Citation Nr: 0007564 Decision Date: 03/21/00 Archive Date: 03/28/00 DOCKET NO. 98-13 177 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUES 1. Entitlement to an initial evaluation in excess of 10 percent for service-connected post-traumatic stress disorder (PTSD). 2. Entitlement to service connection for hypertension, including as secondary to service-connected PTSD. 3. Entitlement to service connection for irritable bowel syndrome, including as secondary to service-connected PTSD. 4. Entitlement to service connection for gastroesophageal reflux, including as secondary to service-connected PTSD. 5. Entitlement to service connection for cervical muscle strain, including as secondary to service-connected PTSD. 6. Entitlement to service connection for muscle tension headaches, including as secondary to service-connected PTSD. 7. Entitlement to service connection for lumbar muscle strain, including as secondary to service-connected PTSD. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD P. A. Kultgen, Associate Counsel INTRODUCTION The veteran had active service from April 1968 to April 1972. This matter is before the Board of Veterans' Appeals (Board) on appeal of a May 1998 rating decision from the Boise, Idaho, Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for PTSD with a 10 percent evaluation, effective from September 3, 1997, and denied service connection for hypertension, irritable bowel syndrome, gastroesophageal reflux, cervical muscle strain, muscle tension headaches, and lumbar muscle strain. The Board notes that the veteran also timely filed a notice of disagreement to the May 1998 rating decision denying service connection for bilateral hearing loss and tinnitus. A statement of the case was issued in August 1998. An appeal consists of a timely filed notice of disagreement in writing and, after a statement of the case has been furnished, a timely filed substantive appeal. 38 C.F.R. § 20.200 (1999). A substantive appeal must either indicate that the appeal is being perfected as to all issues addressed in the statement of the case, or must specifically identify the issues appealed. 38 C.F.R. § 20.202 (1999). A substantive appeal must be filed within 60 days from the date that the agency of original jurisdiction mailed the statement of the case to the appellant, or within the remainder of the 1-year period from the date of mailing of the notification of the determination being appealed, whichever period ends later. 38 C.F.R. § 20.302(b) (1999). Therefore, to timely perfect his appeal, the veteran needed to submit a substantive appeal prior to May 1999. The record contains no submission by the veteran within this period, which could be found to be a substantive appeal on the issues of service connection for bilateral hearing loss and tinnitus. The RO has not certified these issues for appeal to the Board. Therefore those issues are not currently before the Board. FINDINGS OF FACT 1. The veteran's PTSD is manifested by difficulty performing occupational tasks with VA, generally satisfactory functioning, good relationships with his family and friends, panic attacks, hypervigilance, chronic sleep impairment, and mild memory loss. 2. The record contains evidence of current diagnoses of hypertension and irritable bowel syndrome, and competent medical evidence of a nexus between these disabilities and the veteran's service-connected PTSD. 3. The record contains no medical evidence of a current diagnosis or a current disability manifested by gastroesophageal reflux, cervical muscle strain, muscle tension headaches, or lumbar muscle strain. CONCLUSIONS OF LAW 1. The criteria for a 30 percent evaluation for service- connected PTSD have been met; the criteria for an evaluation in excess of 30 percent have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 4.130, Diagnostic Code 9411 (1999). 2. The claims of entitlement to service connection for hypertension and irritable bowel syndrome are well grounded. 38 U.S.C.A. § 5107(a) (West 1991); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table). 3. The claims of entitlement to service connection for gastroesophageal reflux, cervical muscle strain, muscle tension headaches, and lumbar muscle strain are not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Evaluation of PTSD I. Factual Background The veteran's DD Form 214 noted that the veteran served in Vietnam from January to December 1970. The veteran was awarded the Bronze Star Medal with V Device and 2nd Oak Leaf Cluster, the Combat Infantryman Badge, and the Air Medal among other medals and commendations. In a statement attached to his initial claim, received in September 1997, the veteran reported difficulty falling and staying asleep, nightmares, chronic and acute depression, hypervigilance, exaggerated startle response, daily intrusive thoughts, anger, stress, inability to maintain close personal relationships, and avoidance of stimuli (war movies, news). The veteran stated that he was no longer able to work as a VA Rating Specialist due to the