Citation Nr: 0423505 Decision Date: 08/25/04 Archive Date: 09/01/04 DOCKET NO. 97-27 915 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUES 1. Entitlement to an evaluation in excess of 10 percent for spina bifida occulta at S-1, with low back strain. 2. Entitlement to a total disability rating for compensation purposes on the basis of individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Henriquez, Counsel INTRODUCTION The veteran's record of service (DD-214) shows he has certified service from April 1979 to December 1984, with prior active service of two years, two months, and twenty- three days. The current appeal came before the Board of Veterans' Appeals (Board) from a March 1996 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in No. Little Rock, Arkansas. The RO denied entitlement to an evaluation in excess of 10 percent for spina bifida occulta S-1 for with low back strain, and a TDIU. The veteran presented testimony before a Hearing Officer at the RO in November 1997, and before the undersigned Veterans Law Judge at the RO in October 1999. Transcripts of the hearings have been associated with the claims file. In February 2000 and June 2003, the Board remanded the claims to the RO for further development and adjudicative action. In February 2004 the RO most recently affirmed the determinations previously entered. The case has been returned to the Board for further appellate review. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify you if further action is required on your part. REMAND This claim must be afforded expeditious treatment by the Veterans Benefits Administration (VBA) AMC. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims (CAVC) for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans Benefits Act of 2003, Pub. L. No. 108-183, § 707(a), (b), 117 Stat. 2651 (2003) (codified at 38 U.S.C. §§ 5109B, 7112). The CAVC has held that section 5103(a), as amended by the Veterans Claims Assistance Act of 2000 (VCAA) and § 3.159(b), as recently amended, require VA to inform a claimant of which evidence VA will provide and which evidence claimant is to provide, and remanding where VA failed to do so. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); see also 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 202); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2002). The RO issued a VCAA notice letter to the veteran in August 2003 which is compliant with Quartuccio, supra. The veteran is seeking an increased evaluation for his service-connected spina bifida occulta, currently evaluated as 10 percent disabling, and a TDIU. Service connection is also in effect for chronic depression, evaluated as 30 percent disabling. The combined schedular evaluation is 40 percent. In the February 2000 remand, the Board noted that the veteran's representative had raised the issue of service connection for additional disability of the low back. There was conflicting medical evidence as to whether any additional disorders of the lumbar spine were in fact related to the veteran's period of service. The Board found the issue of service connection for additional disability of the lumbar spine was inextricably intertwined with the issues of entitlement to an increased evaluation of the service- connected disability of the spine rated as spina bifida occulta at S-1 with low back strain, and a TDIU. Accordingly, the Board requested that the veteran undergo a VA examination of the spine to determine the current severity of the veteran's spina bifida as well as the nature and etiology of any other disabilities of the spine. A VA psychiatric examination was also requested. The veteran underwent a VA orthopedic examination in July 2001, however, the examination was not completed. Current evaluation and diagnosis of the service-connected spina bifida was deferred pending a magnetic resonance imaging (MRI) and x-ray of the lumbosacral spine. The examiner reported that the veteran could not at the time undergo the MRI and x-ray of the lumbosacral spine because his father had terminal cancer and would out of town until the crisis was over. For the same reason the veteran could not undergo the VA psychiatric examination. The veteran was advised to notify the RO as to when he would be available to come back for re-evaluation and further testing. A computer printout dated in July 2002 indicates that the veteran failed to report for scheduled VA orthopedic and psychiatric examinations. The letter notifying the veteran of the examinations had not been returned. In light of the veteran's special circumstances with regard to his father's terminal illness, the Board finds that the RO should once again schedule the veteran for VA orthopedic and psychiatric examinations. Given that the issue of entitlement to an increased evaluation for service-connected spina bifida occulta at S-1 with low back strain is subject to remand, a decision on the claim of entitlement to a TDIU must be deferred. The CAVC has stated that two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The Board observes that additional due process requirements may be applicable as a result of the enactment of the VCAA and its implementing regulations. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002) and 66 Fed. Reg. 45,620 (Aug. 29, 2001) (38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a)). Accordingly, the case is remanded to the VBA AMC for further action as follows: 1. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the VBA AMC. Kutscherousky v. West, 12 Vet. App. 369 (1999). 2. The VBA AMC must review the claims file and ensure that all VCAA notice obligations have been satisfied in accordance with 38 U.S.C.A. §§ 5102, 5103, and 5103A (West 2002), Veterans Benefits Act of 2003, Pub. L. 108-183, § 701, 117 Stat. 2651, ___ (Dec. 16, 2003) (codified at 38 U.S.C.A. § 5103), and any other applicable legal precedent. Such notice should specifically apprise the appellant of the evidence and information necessary to substantiate his claim and inform him whether he or VA bears the burden of producing or obtaining that evidence or information, and of the appropriate time limitation within which to submit any evidence or information. 38 U.S.C.A. § 5103(a) and (b) (West 2002); Quartuccio v. Principi, 16 Vet. App. 183 (2002). 