Citation Nr: 0003491 Decision Date: 02/10/00 Archive Date: 02/15/00 DOCKET NO. 98-12 532 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to an increased rating for low back strain currently evaluated as 10 percent disabling. 2. Entitlement to service connection for post-traumatic stress disorder (PTSD). WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD James A. Pritchett, Associate Counsel INTRODUCTION The veteran served on active duty from August 1953 to September 1973. This appeal arises from a decision by the Muskogee, Oklahoma, Department of Veterans Affairs (VA) Regional Office (RO). FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. The veteran's claim for service connection for PTSD is not plausible. 3. The service-connected low back disability is manifested by moderate limitation of function due to pain. CONCLUSIONS OF LAW 1. The claim for service connection for PTSD is no a well- grounded claim. 38 U.S.C.A. §§ 1110, 5107(a) (West 1991); 38 C.F.R. § 3.304 (1999). 2. The functional impairment associated with the veteran's low back disability warrants a rating of 240 percent. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5292, 5293, 5295 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Factual Background The veteran's service personnel records indicate that his foreign service did not include a tour of Vietnam. His military occupational specialty was aircraft repairman. He received no medals indicative of combat exposure. The veteran's service medical records are negative for complaints, symptoms or findings regarding PTSD. His retirement examination report noted a history of an acute lumbosacral strain in September 1971 that was treated and that left no complications or sequelae. The same examination was negative for psychopathology. A December 1973 rating decision established service connection for chronic low back sprain, evaluated as noncompensably disabling under Diagnostic Code 5295. In September 1997, the veteran requested an increased rating for the low back disability. A December 1997 VA orthopedic examination report states that the veteran had a L4-5 hemilaminectomy and a L4-5 diskectomy in 1981 and other back surgery in 1983. The surgeries helped for some years but his condition had deteriorated in the last for or five years. He complained of pain on sitting, climbing steps or walking more than 15 minutes. Climbing more than five or six steps causes sharp back pain that radiates into his right leg. He did not have any numbness or weakness in his leg from his back condition. He did have some numbness in his left foot as a result of a left ankle injury. Examination revealed a slight flattening of the normal lumbar lordosis. No paraspinous spasm was present. Point tenderness was noted along the surgical scar and distal to it down into the sacral region. Flexion was to 85 degrees, extension was to 5 degrees, side bending was to 30 degrees left and right, and rotation was to 20 degrees left and right. Straight leg raising was negative. Neurological evaluation revealed that deep tendon reflexes were 2+ and the Babinski sign was absent. Sensations were diminished to pinprick in the left foot. The X-ray examination revealed degenerative changes of the lumbar spine mainly L4-L5 with narrowing of the intervertebral disc spaces between L4-L5 and mainly L5-S1. The examiner's diagnosis was postoperative lumbar disc disease without radiculopathy, with pain causing moderate functional impairment. The report of a VA PTSD examination dated in January 1998 states that the veteran's stressors consisted of hearing radio broadcasts and of the death of a friend in a plane crash. The broadcasts were from Vietnam, as the veteran was stationed in Thailand. One time the announcer stated that there was a $5,000 bounty on the veteran. He described stressful events. He never went to Vietnam. Sometimes service members would fly into Phangrang [sic] to work on planes for extra money. A friend took the veteran's place on one of the flights and died when the plane crashed on the return flight. The examiner noted that the veteran became teary-eyed describing the feelings he had in Vietnam. Following the examination, the impressions were dysthymic disorder and moderate PTSD. The examiner noted that the veteran's psychosocial problems were related to exposure to wartime conditions in Thailand. Relying on the December 1997 examination report, a March 1998 rating decision increased the evaluation for the veteran's back disability to the current 10 percent. During the veteran's personal hearing in August 1998 he testified that he injured his back in January 1960 when a wheel well of an aircraft he was working on started to collapse. He now has a large amount of burning pain that goes down inside his right leg through the calf. It is extremely hard to walk, sit or drive. He has the same symptoms now that he had at the time of the December 1997 orthopedic examination but prior to the examination he had taken several high powered aspirin to take the edge off of his pain. He was also able to sit and relax for 30 to 45 minutes before the examination. However, the symptoms are the same now as then. He had not had any treatment since the December VA examination. He does not understand why the VA does not realize that he has more than a sprain. Regarding PTSD, the veteran testified that immediately upon his assignment to his unit in Thailand he was put to work for about two and a half straight days. The bunk area was rat infested. A