BVA9505832 DOCKET NO. 92-14 324 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to service connection for polysubstance abuse. 2. Entitlement to a temporary total rating during a period of hospitalization from April 25 to July 16, 1991 pursuant to 38 C.F.R. § 4.29 (1994). 3. Entitlement to an increased evaluation for human immunovirus (HIV) infection with a history of hepatitis, currently evaluated as 30 percent disabling. 4. Entitlement to a total rating based on individual unemployability due to service-connected disabilities. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Alice A. Booher, Counsel INTRODUCTION The veteran had active service from March 1980 to November 1987. This appeal was initially taken from the rating actions by the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York in October 1991 and February 1992. The Board of Veterans' Appeals (the Board) remanded the case in January 1993 for development of the evidence including on the issue of entitlement to an increased evaluation for HIV infection then evaluated as 10 percent disabling. The RO, in a rating action in November 1993, increased the veteran's HIV rating to 30 percent effective August 11, 1993; the RO continued the prior denials on the other issues, and the case was returned to the Board. The veteran has been represented throughout his appeal by The American Legion, which has made presentations on his behalf, the most recent of which was in March 1995. CONTENTIONS OF APPELLANT ON APPEAL The veteran has argued that he has been virtually unable to work since service. Concerning his polysubstance abuse, although the veteran has admitted using drugs and alcohol before service, he argues that his use increased in service. Concerning his claim for a temporary total rating during hospital in April to July 1991, the veteran has argued that while he was initially hospitalized for his polysubstance abuse, thereafter he was required to attend the HIV-Support Group and start AZT treatment, both of which he did, thus altering the nature of his basic hospitalization. The veteran's representative argues that pertinent VA vocational, rehabilitation and educational (VR&E) evidence is not in the file. 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 the preponderance of the evidence is against the veteran's claim for service connection for polysubstance abuse, is against his claim for a temporary total rating during a period of hospitalization from April 25 to July 16, 1991 pursuant to 38 C.F.R. § 4.29; is against his claim for an increased evaluation in excess of 30 percent for HIV infection with a history of hepatitis, and is against his claim for a total rating based on individual unemployability due to service-connected disabilities. FINDINGS OF FACT 1. Adequate evidence for an equitable disposition of the issues on appeal is in the file. 2. The veteran's polysubstance abuse pre-existed service and is the result of willful misconduct. 3. VA hospitalization from April to July 1991 was not primarily for service-connected disability; HIV treatment therein was secondary and incidental. 4. Prior to March 24, 1992, the veteran's HIV with history of hepatitis was not manifested by exacerbations of a week or more, greater than 2 or 3 times a week or symptomatology productive of more than moderate impairment of health; in the period from March 24, 1992 to August 1993, the veteran began regularly taking AZT but did not develop recurrent constitutional symptoms, intermittent diarrhea or a T-4 count below 200. 5. Currently, the veteran's HIV infection requires the ongoing use of AZT; his T-4 count has dropped but remains consistently above 200, he has had a reported bout of oral thrush and has multiple complaints of fever, fatigue, shortness of breath, joint pain, etc. with few clinical findings on recent clinical evaluations; on the whole, he has gained rather than lost weight, and there are no manifestations of opportunistic infection or neoplasm. 6. The veteran has not submitted evidence tending to show that his HIV infection disability is unusual with related factors such as requiring frequent hospitalizations or causing frequent time away from employment other than contemplated under schedular criteria. 7. The veteran is not precluded from employment because of his service-connected disability, HIV infection with hepatitis. CONCLUSIONS OF LAW 1. Polysubstance abuse was not incurred in or aggravated in line of duty. 38 U.S.C.A. §§ 105, 1131, 5107 (West 1991); 38 C.F.R. § 3.301 (1994). 2. The criteria for a temporary total rating during a period of hospitalization from April 25 to July 16, 1991 are not met. 38 C.F.R. § 4.29 (1994). 3. The criteria for an increased evaluation for HIV infection are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. Part 4, § 4.7, Diagnostic Code 6352-6350 (1990) and Diagnostic Code 6351 (1994). 4. The criteria for a total rating based on individual unemployability due to service-connected disabilities are not met. 