3. The VBA AMC should arrange for VA examinations of the veteran by a board composed of an orthopedic surgeon and a neurologist or other available appropriate medical specialists including on a fee basis if necessary for the purpose of determining the nature, extent of severity, and etiology of his disabilities of the lumbar spine and any relationship between/among them. The claims file and separate copies of this remand must be made available to and reviewed by the examiners prior and pursuant to conduction and completion of the examinations. Each examiner must annotate his/her respective examination report that the claims file and a copy of the remand have indeed been reviewed. Any further indicated special studies should be conducted. The examiners must be requested to express opinions as to whether any disorders of the spine other than the already service-connected spina bifida occulta at S-1 with low back pain is/are related to any injury and/or incident of service. If no such relationship is determined to exist, the examiners must express an opinion as to whether there is any causal/etiological relationship between the service-connected spina bifida occulta at S-1 with low back pain and any other disorders of the spine found present. If no such relationship is determined to be present, the examiners must express an opinion as to whether the service- connected spina bifida occulta at S-1 with low back strain has aggravated any other disorders of the spine found to be present. If such aggravation is determined to be present, the examiners must address the following medical considerations: (1) The baseline manifestations which are due to the effects of any nonservice- connected disorders of the spine found on examination; (2) The increased manifestations which, in the examiners' opinions, are proximately due to service-connected spina bifida occulta at S-1 with low back strain based on medical considerations; and (3) The medical considerations supporting an opinion that increased manifestations of any nonservice-connected disorders of the spine found present are proximately due to the service-connected spina bifida occulta at S-1 with low back strain. The examiners must express an opinion as to which, if any, or if all of the back disorders found on examination have rendered the veteran unable to work. Any opinions expressed by the examiners must be accompanied by a complete rationale. 4. The VBA AMC should arrange for a VA psychiatric examination of the veteran including on a fee basis if necessary to ascertain the current nature and extent of severity of his service-connected chronic depression. The claims file and a separate copy of this remand must be made available to and reviewed by the examiner prior and pursuant to conduction and completion of the examination and the examination. The examiner must annotate the examination report that the claims file was in fact made available for review in conjunction with the examination. Any further indicated special studies must be conducted. The examiner should identify all of the veteran's associated symptomatology in order to determine the impairment caused by chronic depression. If there are other psychiatric disorders found, in addition to chronic depression, the examiner should specify which symptoms are associated with each disorder(s). If certain symptomatology cannot be dissociated from one disorder or another, it should be so indicated. If a psychiatric disorder(s) other than chronic depression is or are found on examination, the examiner should offer an opinion as to whether any such disorder is causally or etiologically related to chronic depression, and, if not so related, whether the veteran's chronic depression has any effect on the severity of any other psychiatric disorder. Following evaluation, the examiner should provide a numerical score on the Global Assessment of Functioning (GAF) Scale provided in the Diagnostic and Statistical Manual for Mental Disorders, in relation to the veteran's impairment from chronic depression. The examiner must include a definition of the numerical GAF score assigned, as it relates to the veteran's occupational and social impairment. If the historical diagnosis of chronic depression is changed following examination, the examiner should state whether the new diagnosis represents progression of the prior diagnosis, correction of an error in the prior diagnosis, or development of a new and separate condition. The examiner must be requested to express an opinion as to whether chronic depression in and of itself, or in association with service-connected disability of the low back has/have rendered the veteran unable to work. Any opinions expressed by the examiner must be accompanied by a complete rationale. 5. Thereafter, the VBA AMC should review the claims file to ensure that all of the foregoing requested development has been completed. In particular, the VBA AMC should review the requested medical examination reports and required medical opinions to ensure that they are responsive to and in complete compliance with the directives of this remand and if they are not, the VBA AMC should implement corrective procedures. The Board errs as a matter of law when it fails to ensure compliance, and further remand will be mandated. Stegall v. West, 11 Vet. App. 268 (1998). 6. After undertaking any development deemed appropriate in addition to that specified above, the VBA AMC should adjudicate the issue of entitlement to service connection for additional disorders of the spine on direct and secondary bases, and readjudicate the issues of entitlement to an increased evaluation for service-connected spina bifida occulata at S-1 with low back strain and a TDIU. If the benefits requested on appeal are not granted to the veteran's satisfaction, the VBA AMC should issue a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations pertinent to the claim currently on appeal. A reasonable period of time for a response should be afforded. Thereafter, the case should be returned to the Board for final appellate review, if in order. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the veteran until he is notified by the VBA AMC; however, the veteran is hereby notified that failure to report for any scheduled VA examination(s) without good cause shown may adversely affect the outcome of his claims of entitlement to an increased evaluation for spina bifida with low back strain and a TDIU, and may result in their denial. 38 C.F.R. § 3.655 (2003). _________________________________________________ RONALD R. BOSCH Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the CAVC. 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) (2003).