Citation Nr: 0001753 Decision Date: 01/21/00 Archive Date: 01/28/00 DOCKET NO. 98-19 721A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Determination of initial disability evaluation for service-connected post-traumatic stress disorder (PTSD), currently evaluated as 30 percent disabling. 2. Entitlement to service connection for ulcers secondary to PTSD. REPRESENTATION Appellant represented by: Marine Corps League WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD B. N. Booher, Associate Counsel INTRODUCTION The veteran had active service from July 1967 to June 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 1998 rating decision of the Department of Veterans' Affairs (VA) Regional Office in Louisville, Kentucky (RO), which denied the benefits sought on appeal. The Board initially notes that in a statement dated July 1998, the veteran appears to have rasied a claim for service connection for hearing loss and/or tinnitus. This claim has not been prepared for appellate review and is not currently pending before the Board. Accordingly, this claim is referred to the RO for clarification and further consideration. FINDINGS OF FACT 1. The veteran's PTSD is manifested by sleep disturbance, nightmares, flashbacks, panic attacks occurring twice a week, anxiety attacks, irritability, hyperstartle responses, hypervigilence, memory loss and depression. 2. No competent evidence has been presented that would tend to indicate that the veteran's ulcers are proximately due to, or the result of a service connected disability. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 30 percent for PTSD have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.1, 4.3, 4.7 (1999), 4.125-4.132, Diagnostic Code 9411 (1999). 2. The veteran's claim of entitlement to service connection for ulcers secondary to PTSD is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Entitlement to an initial disability evaluation in excess of 30 percent for PTSD The veteran alleges that the evaluation initially assigned to his PTSD should be increased to reflect more accurately the severity of his symptomatology. By rating decision dated June 1998, the RO granted service connection and found the veteran's PTSD to be 30 percent disabling effective from July 29, 1997. As the veteran is disputing the initially assigned disability evaluation, the Board is to consider the entire period of the veteran's disability in order to provide for the possibility of staged ratings. Fenderson v. West, 12 Vet. App. 119 (1999). The veteran's allegation that he is entitled to an increased disability evaluation is sufficient to establish a well- grounded claim for a higher evaluation under 38 U.S.C.A. § 5107(a) (West 1991). The Board is also satisfied that the VA has fulfilled its duty to assist the veteran by obtaining and fully developing all relevant evidence necessary for the equitable disposition of this claim. Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10 (1999). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. In the present case, the RO evaluated the veteran's PTSD under Diagnostic Code 9411. Under DC 9411, a 30 percent evaluation is warranted with the presence of occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). A 50 percent evaluation is applicable where there is evidence of occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent evaluation is assignable with evidence of occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); inability to establish and maintain effective relationships. Finally, a 100 percent evaluation is appropriate where there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Service personnel records reveal that the veteran was awarded a National Defense Service Medal, a Vietnam Campaign Medal, an Aircraft Crewman Badge, a Vietnam Service Medal, an Air Medal and a Sharp Shooter M-14. During service the veteran was a door gunner on a Huey helicopter. The veteran has indicated that while serving in Vietnam he was involved in a helicopter crash while under hostile fire. A July 29, 1997 VA outpatient treatment record reflects that the veteran underwent a psychological evaluation due to complaints of sleep disturbance, anxiety, nightmares, and flashbacks associated with his service in Vietnam. The VA physician indicated that panic attacks, PTSD and alcohol abuse would need to be ruled out, and the veteran was diagnosed with an adjustment disorder. In October 1997, the veteran filed a claim for service connection for PTSD indicating that he was experiencing severe nightmares, insomnia, anxiety attacks, panic attacks, crying spells, startle responses, palpitations, ulcers, and constant thoughts of death and dying in a burning helicopter crash. An October 1997 treatment record shows that an adjustment disorder would need to be ruled out and the veteran was given a provisional diagnosis of PTSD. The