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The case was remanded by the Board in January 1993 for development of the evidence. Since then, additional records have been obtained and the veteran has been re-examined. The veteran's representative has argued that pertinent VR&E records are not in the file; however, a review of the evidence of record shows that while the complete VR&E folder is not of record, excerpts from the folder are in the claims file and it is highly improbable that any part of the VR&E folder not of record would affect the determinations herein. The Board is satisfied that sufficient evidence is in the file to make an equitable disposition of the issues on appeal, and that accordingly, the VA's obligation to assist in the development of the evidence has been satisfied. 38 U.S.C.A. § 5107. Polysubstance Abuse Service connection may be granted for disability as a result of disease or injury incurred in or aggravated during peacetime service. 38 U.S.C.A. §1131. A disability will not be considered to have been incurred or aggravated in the line of duty, if the disability was the result of the veteran's willful misconduct. 38 U.S.C.A. § 105. Primary alcoholism and drug abuse are considered, by regulation, the result of willful misconduct. 38 C.F.R. § 3.301. On the veteran's entrance examination in 1980, he specifically denied the use of drugs or alcohol. Nevertheless, the veteran has clearly admitted on numerous subsequent occasions that he abused drugs and alcohol prior to service. Service records show no reference to drugs other than alcohol. Records show that in May 1985, he was seen with minor abrasions on his face, and smelled of alcohol, but refused alcohol testing. In August 1985, he was evaluated as a result of an alcohol incident. During screening it was determined that he was dependent on alcohol and started on an alcohol program (to include counseling, command meetings and Alcoholics Anonymous (AA)). In September 1985, he was evaluated for decertification in the Personnel Reliability Program. At that time, it was noted that he had been decertified once before in 1981 for an alcohol related incident. In May 1985, he had received nonjudicial punishment for a drunk and disorderly charge. It was felt that he was well motivated for AA, and he had acknowledged his status as a recovering alcoholic. Progress notes in October 1985 showed that he maintained the program well and had (reportedly) completely abstained from alcohol for 4 months. In November 1986, it was noted that he had been sent by his command for alcohol abuse evaluation after pleading guilty to soliciting a police officer. Describing certain prior situations, he said that in May 1985, he had been drunk, fell on his face, was carried back to his barracks and fondled someone, but allegedly did not remember the exact circumstances due to alcohol; for this, he had gone to a Captain's mast. The veteran gave a history of having been drunk in public on two occasions in 1981 and 1982. On evaluation in December 1986, he gave a history of drinking since age 10, and reported getting drunk regularly soon thereafter and also having blackouts and getting into considerable trouble as a result. He was started on Antabuse. In service, he underwent psychiatric evaluations which concluded that his only sexually aberrant behavior had taken place when he was drunk; no psychiatric diagnoses were reached. In 1987, he was also found to be HIV seropositive. Evidence relating to after service includes extensive records starting from shortly prior to his hospitalization in April 1991. [The veteran's February and March 1991 outpatient visits are detailed in the section below relating to a temporary total rating during hospitalization.] Also of record is a comprehensive report of psychological evaluation conducted in May 1991, during VA hospitalization for a period of several months for cocaine dependence with secondary alcohol dependence. What was recorded at that time is totally consistent with the other evidence of record, and the examiner felt the veteran was presenting a reliable history. The veteran reported a history of generally dysfunctional childhood, and stated that he had experimented with drugs, alcohol and substances at age 9, specifically glue, alcohol and cigarettes. He maintained that he began abusing substances at age 13 with alcohol and marijuana; and that he became dependent on substances at age 16 identifying alcohol, PCP, pot and acid. During the 1991 interview, he maintained that his drug of choice was [now] alcohol/crack (cocaine). However, he also reported that during his substance abuse period, he was a "garbage head" and ingested "all and every substance he was able to get his hands on". He had been involved in a number of rehabilitation/detoxification programs since 1986, and the examiner in May 1991 recommended a number of groups in which he might further participate. In this case, it is the Board's analysis that the veteran's drug and alcohol dependence/abuse is the result of willful misconduct. Longitudinal review of the evidence on file reveals a lengthy clinical history of his having used alcohol and a number of "street drugs" since he was age 9. Records on file reflect that the veteran continued his use of alcohol and drugs in service and after discharge. In this regard it is significant that HIV infection was not manifested until service and is not shown, or even claimed, to be etiologically related to polysubstance abuse. In essence, there is no basis for establishing service connection for alcohol or drug abuse; in fact, service connection is precluded. 