stress of having to evaluate PTSD and other combat-related claims. A VA examination was conducted in November 1997. The examiner noted that no medical records were available for review, as the wrong claims file had been sent. The veteran had been employed for 24 years with VA as a management specialist, management and program analyst, and rating specialist, until taking an early retirement shortly before the examination. The veteran stated that he began to experience his physical problems approximately three years previous, when he began work on the ratings board. The examiner stated that the veteran's military experiences put him in the moderate to heavy level of combat exposure. Mental status examination revealed euthymic mood, congruent affect, above average intelligence, logical thought processes, and no delusions, hallucinations, or suicidal ideation. The veteran reported daily recurrent distressing recollections of his experiences of Vietnam, but these incidents had decreased since his retirement. He stated that he had insomnia and nightmares approximately once per week. He noted that he had a close relationship with his wife and children, and had several friends, but the veteran's spouse stated that the veteran was socially isolated. The veteran reported panic attacks, which began approximately fifteen years prior to examination. The examiner provided diagnoses of PTSD and generalized anxiety disorder. A global assessment of functioning (GAF) rating of 61-70 was reported, but the examiner noted that the GAF would have been somewhat lower prior to the veteran's early retirement. In his VA Form 9, substantive appeal, received in August 1998, the veteran stated that he had almost weekly nightmares about his combat experience and he could not fall asleep without first having a few drinks. He reported daily intrusive thoughts, forgetfulness, hypervigilance, and startle response. He noted that he was forced to end his career with VA with early retirement at age 51 due to the stress of being exposed to combat medical and PTSD reports. II. Analysis When a veteran is awarded service connection for a disability and appeals the RO's rating determination, the claim continues to be well grounded as long as the claim remains open and the rating schedule provides for a higher rating. See Shipwash v. Brown, 8 Vet. App. 218, 224 (1995). In the instant case, there is no indication that there are additional records, which have not been obtained and which would be pertinent to the present claims. Thus, no further development is required in order to comply with VA's duty to assist mandated by 38 U.S.C.A. § 5107(a). Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Schedule), 38 C.F.R. Part 4 (1999). The percentage ratings contained in the Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (1999). In determining the disability evaluation, the VA has a duty to acknowledge and consider all regulations which are potentially applicable based upon the assertions and issues raised in the record and to explain the reasons and bases for its conclusion. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). Governing regulations include 38 C.F.R. §§ 4.1, 4.2, which require the evaluation of the complete medical history of the veteran's condition. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where the issue is the assignment of an initial rating for a disability, following an initial award of service connection for that disability, separate ratings can be assigned for separate periods of time based on facts found, and the Board must consider all evidence of record from the time of the veteran's application. Fenderson v. West, 12 Vet. App. 119 (1999). 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 (1999). All benefit of the doubt will be resolved in the veteran's favor. 38 C.F.R. § 4.3 (1999). The Schedule provides for the following evaluations: ? 10 percent for occupational and social impairment due to mild or transient symptoms, which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication; ? 30 percent for 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); ? 50 percent for 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; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships; ? 70 percent for 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; 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; and ? 100 percent for 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. 