The examiner must comment upon the frequency or severity of the Veteran's psychiatric symptoms. The examiner must also enter a complete multi-axial evaluation, and assign a Global Assessment of Functioning (GAF) score, together with an explanation of what the score represents in terms of the Veteran's psychological, social, and occupational functioning. The examiner is also asked to determine whether the Veteran suffers from any additional psychiatric disorder, to include anxiety, manifested by unique psychiatric symptomatology that can be separated from the service-connected depressive disorder (if possible). If so, the examiner is asked to opine whether it is at least as likely or not (50 percent probability or more) that any current additional psychiatric disorder (based on unique psychiatric symptomatology that can be separated from the service-connected depressive disorder) is related to active service or any incident of service, or caused or aggravated by any service-connected disability. Aggravation is defined as a permanent worsening beyond the natural progression of the disability. A complete rationale for all opinions must be provided. 4. Notify the Veteran that she must report for any scheduled examination and cooperate in the development of the claim. Failure to report for a VA examination without good cause may result in denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). 5. When the above development has been completed, readjudicate the issues on appeal. If any benefit sought on appeal remains denied, issue a supplemental statement of the case to the Veteran and her attorney. After the Veteran and her attorney have had an adequate opportunity to respond, return the appeal to the Board. The appellant 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). 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. 2012). _________________________________________________ ROBERT C. SCHARNBERGER 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) (2012).