92 Decision Citation: BVA 92-17712 Y92 BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 DOCKET NO. 90-06 672 ) DATE ) ) ) THE ISSUES 1. Entitlement to a restoration of a 40 percent disability rating for the residuals of lumbosacral strain, currently evaluated as 20 percent disabling. 2. Entitlement to an effective date prior to July 2, 1987 for the 40 percent evaluation for residuals of lumbosacral strain. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD P. B. Werdal, Associate Counsel INTRODUCTION This matter came before the Board of Veterans' Appeals (hereinafter Board) on appeal from a rating decision dated August 27, 1987, from the St. Petersburg, Florida, Regional Office (hereinafter RO) in which the RO granted a 40 percent evaluation to the veteran's residuals, lumbosacral strain, effective July 2, 1987. The veteran served on active duty from January 1969 to June 1973. The veteran expressed his disagreement with the effective date of that rating in a document received September 11, 1987, and a statement of the case was sent to him October 7, 1987. A substantive appeal was received December 23, 1987, and a hearing was scheduled for March 16, 1988. On that date the veteran cancelled the hearing so he could obtain additional evidence. The hearing was not rescheduled, and no further action was taken on that appeal. The RO in an August 31, 1989 rating action reduced the evaluation of the veteran's service-connected residuals, lumbosacral strain from 40 percent to 20 percent effective December 1, 1989. The veteran had service from November 1967 to June 1973. The notice of disagreement was received October 6, 1989. The statement of the case was sent to the veteran October 23, 1989. The substantive appeal was received November 20, 1989. The appeal was received at the Board on April 4, 1990, and was docketed May 25, 1990. The veteran is represented by the Disabled American Veterans, to which the file was referred May 25, 1990. That organization submitted written argument on October 12, 1990, and in a decision dated December 20, 1990, the Board remanded the matter. A supplemental statement of the case was sent to the veteran June 6, 1991. The appeal was again received at the Board on October 1, 1991, and docketed October 7, 1991. The file was referred to the Disabled American Veterans on October 7, 1991, and that organization submitted additional written argument December 9, 1991. REMAND In the remand decision dated December 1990 the Board instructed the RO to develop the service connection claims regarding neck and midback disabilities raised in August 1989. However, to date the RO has not done so. The Board also notes that, in a recent United States Court of Veterans Appeals (hereinafter Court) decision, Harris v. Derwinski, 1 Vet.App. 180 (1991), the Court held that a claim is not ready for appellate review until all inextricably intertwined claims are also ready for appellate review. In that case, the Court held that an increased rating claim regarding a psychiatric disability was not appealable until a service connection claim for a heart condition was developed and adjudicated. In this case, during a routine future examination in April 1988 the VA examiner noted degenerative disc disease. In a decision in June 1988 the RO determined that it was a separate disability from the veteran's service-connected lumbosacral strain, and decided it was not a service-connected disability. However, the veteran was not advised of that decision, but was informed only that the RO had decided not to change the disability rating for his "back strain". The Board believes that the veteran must be informed of the denial and furnished his appellate rights on that issue. Since the veteran was not informed of the denial of service connection for degenerative disc disease, that decision is not final. In a document received by the RO August 24, 1989, the veteran said he had been hospitalized beginning August 2, 1989. Although medical records in the claims folder reflect treatment before that date and after that date, there are no records of treatment on or about August 2, 1989. A VA Form 10-7131, dated August 4, 1989 indicates that he was admitted for hospitalization on August 2, 1989. The Board notes a rating specialist's request dated October 1989 that treatment records regarding the August 2, 1989 admission be obtained, but there is no evidence that the request was acted upon by the RO. The claims folder also contains references to treatment for a psychiatric disability at the VA medical facility in Bay Pines in February and March 1990, but copies of the complete treatment record pertaining to that hospitalization are not yet in the claims folder. The Board also notes that in the February 1991 VA examination the examiner noted that a magnetic resonance imaging might be of some benefit in assessing the cause of the veteran's symptoms. The VA has a duty to assist the veteran during the nonadversarial process of claims adjudication. 