38 C.F.R. § 4.130, Diagnostic Code 9411 (1999). The Board finds that the veteran's symptomatology is most closely analogous to the criteria for a 30 percent evaluation. The Board notes that the veteran retired from his position with VA due to his increasing PTSD symptoms, exacerbated by reading the claims and reports of other veterans. The VA examiner in November 1997 reported that during his employment, the veteran's ability to function was decreased. However, since retirement the veteran's symptoms have subsided and he maintains a functional level with some mild symptoms, generally functioning pretty well with some meaningful relationships. See American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (Fourth Edition) (DSM-IV). The veteran has been married to his current wife for more than 30 years and reports a good relationship with her and his children. He reported having several friends with whom he socialized. The veteran has also reported panic attacks, forgetfulness, and chronic sleep impairment with nightmares and insomnia. The evidence preponderates against an evaluation in excess of 30 percent as the veteran does not demonstrate any of the criteria enumerated in the Schedule for a higher evaluation. Service Connection for Multiple Disabilities III. Factual Background The veteran's service medical records contain no complaints, diagnoses, or opinions of hypertension, irritable bowel syndrome, gastroesophageal reflux, cervical spine pain or pathology, headaches, or lumbar spine pain or pathology. The veteran's separation medical examination in March 1972 noted no abnormalities, except a birthmark on the left cheek. Blood pressure reading was 124/82. The record contains treatment records from R.G.P., M.D., dated from October 1992 to November 1994. An annual physical examination in October 1992 revealed hypertension and irritable bowel syndrome. The veteran was seen by R.D.W., M.D., in April 1994, due to complaints of rectal bleeding. Following examination, Dr. R.D.W. stated that it seemed likely that the veteran had some hemorrhoidal tissue. A sigmoidoscopy, performed in May 1994, was completely normal, except for prominent anal verge hemorrhoidal tissue. In support of his claim, the veteran submitted an article by L.R.M., M.D., entitled "Hypertension in the War Veteran," written after a review of medical literature at the request of the Disabled American Veterans, to determine whether prisoner of war (POW) experiences or PTSD could help bring on a veteran's hypertension. Dr. L.R.M. stated that the research studies reviewed, when taken together "make a compelling case for the thesis that psychological factors play a causative role in the development of hypertension." He reported that the research cited supported the contention that emotional factors, specifically anxiety, put one at an increased risk of developing hypertension. Dr. L.R.M. noted that PTSD was subsumed under the general category of anxiety disorders. Dr. L.R.M. reported the following conclusions (in pertinent part): 1) That psychosocial stress, particularly wartime experience, played an important causative role in the development of hypertension; and 2) That veterans suffering from PTSD are at an increased risk for developing hypertension. A VA mental disorders examination was conducted in November 1997. The examiner noted that no medical records were available for review, as the wrong claims file had been sent. The examiner noted that the veteran was taking medication for hypertension, and the veteran reported complaints of gastrointestinal problems and irritable bowel syndrome. The examiner noted the veteran's reported inservice stressors and noted medical diagnoses of hypertension and a "collection of other stress-related medical problems, including irritable bowel syndrome." In his VA Form 9, substantive appeal, received in August 1998, the veteran stated that he suffered from chronic muscle spasm in his neck and back, chronic muscle tension headaches and gastrointestinal problems, due to his hypervigilance and PTSD. IV. Analysis Service Connection Generally Service connection may be established where the evidence demonstrates that an injury or disease resulting in disability was contracted in the line of duty coincident with military service, or if pre-existing such service, was aggravated therein. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303 (1999). Where certain diseases, such as hypertension, are manifested to a compensable degree within the initial post-service year, service connection may be granted on a presumptive basis. 38 U.S.C.A. §§ 1101, 1112 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.307, 3.309 (1999). When a disability is not initially manifested during service or within an applicable presumptive period, service connection may nevertheless be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in or aggravated by service. See 38 U.S.C.A. § 1113(b) (West 1991); 38 C.F.R. § 3.303(d). Service connection may be granted for disability that is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). The United States Court of Appeals for Veterans Claims (known as the United Stated Court of Veterans Appeals prior to March 11, 1999) (hereinafter, "the Court") has held that compensation can be awarded for a nonservice-connected disability that is aggravated by a service-connected disability for the degree of disability over and above the degree of disability existing prior to the aggravation, even if the service-connected disability is not the proximate cause of the nonservice-connected disability. Allen v. Brown, 7 Vet. App. 439, 448-449 (1995). The threshold question to be answered in the veteran's appeal is whether he has presented evidence of a well-grounded claim. Under the law, a person who submits a claim for benefits shall have 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); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). A claim need not be conclusive but only possible to satisfy the initial burden of § 5107(a). Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). If a claim is not well grounded, the application for service connection must fail, and there is no further duty to assist the veteran in the development of his claim. 38 U.S.C.A. § 5107, Murphy, 1 Vet. App. 78 (1990). The United States Court of Appeals for the Federal Circuit held that, "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." Epps v. Gober, 126 F.3d 1464, 1468 (Fed. Cir. 1997) quoting Epps v. Brown, 9 Vet. App. 341, 343-344 (1996); see 38 C.F.R. §§ 3.303, 3.307, 3.309; Caluza v. Brown, 7 Vet. App. 498, 506 (1995). For the purpose of determining whether a claim is well grounded, the credibility of the evidence is presumed. See Robinette v. Brown, 8 Vet. App. 69, 75 (1995). Service Connection for Hypertension The record contains a current diagnosis of hypertension. Private physical examination in October 1992 revealed hypertension and the VA examiner in November 1997 also noted a diagnosis of hypertension. The veteran's service medical records contain no diagnosis of hypertension and there is no evidence of record that that the veteran's hypertension was manifest to a compensable degree within the initial post-service year presumptive period. The first diagnosis of hypertension of record was in October 1992, more than twenty years after the veteran's discharge from service. The veteran contends that his hypertension is secondary to his service-connected PTSD. Medical treatise statements that indicate the possibility of a link between in-service injury and current disability are too general and inconclusive to make a claim well grounded. Sacks v. West, 11 Vet. App. 314, 316 (1998); see also Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996). However, the holding in Sacks does not extend to situations where medical treatise evidence, standing alone, discussed generic relationships with a degree of certainty that, under the facts of the specific case, there is at least plausible causality based upon objective facts rather than on a lay medical opinion. Wallin v. West, 11 Vet. App. 509, 513-514 (1998); Sacks, 1 Vet. App. at 317. The Board finds that the medical article from Dr. L.R.M. provides just such evidence of a generic relationship, that under the facts of this case, creates plausible causality between the veteran's service- connected PTSD and his current hypertension. Dr. L.R.M. specifically noted that wartime experience, which the veteran's service medals are indicative, plays an important causative role in the development of hypertension and veterans suffering from PTSD are at an increased risk of developing hypertension. In addition, the VA examiner in November 1997 noted a diagnosis of hypertension and a "collection of other stress- related medical problems." The stressors reported by the examiner were entirely from the veteran's military service and from his reaction to his job duties due to PTSD. See Hodges v. West, 13 Vet. App. 287 (2000). Based on the article by Dr. L.R.M., the November 1997 VA examination, medical treatment records from 1992-1994, and the veteran's statements, the Board finds that the veteran's claim for service connection for hypertension is well grounded. 38 U.S.C.A. §5107(a) (West 1991). The VA has a duty to assist the veteran in the development of all facts pertinent to his claim. 38 U.S.C.A. § 5107(a); 38 C.F.R. § 3.103(a) (1999); See Morton v. West, 12 Vet. App. 477, 480 (1999). The VA examiner in November 1997 noted that the veteran was taking medication for hypertension. The record contains no treatment records since November 1994. The Board finds that further development is necessary to meet the duty to assist and such development is ordered in the remand portion of this decision. 38 U.S.C.A. § 5107(a). Service Connection for Irritable Bowel Syndrome The record contains a current diagnosis of irritable bowel syndrome. The veteran's treating physician in October 1992 noted a diagnosis of irritable bowel syndrome. In addition, the VA examiner in November 1997 noted a diagnosis of irritable bowel syndrome, although this diagnosis was apparently based entirely on a history provided by the veteran. The veteran's service medical records contain no diagnosis of irritable bowel syndrome or complaints of gastrointestinal problems. The Board notes that the veteran contends that his irritable bowel syndrome is secondary to his service-connected PTSD. The VA examiner in November 1997 noted that the veteran suffered from a "collection of...stress-related medical problems, including irritable bowel syndrome." The Board finds this to be sufficient to meet the third element of a well-grounded claim, in that it creates a plausible causation between the veteran's stress/PTSD and his current irritable bowel syndrome. Based the November 1997 VA examination, medical treatment records from 1992-1994, and the veteran's statements, the Board finds that the veteran's claim for service connection for irritable bowel syndrome is well grounded. 