38 U.S.C.A. §§ 105, 1131, 5107; 38 C.F.R. § 3.301. Hospitalization from April 25 to July 16, 1991 A total rating (100 percent) will be assigned without regard to other provisions when it is established that a service-connected disability has required hospital treatment in a VA or an approved hospital for a period in excess of 21 days. In pertinent part, the regulations further provide that notwithstanding hospital admission was for disability not connected with service, if during such hospitalization, hospital treatment for a service- connected disability is instituted and continued for a period in excess of 21 days, the increase to a total rating will be granted from the first day of such treatment. 38 C.F.R. § 4.29. The veteran claims that his VA hospitalization from April 25 to July 16, 1991 fulfills the above cited requirements. Specifically, he argues that while he may have been hospitalized for abuse rehabilitation, etc., he was forced to take AZT and enter an HIV Support Group while hospitalized, and that this care somehow transposed the period of care into one primarily for service-connected disability. The evidence does not support this claim. A review of the VA outpatient treatment records immediately prior to the pertinent April-June period of hospitalization shows that in February 1991, the veteran reported that he had been given AZT in the past but was not taking it. [This tends to contradict the implication inherent in his allegations that his taking of AZT during the April-July 1991 period was an unanticipated or new treatment for his HIV.] The veteran said he wanted to wait to take AZT until he no longer felt "fine". However, on March 4, 1991, the veteran returned to the outpatient facility and asked to restart his prior AZT therapy because his T-4 count had decreased. Blood specimens were collected for the required laboratory testing and he was scheduled to return on March 25, 1991. He stated that he had been followed after service in Virginia Beach with T-4 cells in the 400-200 range, for which he was given AZT in 1989 for a few days, since which he had not taken it. The report noted that he was a known alcoholic and crack abuser and had just been released from detoxification. On admission in April 1991 to VA hospitalization, the primary diagnosis was cocaine dependence with secondary diagnoses of alcohol dependence and "HIV positive", along with notations that he had a rash and some tooth problems. A review of the clinical record shows that after putting him on a generalized, wide- reaching program for his alcohol and drug abuse, and obtaining laboratory test results, he was indeed started on AZT, and his overall rehabilitative program included participation in a number of groups, all of which were geared towards his overall health. However, the period of care was instituted for, and remained primarily related to, his polysubstance abuse, which is not service-connected. It is not shown that the HIV infection became particularly symptomatic during the hospitalization and certainly did not require hospitalization for a period of 21 or more days. The treatment of HIV infection was incidental and benefits are not payable pursuant to 38 C.F.R. § 4.29. HIV Infection In questions relating to claimed entitlement to increased compensation benefits, the Court has found that, within the confines of certain parameters, the allegation by a veteran that he has increased disability tends to establish a well-grounded claim. Proscelle v. Derwinski, 2 Vet.App. 629 (1992). Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. As noted at the time of the prior remand, recent changes were undertaken to revise the schedular evaluation of HIV infection. Prior to March 24, l992, the VA used three diagnostic codes for rating HIV-related illness: Diagnostic Code 6351 for acquired immunodeficiency syndrome (AIDS); Diagnostic Code 6352 for AIDS Related Complex; and Diagnostic Code 6353 for HIV seropositivity. Where a veteran was HIV seropositive, i.e., his or her body had produced antibodies as to the human immunodeficiency virus (HIV) as identified through laboratory testing only, without underlying disease, a noncompensable rating was assigned under Diagnostic Code 6353. Ratings under Diagnostic Codes 6351 and 6352 were according to the severity of the "underlying diseases", i.e., the constitutional or neurologic disease, opportunistic infection, etc., associated with HIV-related illnesses. As for any other disorder for which separate diagnostic criteria were not provided, HIV-related illness was rated by analogy under 38 C.F.R. § 4.20 (1994). AIDS Related Complex (ARC) was evaluated between zero and 100 percent using an evaluation for the analogous diagnostic code selected. Chronic lupus erythematosus was assigned a 60 percent rating when chronic, with frequent exacerbations and multiple joint and organ manifestations productive of moderately severe impairment of health. With exacerbations of a week or more 2 or 3 times a year, or symptomatology productive of moderate impairment of health, a 30 percent rating was assigned. Exacerbations once or twice a year or symptomatic during the past 2 years warrant a 10 percent rating. 