propaganda broadcast by a woman they called Hanoi Hanna said that there was a $10,000 bounty on him. He was later told that she had threatened him at other times. The veteran was not allowed to go into Vietnam, so a serviceman nicknamed "Howdy Doody" took his place on a flight into the combat zone. Howdy Doody was killed when the Viet Cong downed the airplane he was on. He does not know Howdy Doody's name or the date of the incident. The veteran testified that he needs the records of the organization he was with or even the correct nomenclature for it to get Howdy Doody's name. Analysis Post-Traumatic Stress Disorder The threshold question that must be resolved with regard to a claim is whether the veteran has presented evidence of a well-grounded claim. See 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). A well-grounded claim is a plausible claim that is meritorious on its own or capable of substantiation. See Murphy, 1 Vet.App. at 81. An allegation of a disorder that is service connected is not sufficient; the veteran must submit evidence in support of a claim that would "justify a belief by a fair and impartial individual that the claim is plausible." See 38 U.S.C.A. § 5107(a); Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992). The quality and quantity of the evidence required to meet this statutory burden of necessity will depend upon the issue presented by the claim. Grottveit v. Brown, 5 Vet.App. 91, 92-93 (1993). Where the determinant issue involves a question of medical diagnosis or medical causation, competent medical evidence to the effect that the claim is plausible or possible is required to establish a well-grounded claim. Grottveit v. Brown, 5 Vet.App. 91, 93 (1993). Lay assertions of medical causation cannot constitute evidence to render a claim well grounded under 38 U.S.C.A. § 5107(a); if no cognizable evidence is submitted to support a claim, the claim cannot be well grounded. Id. A PTSD claim is well grounded where the veteran has "submitted medical evidence of a current disability; lay evidence (presumed to be credible for these purposes) of an in-service stressor, which in a PTSD case is the equivalent of in-service incurrence or aggravation; and medical evidence of a nexus between service and the current PTSD disability". Cohen ( Douglas) v. Brown, 10 Vet.App. 128, 136-37 (1997) Pursuant to the Court's analysis under 38 U.S.C.A. § 1154 (b), the evidence necessary to establish the occurrence of a recognizable stressor during service would vary depending on whether the veteran "engaged in combat with the enemy." See Hayes v. Brown, 5 Vet.App. 60 (1993). This is determined through the receipt of certain recognized military citations or other service department evidence. 38 C.F.R. § 3.304(f). If a determination is made that the veteran was not engaged in combat with the enemy, or that the veteran was engaged in combat with the enemy but that the stressors are not related to such combat, it must be determined whether the claimed stressor is corroborated sufficiently by service records or other sources to establish the occurrence of the claimed stressful events. Moreau v. Brown, 9 Vet.App. 389 (1996), Doran v. Brown, 6 Vet.App. 283, 289 (1994). The Court has stated that if the veteran engaged in combat and the claimed stressor is related to combat, no further development for evidence of a stressor is necessary. Zarycki v. Brown, 6 Vet.App. 91 (1993). The Court has also held that it is the distressing event, rather than the mere presence in a "combat zone" which constitutes a valid stressor for purposes of supporting a diagnosis of PTSD. Zarycki at 99. The veteran stated in the record that he worked on aircraft during his time in Thailand. He has not claimed combat- related stressors. The Board notes that his service personnel records do not reflect any awards or decorations denoting direct combat participation, i.e., a Purple Heart. He did not receive any awards for valor. Consequently, the Board concludes that the veteran was not engaged in combat with the enemy. Since the Board has ascertained that the veteran did not engage in combat with the enemy, it must determine whether the claimed stressors are corroborated sufficiently by service records or other sources to establish the occurrence of the claimed stressful events. However, the Court has held that the regulatory requirement for "credible supporting evidence" means "the appellant's testimony, by itself, cannot, as a matter of law, establish the occurrence of a non-combat stressor." Dizoglio v. Brown, 9 Vet. App. 163 (1996). The veteran's account of his stressors is vague. The stressors are not capable of verification without specific information. The Board notes that there is no corroborating evidence of the claimed stressors and there is no indication that sufficient information will be provided to allow confirmation of any of them. In a well-grounded claim for PTSD, there must be a current, clear medical diagnosis of PTSD. The examiner diagnosed PTSD, attributing it to the war time stressors of being stationed in Thailand; therefore, the first and third elements of a well-grounded PTSD claim have been satisfied. However, the veteran's claimed stressors are not corroborated sufficiently by service records or other sources to establish the occurrence of the claimed stressful events, thus defeating the second element necessary for a well-grounded claim of PTSD. Inasmuch as all of the elements to establish a well-grounded claim of PTSD have not been satisfied, the claim is denied. Increased Rating Where a disability has already been service connected and there is a claim for an increased rating, a mere allegation that the disability has become more severe is sufficient to establish a well-grounded claim. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); Proscelle v. Derwinski, 2 Vet. App 629, 632 (1992). Accordingly, the Board finds that the veteran's claim for an increased rating is well grounded. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.102 (1998). The Board is also satisfied that all relevant facts have been properly and sufficiently developed to address the issue at hand. Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where an increase in an existing disability rating based on established entitlement to compensation is at issue, the present level of disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the veteran, as well as the entire history of the veteran's disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). Initially the Board notes that the only neurological symptom found on examination was attributed to the veteran's non service-connected ankle injury. There is no medical evidence of intervertebral disc syndrome (IDS) with symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to site of diseased disc. Therefore a rating under Code 5293 would not be appropriate. There is no evidence of a fractured vertebra (Code 5285), and no evidence of ankylosis of the whole spine (Code 5286) or the lumbar spine (Code 5289). These diagnostic codes are factually inapplicable in this case. See Butts v. Brown, 5 Vet. App. 532, 539 (1993) (holding that the Board's choice of diagnostic code should be upheld so long as it is supported by explanation and evidence). Limitation of motion of the lumbar spine, slight, warrants a 10 percent evaluation. Moderate limitation of motion is assigned a 20 percent rating. Severe limitation of motion of the lumbar spine warrants a 40 percent evaluation. 38 C.F.R. 4.71, Diagnostic Code 5292 (1999). Lumbosacral strain, severe, manifested by listing of the whole spine to opposite side, positive Goldthwait's sign, marked limitation of forward bending in standing position, loss of lateral motion with osteo-arthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion, warrants a 40 percent evaluation. Lumbosacral strain with muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in standing position, warrants a 20 percent evaluation. With characteristic pain on motion a 10 percent rating is warranted. For lumbosacral strain with slight subjective symptoms only, a noncompensable evaluation is for assignment. Diagnostic Code 5295 (1999). In the present case there is no evidence of muscle spasm necessary for a 20 percent or higher evaluation under Diagnostic Code 5295. However, Diagnostic Code 5292 does provide for a 20 percent evaluation if the limitation of function is moderate. The Board finds that the veteran's current disability is more properly rated under Diagnostic Code 5292. However, there is no medical evidence of the severe limitation of motion necessary for a higher evaluation under 5292. When an evaluation of a disability is based on limitation of motion, the Board must also consider, in conjunction with the otherwise applicable diagnostic code, any additional functional loss the veteran may have sustained by virtue of other factors as described in 38 C.F.R. §§ 4.40 and 4.45. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). See VAOPGCPREC 36-97 (diagnostic code 5293 involves loss of range of motion such that 38 C.F.R. §§ 4.40 and 4.45 should be applied when a disability is rated thereunder). Such factors include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy of disuse. The January 1998 VA examiner noted that pain caused moderate functional impairment of the veteran's lumbosacral spine. This was evidenced by limitation of extension to five degrees, and rotation to 20 degrees left and right. Pain was noted during the January 1998 examination. Although the veteran has had a back injury and surgeries since his service, the VA examiner did not attribute any decrease in the veteran's lumbosacral spine function to his post service injuries or surgery. In this case, while the veteran complained of pain associated with the disability at issue, "a finding of functional loss due to pain must be 'supported by adequate pathology and evidenced by the visible behavior of the claimant. 38 C.F.R. § 4.40." Johnston v. Brown, 10 Vet.App. 80, 85 (1997). While the examiner found that pain caused a moderate limitation of function, the pathology and objective observations of the claimant's behavior do not satisfy the requirements for an evaluation in excess of 20 percent. Thus, applying DeLuca, the Board finds that 38 C.F.R. §§ 4.40, 4.45, and 4.59 do not provide a basis for a rating in excess of 20 percent. Regarding the increased rating issue, all doubt has been resolved in favor of the appellant. 38 U.S.C.A. § 5107. Finally, the Board finds that there is no evidence on which to base on extra-schedular rating under 38 C.F.R. § 3.321(b)(1). Such a rating may be warranted if "the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(b)(1). ORDER A 20 percent evaluation for limitation of motion of the lumbar spine is granted, subject to the law and regulations governing the criteria for award of monetary benefits. Entitlement to service connection for PTSD is denied. RENÉE M. PELLETIER Member, Board of Veterans' Appeals