38 U.S.C. § 5107(a) (1992); 38 C.F.R. § 3.103(a) (1991). The Court has held that the duty to assist the veteran includes obtaining medical records and adequate VA examinations. Littke v. Derwinski, 1 Vet.App. 90 (1990). The veteran's representation in his written argument appears to be raising the issue of whether new and material evidence has been submitted to reopen the claim for service connection for a nervous disorder including post traumatic stress disorder. In view of Harris, this issue should be considered by the RO. In doing so the RO must review attempts to reopen it using the analysis set out in a recent decision, Manio v. Derwinski, 1 Vet.App. 140 (1991). The two-step analysis set out by the Court in that decision requires the RO first determine whether new and material evidence has been presented, then, if it has been presented, the claim must be evaluated in the light of all evidence, both old and new. An adverse determination regarding either step is appealable. With regard to that claim, the veteran's representative points out that the veteran should be afforded a VA psychiatric examination to assist him in obtaining new and material evidence to reopen his claim of service connection for a nervous condition. Under the circumstances of this case, the Board is of the opinion that additional assistance is required. Therefore, the case is REMANDED for the following action: 1. The RO should inform the veteran of the fact that it determined the degenerative disc disease noted in the examination in 1988 was determined to be a separate disability, and that service connection for that disability was denied. The veteran should then be informed of his procedural and appellate rights regarding that denial. 38 U.S.C. § 7105. 2. The RO should obtain copies of all treatment records reflecting treatment the veteran received at the VA medical facilities in Tampa, Florida, and Bay Pines, Florida, since separation from service. The RO should note that in a statement dated August 14, 1989, the veteran indicated he had been hospitalized since August 2, 1989, at the VA Medical Center in Tampa, and there is a reference to hospitalization in February and March 1990 at the Bay Pines VA Medical Center. Copies of medical records not in the claims folder should be added to the claims folder. 3. The RO should contact the veteran and veteran's representative and obtain the names and locations of correctional facilities where the veteran was incarcerated after separation from service, then obtain copies of the veteran's medical treatment records from those facilities. The dates of incarceration should also be ascertained. 4. The RO should follow the procedures set forth in M21-1, change 475, paragraph 50.45. 5. The veteran should be afforded a special VA psychiatric examination by a board of psychiatrists. The purpose of the examination is to determine what psychiatric disabilities the veteran has. The examiners should note the references in the claims folder to psychiatric disabilities, including post traumatic stress disorder. The examiners should be provided with copies of all records from the claims folder. 6. Following completion of the foregoing, the RO should consider the appellant's claim for service connection for a psychiatric disability in light of the two-step analysis established in Manio v. Derwinski, 1 Vet.App. 140 (U.S.Vet.App. 1991). In applying that analysis, the RO should first determine whether there is new and material evidence to warrant reopening the claim for service connection for a psychiatric disability. If the claim is not reopened the veteran should be notified and furnished his appellate rights. 38 U.S.C. § 7105. If his claim is reopened the RO should determine whether, in light of all the evidence, both old and new, there is a basis for allowing the claim. If the claim is denied then the veteran should be furnished his appellate rights. 38 U.S.C. § 7105. 7. The RO should decide the veteran's claim for service connection for cervical spine and thoracic spine disabilities. If service connection for either or both disabilities are denied he should be furnished his appellate rights. 38 U.S.C. § 7105. 8. The Board notes that in a document received by the RO on April 10, 1990, the veteran asserted that he is unemployable as a result of his psychiatric disability. It is not clear whether the veteran is requesting a total disability rating for compensation based on individual unemployability, or a total disability rating for pension purposes. Therefore, the RO should consider both issues. If either is denied the veteran should be furnished his appellate rights and if the creiteria of 38 U.S.C. § 7105 are fulfilled that issue(s) should be certified to the Board. The purpose of this REMAND is to ensure that the veteran is afforded assistance in developing his claim(s), and no action is required of him until further notice. The Board expresses no opinion, either factual or legal, as to the ultimate determination warranted in this case, pending completion of the requested development. BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 E. M. KRENZER C. D. ROMO 38 U.S.C. § 7102(a)(2)(A) (1992) permits a Board of Veterans' Appeals Section, upon direction of the Chairman of the Board, to proceed with the transaction of business without awaiting assignment of an additional Member to the Section when the Section is composed of fewer than three Members due to absence of a Member, vacancy on the Board or inability of the Member assigned to the Section to serve on the panel. The Chairman has directed that the Section proceed with the transaction of business, including the issuance of decisions, without awaiting the assignment of a third Member. Under 38 U.S.C. § 7252 (1992), 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.