38 C.F.R. 4.88a, Diagnostic Code 6352-6350, effective prior to March 24, 1992. In the fall of 1991, the VA undertook to revise the provisions available for rating disabilities due to HIV-related illnesses. The VA proposed to rate HIV-related illnesses under a single Diagnostic Code 6351, and 38 C.F.R. § 4.88a (1994) was amended accordingly to remove codes 6352 and 6353. The Board must also consider all facets of the disorder including alternative schedular provisions which may be applicable, or with respect to the history of the disorder pursuant to Schafrath v. Derwinski, 1 Vet.App. 589 (1991). A review of the RO's consideration and recent reevaluation for the veteran's HIV-related disease indicates that he has been appropriately considered now under the currently applicable provisions of Diagnostic Code 6351. These provisions specifically state that when asymptomatic, following the initial diagnosis of HIV infection, with or without lymphadenopathy or decreased T4 count, a zero percent evaluation is assignable. Following the development of definite medical symptoms, T4 cell count less than 500, and on approved medication(s), or with evidence of depression or memory loss with employment limitations, a 10 percent rating is assignable. When there are recurrent constitutional symptoms, intermittent diarrhea, and on approved medication(s), or as a minimum rating with T4 cell counts less than 200, or hairy cell leukoplakia or oral candidiasis, a 30 percent evaluation is warranted. A 60 percent evaluation is assignable when there are refractory constitutional symptoms, diarrhea, and pathological weight loss, or as a minimum rating following development of AIDS-related opportunistic infection or neoplasm. A l00 percent evaluation is warranted for AIDS with recurrent opportunistic infections or with secondary diseases afflicting multiple body systems, or HIV-related illness with debility and progressive weight loss, without remission, or few or brief remissions. Notes are provided within the schedular criteria to the effect that the term "approved medication(s)" includes medications prescribed as a part of a research protocol at an accredited medical institution; and that central nervous system manifestations, opportunistic infections, and neoplasms may also be rated separately under appropriate diagnostic codes if a higher overall evaluation results, but not in combination with the percentages otherwise assignable thereunder. 38 C.F.R. Part 4, Diagnostic Code 6351, effective March 24, 1992. In any evaluation, where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In exceptional cases where the schedular evaluations are found to be inadequate, an extraschedular evaluation commensurate with the average impairment of earning capacity due exclusively to the service- connected disability or disabilities may be approved provided 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) (l994). In service, the veteran was determined to be HIV seropositive while he was being treated for alcohol abuse. It is noteworthy that when evaluated in May 1987 at the Naval Hospital, he had a history of benign neutropenia, history of alcohol abuse, had been in ARC in March 1987 and continued to take Antabuse. There was a history of syphilis in 1986 for which he was given Bicillin, and a history of gonorrhea; he denied hepatitis, herpes, venereal warts and tuberculosis. The examination was within the limits of normal except for cervical, supraclavicular, axillary and inguinal lymphadenopathy. His T-4 helper cells count was 324, and his inverted T4/18 ratio with normal delayed hypersensitivity confirmed his HIV disease. He was initially described as Walter Reed indeterminate status, and placed on full duty (shore based) nondeployable. On reevaluation in August 1987, he was still asymptomatic. However, based on his HIV seropositive serology, continued abnormal lymphocyte subsets and normal delayed hypersensitivity results, it was felt that he had HIV disease, and was classified as Walter Reed III, CDC Class II, designation which was continued by the Medical Board along with past history of alcohol abuse and hepatitis B, by serology. VA outpatient treatment records in early 1991 reflect that the veteran had no clinical symptoms of particular note, but because his T-4 count was decreasing, he himself considered returning to AZT therapy. The veteran's T-4 count was 428 in August 1992. He apparently had periodic bouts of diarrhea and at least once, a cough and intermittent fever; however, there was no sign of opportunistic infection. His T-4 count decreased to 231 in a blood specimen drawn in October 1993, with helper cells considered low, at 21% (normal: 29-55%); and suppressor cells considered high, at 61% (normal: 10-40%). At that time, his blood count showed decreased red and white