provisional diagnosis was based on the veteran's complaints of having difficulty thinking, experiencing nightmares, cold sweats, startle responses, anxiety and irritability. The veteran was assigned a GAF score of 55. A November 1997 treatment record shows that the veteran reported that he thought his symptoms were stable, but he continued to experience difficulty sleeping. In January 1998, the veteran was afforded a VA examination. The examination report indicates that the veteran was employed, working on an intermittent basis installing vinyl siding. At the time of the examination, the veteran was taking Nefazodone for his psychiatric symptoms. The veteran reported that he was experiencing nightmares, sleep disturbance, startle reactions, panic attacks, memory problems and obsessive thoughts. He also reported being depressed, having ulcers and being uncomfortable with any stimuli associated with war. The veteran indicated that he had suicidal thoughts right after his discharge from service, but denied current suicidal or homicidal thoughts. The veteran was diagnosed with Axis I: PTSD, moderate; Axis II: not relevant; Axis III: post traumatic arthritis and postoperative knee injury by history, with a scar on his knee; Axis IV: current stressors are his continuing PTSD reaction and his knee difficulty; Axis V: GAF 40-45 now and over the past year. Treatment records dated March 1998 to April 1998 show that the veteran continued to experience nightmares and panic attacks. The veteran also attended group sessions to learn to manage his PTSD symptomatology. In May 1998, the VA examiner prepared an addendum to the January 1998 VA examination report. The addendum indicates that the veteran continued to attend PTSD group sessions and that he continued to experience nightmares, hypervigilence syndrome, irritability, sleep disturbance, depression and exaggerated startle responses. It was also noted that the veteran had ulcers. However, the veteran stated that his treatment with the VAMC had helped to mitigate his symptomatology. At the time of the examination, the veteran was working 25 to 30 hours per week and the veteran stated that his marriage was going well. The veteran reported that he and his wife did not socialize very much and that he only had one friend, who was one of his coworkers. The veteran was described as having limited general information. The VA examiner opined that the veteran had moderate PTSD and assigned a GAF of 45-50. During an April 1999 hearing held before the RO, the veteran testified that he received treatment for his PTSD symptomatology on an as needed basis and that he continued to be treated with Paxil and Trazodone. The veteran indicated that he still suffered from sleep disturbance, panic attacks twice a week, anxiety attacks, memory loss, nightmares, hallucinations, difficulty concentrating, nervousness, flashbacks, increased startle responses to loud noises and anger. He further testified that he avoids any stimuli associated with war and he denied suicide ideation. At the time of the hearing, the veteran was unemployed. He testified that he was unable to work due to his knee and back disabilities. He indicated that his PTSD did not prevent him from working. The veteran was afforded another VA examination in May 1999. The examination report reflects that the veteran was working on a part-time basis installing vinyl siding, but his ability to work had been limited due to his knee and back disabilities. The veteran reported continuing difficulty with hyper mood, nervousness, sleep difficulty, restlessness, irritability, hyperstartle responses and hypervigilence. The veteran denied recent suicidal and homicidal ideations as well as auditory hallucinations and paranoia. The veteran's thoughts were described as goal oriented and his judgment and insight were intact. The veteran's affect was bright until he discussed conversations that he had had with his son regarding Vietnam, at which time the veteran became tearful. The veteran was diagnosed with Axis I: PTSD, panic disorder and history of alcohol dependence; Axis II: none apparent; Axis III: knee condition and Axis IV: psychosocial and environmental stressors are mild based on limited social support. The veteran was assigned a GAF of 65-70. In conjunction with the May 1999 examination, additional psychological testing was performed and the results of the same were documented in a separate report. The tests administered included a clinical interview, psychosocial questionnaire, MMPI and expressive drawings and the examiner conducted a thorough review of the veteran's existing records. The examiner concluded that the veteran is a person with PTSD who is struggling to achieve and maintain the semblance of a normal family life. It was further indicated that the veteran deals with significant symptomatology on a daily basis, but