38 U.S.C.A. §5107(a) (West 1991). The VA has a duty to assist the veteran in the development of all facts pertinent to his claim. 38 U.S.C.A. § 5107(a); 38 C.F.R. § 3.103(a) (1999); See Morton v. West, 12 Vet. App. 477, 480 (1999). The record contains no treatment records since November 1994. The Board finds that further development is necessary to meet the duty to assist and such development is ordered in the remand portion of this decision. 38 U.S.C.A. § 5107(a). Service Connection for Gastroesophageal Reflux, Cervical Muscle Strain, Muscle Tension Headaches, and Lumbar Muscle Strain The record contains no competent medical evidence of a diagnosis of current disabilities manifested by gastroesophageal reflux, cervical muscle strain, muscle tension headaches, and lumbar muscle strain. In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Board recognizes that there is no duty to assist in a claim's full development if a well-grounded claim has not been submitted. See Morton, 12 Vet. App. at 480. However, the Court has held that there is some duty to inform the veteran of the evidence necessary for the completion of an application for benefits, under 38 U.S.C.A. § 5103 (West 1991), even where the claim appears to be not well grounded. Beausoleil v. Brown, 8 Vet. App. 459, 465 (1996); Robinette, 8 Vet. App. at 79-80. The appellant has not identified any medical evidence that has not been submitted or obtained, which would support a well-grounded claim. Thus, VA has satisfied its duty to inform the veteran under 38 U.S.C.A. § 5103(a). See Slater v. Brown, 9 Vet. App. 240, 244 (1996). ORDER Entitlement to a 30 percent evaluation for service-connected PTSD is granted. The claims of entitlement to service connection for hypertension and irritable bowel syndrome are well grounded. To this extent, the appeal is granted. Entitlement to service connection for gastroesophageal reflux, cervical muscle strain, muscle tension headaches, and lumbar muscle strain are denied. REMAND The Board finds the veteran's claims for service connection for hypertension and irritable bowel syndrome to be well grounded. Therefore, to ensure full compliance with due process requirements, the case is REMANDED to the RO for the following development: 1. The RO should request that the veteran identify all medical care providers, VA and non-VA, who have treated him for his hypertension and irritable bowel syndrome since November 1994. After securing the necessary release, the RO should obtain these records. 2. The RO should arrange for examinations of the veteran by appropriate VA specialists for the purpose of ascertaining the current nature, extent of severity, and etiology of the veteran's hypertension and irritable bowel syndrome. The claims file and a separate copy of this remand must be made available to and reviewed by the examiners prior and pursuant to conduction and completion of the examinations. The examiners should perform any testing necessary to provide an assessment of the veteran's condition, if not medically contraindicated. The examiners should express an opinion as to whether the veteran's current hypertension and/or irritable bowel syndrome are due to or were aggravated by any incident of the veteran's service. The examiners should specifically note whether it is at least as likely as not that the veteran's hypertension and/or irritable bowel syndrome are due to or were aggravated by his service-connected PTSD. 3. The RO should carefully review the examination reports to ensure that it is in full compliance with this remand, including all of the requested findings and opinions. If not, the report should be returned to the examiner for corrective action. 4. The RO should then adjudicate the claims for service connection for hypertension and irritable bowel syndrome. If any claim remains denied, the veteran should be furnished with a supplemental statement of the case which summarizes the pertinent evidence, fully cites any applicable legal provisions not previously provided, and reflects detailed reasons and bases for the decision. The veteran should then be afforded the applicable time period in which to respond. Thereafter, the case should be returned to the Board for appellate review, if otherwise in order. By this remand, the Board intimates no opinion as to any final outcome warranted. The veteran need take no action until he is notified. The veteran is hereby notified that it is his responsibility to report for the examination and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. § 3.655 (1999). The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. John E. Ormond, Jr. Member, Board of Veterans' Appeals