BVA9502992 DOCKET NO. 92-06 491 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUES 1. Entitlement to service connection for arteriosclerotic heart disease. 2. Entitlement to an increased rating for post-traumatic stress disorder, currently evaluated as 70 percent disabling. REPRESENTATION Appellant represented by: Military Order of the Purple Heart WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Milo H. Hawley, Counsel INTRODUCTION The veteran had verified active service from December 1940 to January 1947 and from October 1948 to February 1951. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 1991 rating decision by the Department of Veterans Affairs (VA) Regional Office in Albuquerque, New Mexico (RO), which denied service connection for a heart disability and held that an evaluation greater than 50 percent for post- traumatic stress disorder was not warranted. In December 1993 the Board remanded the appeal for additional development and for the RO to consider the veteran's claim that there was clear and unmistakable error in the April 1981 rating decision which terminated individual unemployability benefits. By rating decision in August 1994 the RO granted a 70 percent evaluation for post-traumatic stress disorder from February 1, 1994, and held that there was no clear and unmistakable error in the April 1981 rating decision. The appeal was recertified to the Board and docketed here in November 1994. In December 1994 the veteran submitted a statement which indicates that he continues to believe that there was clear and unmistakable error in the April 1981 rating decision. The Board construes this to be a notice of disagreement with the August 1994 rating action holding that there was no clear and unmistakable error in the April 1981 decision. The issue of whether there was clear and unmistakable error in the April 1981 rating action is referred to the RO for further development. CONTENTIONS OF APPELLANT ON APPEAL It is contended that the veteran has developed a cardiovascular disorder secondary to his post-traumatic stress disorder. It is asserted that the veteran's post-traumatic stress disorder is more disabling than currently evaluated. It is further contended that the veteran is prevented from obtaining and retaining employment as a result of his post-traumatic stress disorder. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that, with respect to the issue of service connection for arteriosclerotic heart disease, the veteran has not met the initial burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded, and with respect to an increased rating for post- traumatic stress disorder, the record supports the assignment of an increased rating of 100 percent. FINDINGS OF FACT 1. With respect to the increased rating, all relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. A cardiovascular disorder was not demonstrated during active service or within one year following final service discharge, and a relationship between arteriosclerotic heart disease and a service-connected disability, including post-traumatic stress disorder, is not demonstrated. 3. Post-traumatic stress disorder is manifested by nightmares, flashbacks, difficulty falling asleep, hyperstartle response, blocking with regard to traumatic events, hypervigilance, survival guilt, anger, and rage, which have severely reduced the veterans reliability, efficiency, and flexibility. He receives ongoing mental health care and medication, and is unemployable as a result of this disability. CONCLUSIONS OF LAW 1. With respect to service connection for arteriosclerotic heart disease, the veteran has not submitted evidence of a well- grounded claim, and there is no matter before the Board for review. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107, 7104, 7105, 7108 (West 1991); 38 C.F.R. §§ 3.307, 3.309, 3.310(a) (1993). 2. An evaluation of 100 percent for post-traumatic stress disorder is warranted. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 4.16(c), Part 4, Code 9411 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Arteriosclerotic Heart Disease The threshold question to be answered with respect to this issue is whether the veteran has presented evidence of a well-grounded claim; that is, a claim which is plausible. If he has not presented a well-grounded claim, his appeal must fail and there is no duty to assist him further in the development of that claim because such additional development would be futile. 38 U.S.C.A. § 5107. As will be explained below, the Board finds that his claim for service connection for arteriosclerotic heart disease is not well grounded. The primary contention is that the veteran has developed a cardiovascular disability secondary to his service-connected post-traumatic stress disorder. It is not contended, and the evidence does not show, that he developed a cardiovascular disorder during his active service. Indeed, service medical records are silent for complaint, finding, or treatment of any cardiovascular disorder, including arteriosclerotic heart disease. Service connection is in effect for post-traumatic stress disorder, currently evaluated as 70 percent disabling, and residuals of a fracture of the right foot, evaluated as noncompensably disabling. Neither VA outpatient treatment records nor the reports of VA psychiatric examinations, nor VA medical records relating to the veteran's hospitalization in 1990 for coronary artery bypass grafting or in 1994 for post-traumatic stress disorder attribute the veteran's arteriosclerotic heart disease, or any cardiovascular disorder, to his service-connected disabilities, including post-traumatic stress disorder. The report of the January 1994 VA post-traumatic stress disorder examination states that the veteran's heart disease is severely exacerbated by post- traumatic stress disorder. Medical records relating to the veteran's period of hospitalization from December 1993 to January 1994 state that the veteran's cardiac symptoms were aggravated by post-traumatic stress disorder. However, neither of these medical opinions reflect that post-traumatic stress disorder caused the veteran's arteriosclerotic heart disease, or any cardiovascular disorder. The only evidence of record which implicates the veteran's post-traumatic stress disorder as the cause of his cardiovascular disorder is the veteran's own statements. In Espiritu v. Derwinski, 2 Vet.App. 492 (1992), the United States Court of Veterans Appeals held that lay persons were not competent to make medical diagnoses. Therefore, while the veteran could report symptoms, his opinion, with respect to the cause of his arteriosclerotic heart disease, or any cardiovascular disorder, is not probative. Causative factors of a disease are a medical question and only a physician's opinion would be competent evidence. Grottveit v. Brown, 5 Vet.App. 91 (1993). As the veteran has failed to submit medical evidence showing a causative relationship between any currently manifested cardiovascular disorder, including arteriosclerotic heart disease, and his service-connected disabilities, or that a cardiovascular disorder was initially manifested during active service directly or presumptively, a claim for service connection for a cardiovascular disorder, including arteriosclerotic heart disease, is not well grounded. Grivois v. Brown, 6 Vet.App. 