cell counts (red cells were 4.36 M/cmm (normal range: 4.5-6 M/cmm), and white cells were 2.5 K/cmm (normal range: 4.5-11 M/cmm). According to the recent VA examination, the veteran now takes AZT on an ongoing basis, and is given multivitamin therapy. He has reported having had oral thrush. He complains of fatigue, occasional diarrhea, fevers and night sweats, shortness of breath and joint pain (particularly of the back and shoulder, both of which had been injured in the past) and intermittent numbness of his left hand. He had reported a cough and fever in 1991, but these apparently resolved without chronic residuals. There was no evidence of pneumonia or other significant chronic respiratory disability in subsequent outpatient records or on the VA examination in August 1993, when he also had no limitation of joint motions or left hand numbness. The veteran has intermittently participated in individual and group therapy sessions adjunct to endeavoring to cope with his polysubstance abuse but has no overriding psychiatric diagnosis or evidence of HIV-related psychiatric or nervous problems as such. Nor is it shown that the veteran has had any opportunistic infections. As for his general health, he weighed 197 pounds on VA hospital admission in April 1991; on an outpatient visit in August 1992, he weighed 214 pounds; and at the time of an electrocardiogram in August 1993, (which was normal except for sinus bradycardia), the veteran weighed 220 pounds. He does not exhibit pathological weight loss. Absent any more than overall moderate symptoms, at most, an evaluation in excess of 10 percent is not warranted prior to the August 1993 VA examination. And absent refractory constitutional symptoms at the present time with no more than intermittent complaints of diarrhea or any evidence of opportunistic infections, an evaluation in excess of 30 percent is not now warranted. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. Part 4, § 4.7, Diagnostic Code 6352-6350 (1990) and Diagnostic Code 6351 (1994). In this regard, however, the veteran should know that if his HIV infection related symptoms deteriorate in the future, he is free to offer objective evidence at that time to reopen his claim. At this time, however, there appear to be no alternatively applicable schedular provisions which would provide increased compensation, nor does the disability picture more nearly approximate the criteria for the higher evaluation pursuant to 38 C.F.R. § 4.7. It is noteworthy that the impact of the diagnosed HIV infection on his employment is one factor which is taken into consideration in assigning an evaluation. However, the veteran has not submitted evidence tending to show that his HIV infection results in an unusual disability picture, with such related factors as marked interference with work or repeated hospitalizations, as to warrant consideration on an extraschedular basis. 38 C.F.R. § 3.321(b)(1). Individual Unemployability A total rating based on individual unemployability due to service-connected disabilities requires that a veteran's service- connected disabilities, alone, without regard to advancing age or nonservice-connected factors, preclude gainful employment. In pertinent part, the regulations relating to total ratings indicate that they may be assigned where the schedular rating is less than l00 percent when the disabled person is unable to follow a substantially gainful occupation as a result of service- connected disabilities, provided that if there is only one such disability this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The veteran is service-connected only for his HIV infection with history of hepatitis, rated 30 percent disabling. The veteran has reported that he has not had substantial work since separation from service. However, clinical records from 1991 reflect that he worked as a waiter in 1989; elsewhere, he has expressed an interest in vocational rehabilitation, and indicated that he would like to finish his degree in education. He apparently is currently unemployed. His primary problem other than his HIV status is that he is a polysubstance abuser. While the HIV infection may cause some vocational incapacitations, this has been considered in his schedular evaluation, and it is not shown that this disability alone precludes the veteran's work in some sort of gainful occupational endeavor. Excerpts from his VR&E folder, dated in 1991, reflect that he is clearly employable and infer that his primary employment handicap is his polysubstance abuse. The criteria for a total rating based on individual unemployability due to service-connected disability are not met. Id. ORDER Service connection for polysubstance abuse is denied. A temporary total rating during a period of hospitalization from April 25 to July 16, 1991 pursuant to 38 C.F.R. § 4.29 is denied. An increased evaluation for human immunovirus (HIV) infection with a history of hepatitis, currently evaluated as 30 percent disabling, is denied. A total rating based on individual unemployability due to service- connected disabilities is denied. THOMAS J. DANNAHER 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.