that the veteran has made efforts to acquire more effective coping strategies and his work had helped him to gain some control over intrusive thoughts. The veteran was diagnosed with Axis I: PTSD and alcohol dependence secondary to PTSD in sustained full remission; Axis II: none; Axis III: chronic pain from knee and back, bilateral hearing loss, gastric disorder; Axis IV: problems related to social environment, i.e., difficulty relating in a meaningful manner to people outside of his immediate family and Axis V: GAF of 50. The evidence of record establishes that the veteran's PTSD is manifested by sleep disturbance, nightmares, flashbacks, panic attacks occurring twice a week, anxiety attacks, irritability, hyperstartle responses, hypervigilence, memory loss and depression. The veteran continues to be employable and it has been indicated that his work helps him to mitigate his intrusive thought symptomatology. Additionally, the evidence of record shows that the veteran has a good marriage and has established a friendship with one of his coworkers. Further, the veteran has been described as having goal oriented thoughts and it has been indicated that his judgment and insight are intact. In May 1999 the veteran was assigned two different GAF scores. The first score assigned was 65-70. According to Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV), which the VA has adopted at 38 C.F.R. §§ 4.125, 4.130, such a score represents some mild symptoms (e.g., depressed mood and mild insomnia) OR some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, has some meaningful interpersonal relationships. After the veteran was afforded additional psychological testing in May 1999, he was assigned a second GAF score of 50. This score is indicative of serious symptoms (e.g. suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). The Board recognizes that the veteran's disability may require re-evaluation in accordance with changes in his condition. It is thus essential, in determining the level of current impairment, that the disability be considered in the context of the entire recorded history. 38 C.F.R. § 4.1. Nevertheless, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). After reviewing the foregoing evidence, the Board finds that the veteran's disability picture is more nearly approximated by the criteria set forth for a 30 percent disability evaluation under DC 9411. The veteran has not been shown to suffer from flattened affect, difficulty in understanding complex commands, impaired judgment, or more than moderate difficulty in establishing and maintaining effective work and social relationships. Further, the veteran does not have deficiencies in most areas including work, school, family relations, judgment, thinking, or mood. The veteran is not disoriented and does not experience persistent delusions or hallucinations or engage in grossly inappropriate behavior. Therefore, the Board finds that the RO's initial assignment of 30 percent disability evaluation was appropriate and that the veteran is not entitled to an evaluation in excess of 30 percent. In closing, the Board emphasizes that it does not doubt the sincerity of the veteran in offering his testimony, nor does the Board in any manner doubt that the veteran's PTSD results in significant impairment. However, under the applicable diagnostic criteria, which the Board must consider, the preponderance of the evidence is against entitlement to a rating in excess of 30 percent at this time. It follows that the reasonable doubt provisions of 38 U.S.C.A. § 5107(b) do not otherwise permit a favorable resolution of the appeal. The veteran may always advance a new claim for an increased rating should the severity of the disability increase in the future. II. Entitlement to service connection for ulcers secondary to PTSD The veteran also contends that he is entitled to service connection for ulcers secondary to his service connected PTSD. The VA may pay compensation for "disability resulting from personal injury or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in the active military, naval or air service." 38 U.S.C.A. § 1110 (West 1991). In the present case, the threshold question that must be answered is whether the veteran has presented a well- grounded claim for secondary service connection. A well-grounded claim is a plausible claim, which is meritorious on its own or capable of substantiation. In this regard, the veteran has "the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded." 38 U.S.C.A. § 5107(a) (West 1991); Grivois v. Brown, 6 Vet. App. 136, 140 (1994); Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). If the evidence presented by the veteran fails to meet this threshold level of sufficiency, no further legal analysis need be made as to the merits of the claim. See Boeck v. Brown, 6 Vet. App. 14, 17 (1993). For a claim