136 (1994). Since he has not met the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that his claim is well grounded, there is no further duty to assist him in the development of that claim. Tirpak v. Derwinski, 2 Vet.App. 609 (1992). Since the claim is not well grounded, the Board does not have jurisdiction to adjudicate it and it must, accordingly, be dismissed. Grottveit; Boeck v. Brown, 6 Vet.App. 14 (1993). II. Post-Traumatic Stress Disorder The veteran's claim, with respect to this issue, is "well grounded" within the meaning of 38 U.S.C.A. § 5107. We are satisfied that all relevant facts have been properly developed and that no further assistance is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107. Service medical records reflect that the veteran was treated for hysteria, amnesia, and anxiety due to combat in 1944. The December 1950 report of a service medical board indicates that the veteran had a chronic, severe anxiety reaction with moderate impairment of social and industrial adaptability. A physical evaluation board, in December 1950, found that the veteran was incapacitated incident to service. The veteran was discharged from service due to disability in February 1951. A July 1965 VA hospital discharge summary states that the veteran reported that since his discharge in 1951 he had had intermittent attacks of anxiety. On mental status examination he was oriented in all three spheres. He had good insight and response to proverbs. The diagnosis was chronic anxiety reaction. A February 1966 rating decision granted a 50 percent evaluation for mixed psychoneurosis from September 27, 1965. The report of an August 1968 VA psychiatric examination states that on mental status examination the veteran's speech was relevant and coherent with no evidence of a thinking disorder. The examiner summarized that the veteran appeared to have chronic, recurrent attacks of anxiety. He noted that occasionally the veteran's judgment became impaired which could lead to self-injury and distortions of perception. A September 1968 rating decision granted a 70 percent evaluation for anxiety reaction with paranoid personality and found that the veteran was individually unemployable from January 5, 1968. The report of a February 1981 VA neuropsychiatric examination states that on mental status examination the veteran was guarded and somewhat hostile. His mood was slightly depressed and he appeared distant and detached. He was oriented to time and place but appeared only vaguely in touch with himself. Cognitive functions were above average and his judgment and reasoning were intact. The impression included post-traumatic stress disorder, chronic, severe. It was noted that this was previously diagnosed as anxiety reaction with paranoid features. An April 1981 rating decision continued the 70 percent evaluation but terminated entitlement to individual unemployability from August 1, 1981. The report of a September 1983 VA neuropsychiatric examination states that on mental status examination the veteran appeared silent, withdrawn, depressed, and had a somewhat disgusted attitude. He avoided eye contact. He was oriented to time, place, and person. There was no impairment in his memory or concentration but his cognitive functions were slowed. His judgment and reasoning were intact. The diagnoses included post- traumatic stress disorder, chronic. A November 1983 rating decision reduced the evaluation for the veteran's post-traumatic stress disorder from 70 percent to 50 percent from June 10, 1983. That evaluation remained in effect until the current appeal and the August 1994 rating decision which assigned a 70 percent evaluation. A June 1992 letter signed by a VA nurse and physician indicates that it was written at the request of the veteran. It discloses that the person signing the letter had been working with the veteran since his referral to the post-traumatic stress disorder program in December 1990. It indicates that, because of the veteran's problems in establishing and/or maintaining interpersonal relationships, managing his anger, allowing himself to have feelings, being in groups, trouble sleeping, and refraining from thinking of traumatic events, he had been unable to enter a post-traumatic stress program on a full-time basis. The stated problems would continue to prevent him from being able to obtain or maintain employment. The report of a January 1994 VA post-traumatic stress disorder examination states that the veteran complained of recurrent nightmares and flashbacks. He also reported intrusive thoughts about his World War II experiences. He was taking psychotropic medication. Mental status examination showed that the veteran had some psychomotor retardation and decreased eye contact. He had frequent nightmares, particularly of Normandy. He reported difficulty falling asleep, but medication did help. He described his mood as not happy and reported decreased energy and an extreme sense of helplessness. He reported a hyperstartle response and blocking when talking about traumatic events. The diagnoses included post-traumatic stress disorder, severe, with two previous episodes of fugue. Axis V findings were reported as 30, an apparent reference to Global Assessment of Function, and it was noted that the veteran had an extremely isolated lifestyle that interfered with a good functioning life. The examiner stated that the veteran's post-traumatic stress disorder symptoms had apparently become worse over the previous several years. A January 1994 VA hospital discharge summary, relating to a period of hospitalization from December 1993 to January 1994, states that the veteran had a recent hospitalization for post- traumatic stress disorder in the fall of 1993. He had continued with weekly meetings after that time. The discharge diagnoses included post-traumatic stress disorder. In reaching its decision, the Board has considered the complete history of the disability in question, as well as the current clinical manifestations and the effect the disability may have on the earning capacity of the veteran. 38 C.F.R. §§ 4.1, 4.2 (1993). The record indicates that the veteran's only compensable service-connected disability is post-traumatic stress disorder. That disability has been assigned a 70 percent evaluation. While the veteran does have other severe nonservice-connected disabilities, the most recent VA hospital records indicated significant symptomatology associated with post-traumatic stress disorder. In light of this evidence, the symptomatology identified with post-traumatic stress disorder during the January 1994 examination, and the opinion of the VA physician and nurse stated in the June 1992 letter, and in resolving doubt in the veteran's behalf, the Board finds that the veteran's service- connected post-traumatic stress disorder has rendered him unemployable and, therefore, a 100 percent schedular evaluation is for assignment. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. § 4.16(c). ORDER The claim for service connection for arteriosclerotic heart disease is dismissed. A 100 percent schedular evaluation for post-traumatic stress disorder is granted, subject to laws and regulations governing the payment of monetary benefits. E. W. SEERY 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. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.