to be well grounded, there must be (1) a medical diagnosis of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in-service disease or injury and the current disability. Where the determinative issue involves medical causation, competent medical evidence to the effect that the claim is plausible is required. See Epps v. Gober, 126 F.3d 1464, 1468 (Fed. Cir. 1997). In addition, service connection may be established on a secondary basis for a disability, which is proximately due to, or the result of a service-connected disease or injury. See 38 C.F.R. § 3.3.10(a) (1999). Any additional disability resulting from the aggravation of a nonservice-connected condition is also compensable under § 3.310(a). See Allen v. Brown, 7 Vet. App. 429, 448 (1995). However, temporary flare-ups without evidence of a worsening of the underlying condition, does not constitute aggravation and does not warrant a grant of service connection. Hunt v. Derwinski, 1 Vet. App. 292, 296-97 (1991). The veteran's service medical records are negative for complaints of or a diagnosis of ulcers. Post-service VA treatment records show that the veteran sought treatment for nausea and vomiting in January 1986. The veteran reported that he had a history of ulcers and he was diagnosed with "probable ulcers." An upper GI revealed a hiatal hernia with gastroesophageal reflux, and deformed bulb consistent with old peptic ulcer disease. The veteran continued to receive treatment for peptic ulcer disease and stomach discomfort through December 1997. A November 1998 statement from Jeffrey R. Riney, M.D. with the Summit Medical Group reflects that Dr. Riney advised the veteran that stress can aggravate ulcers. During the April 1999 hearing held before the RO, the veteran testified that he was diagnosed with ulcers approximately one year after his discharge from service. The veteran also testified that he was diagnosed with and treated for ulcers in 1972. The veteran testified that he currently has problems with ulcers and that he takes medication for the same. There is no evidence of record which reflects that the veteran was treated for or diagnosed with ulcers within one year of his discharge from service. In May 1999, the veteran was afforded a VA examination. The veteran advised the VA examiner that he was diagnosed with ulcers and a hiatal hernia within eight months of his discharge from service. The veteran reported that he has episodes of vomiting and diarrhea and sensations of knots in his abdomen. The veteran indicated that he has epigastric pain and diffuse abdominal pain when his stress level is increased. The examiner indicated that ultimately it may be necessary to perform upper endoscopy to diagnose the veteran's upper gastrointestinal pathology. The examiner concluded that the veteran had a history of hiatal hernia and upper gastrointestinal ulcers and the veteran has PTSD. The examiner indicated that exacerbations of abdominal pain from ulcers appear to be secondary to stress from PTSD. The examiner diagnosed the veteran with hiatal hernia, upper gastrointestinal ulcers by history and PTSD. The evidence submitted by the veteran shows that stress can aggravate ulcers and that the veteran has experienced exacerbations of abdominal pain from ulcers which appear to be secondary to stress from PTSD. This evidence does not establish that the veteran currently has an ulcer disorder caused by PTSD, or that he suffers from a chronic diagnosable ulcer disorder. The evidence shows that the veteran has experienced exacerbations of abdominal pain, which does not constitute a permanent aggravation and does not warrant an award of service connection. While the veteran believes that his ulcers are the result of his service-connected PTSD, the veteran, as a lay person is not competent to offer an opinion that requires medical expertise, such as the cause or etiology of his ulcer disorder. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). In the absence of medical evidence of a nexus or relationship between the veteran's ulcers and a service- connected disability, the veteran has not submitted a well- grounded claim and his claim must be denied on this basis. The Board views this discussion as sufficient to inform the veteran of the elements and evidence necessary to complete his application for secondary service connection for ulcers. To succeed with a secondary service connection claim for ulcers, the veteran needs to submit competent medical evidence supported by an accurate medical history that his ulcers are causally or etiologically related to a service- connected disability in order to establish a well-grounded claim. ORDER 1. Entitlement to an initial evaluation in excess of 30 percent for PTSD is denied. 2. Entitlement to service connection for ulcers secondary to PTSD is denied. JOHN R. PAGANO Acting Member, Board of Veterans' Appeals