Citation Nr: 0007566 Decision Date: 03/21/00 Archive Date: 03/28/00 DOCKET NO. 98-14 054 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE 1. Whether new and material evidence has been received to reopen the veteran's claim of entitlement to service connection for a right knee disorder. 2. Entitlement to a compensable disability rating for intertrigo/lichen simplex. 3. Entitlement to a disability rating greater than 10 percent for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Michelle L. Nelsen, Associate Counsel INTRODUCTION The veteran had active duty from May 1983 to January 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 1997 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. FINDINGS OF FACT 1. The RO denied service connection for a right knee disorder in a September 1992 rating decision, which the veteran did not appeal. 2. The evidence received since the September 1992 rating decision is not so significant that it must be considered in order to fairly decide the merits of the claim. 3. The veteran's skin disability is manifested by subjective complaints of itching and objective evidence of post- inflammatory hyperpigmentation and areas of excoriations and lichenification, which affect the groin and the scrotum, but marked disfigurement, extensive lesions or constant itching or exudation are not demonstrated. 4. The veteran's PTSD is manifested by subjective complaints of chronic sleep impairment with nightmares, feelings of suspicion about others when driving, and some degree of social withdrawal, as well as objective evidence of anxious mood and some impairment of recent memory, but flattened affect, inappropriate speech, panic attacks more than once per week, difficulty understanding complex commands, impairment of long and short term memory, impaired judgment, impaired abstract thinking, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships are not demonstrated. CONCLUSIONS OF LAW 1. The September 1992 rating decision is final. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. §§ 3.160(d), 20.200, 20.302, 20.1103 (1999). 2. No new and material evidence has been received to reopen the veteran's claim of entitlement to service connection for a right knee disorder. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (1999). 3. The criteria for a 10 percent disability rating for intertrigo/lichen simplex have been met from February 24, 1997. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.102, 4.1, 4.7, 4.20, 4.21, 4.118, Diagnostic Code 7806 (1999). 4. The criteria for a 30 percent disability rating for PTSD have been met from February 24, 1997. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.102, 4.1, 4.7, 4.21, 4.130, Diagnostic Code 9411 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS New and Material Evidence to Reopen Right Knee Claim A review of the claims folder reveals a September 1992 rating decision in which the RO denied service connection for a right knee disorder. The RO informed the veteran of that decision, but he did not initiate an appeal. Therefore, the RO's decision of September 1992 is final. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. §§ 3.160(d), 20.200, 20.302, 20.1103 (1999). The Board notes that the RO informed the veteran by letter dated in August 1997 that it had previously denied the right knee claim and that he had to furnish new and material evidence to reopen his claim. However, in the October 1997 rating decision, the RO failed to determine whether in fact new and material evidence had been received. The law provides that the Board has jurisdiction to consider previously adjudicated claim only if new and material evidence has been presented. 38 U.S.C.A. § 7104(b); Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). As a jurisdictional matter, the question of whether new and material evidence had been submitted may be raised at any time during proceedings by any party or the tribunal, and must be adjudicated before addressing the merits. Id. However, if new and material evidence is presented or secured with respect to a claim that has been disallowed, VA must reopen the claim and review its former disposition. 38 U.S.C.A. § 5108. Thus, the Board must perform a three- step analysis when a veteran seeks to reopen a claim based on new evidence. Winters v. West, 12 Vet. App. 203, 206 (1999). See Hodge v. West, 155 F.3d 1356, 1362 (Fed. Cir. 1998) (overruling the test set forth in Colvin v. Derwinski, 1 Vet. App. 171 (1991), which stated that "new" evidence was "material" if it raised a reasonable possibility that, when viewed in the context of all the evidence, the outcome of the claim would change); Elkins v. West, 12 Vet. App. 209, 218 (1999) (stating that, after Hodge, new and material evidence may be presented to reopen a claim, even though the claim is ultimately not well grounded). First, the Board must first determine whether the evidence is new and material. Winters, 12 Vet. App. at 206. According to VA regulation, "new and material evidence" means evidence not previously submitted to agency decisionmakers which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in connection with evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a). This definition "emphasizes the importance of the complete record for evaluation of the veteran's claim." Hodge, 155 F.3d at 1363. In determining whether evidence is "new and material," the credibility of the new evidence must be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992); but see Duran v. Brown, 7 Vet. App. 216, 220 (1994) ("Justus does not require the Secretary to consider the patently incredible to be credible"). Second, if the Board determines that new and material evidence has been produced, immediately upon reopening the case, the Board must determine whether, based on all the evidence of record, the reopened claim is well grounded pursuant to 38 U.S.C.A. § 5107(a). Winters, 12 Vet. App. at 206. Finally, if the claim is well grounded, the Board may proceed to evaluate the merits of the claim after ensuring that VA's duty to assist has been fulfilled. Id. The evidence of record at the time of the September 1992 rating decision consisted of the veteran's service medical records and the report of the May 1992 VA examination. The RO indicated that there was no evidence of right knee injury in service and no evidence of right knee arthritis to a compensable degree. The evidence of record since the September 1992 rating decision consists of the October 1997 VA examination and a November 1998 statement from the veteran. The Board finds that this evidence is not new and material for purposes of reopening the claim. First, in the November 1998 statement, the veteran merely describes the manner in which he believes his knee was injured in service. All service connection claims involve the basic allegation of injury incurred in service. Therefore, the November 1998 statement is essentially cumulative of prior evidence and not significant by itself or in conjunction with the prior evidence. Similarly, the October 1997 VA examination report reflects the veteran's report that he injured the knee in service. Again, such an assertion is merely cumulative of previous evidence. In addition, the examination report shows some right knee symptoms with a diagnosis of right knee pain and weakness secondary to internal injury. The Board finds that this evidence is essentially redundant of previous evidence, which also showed right knee symptoms. Therefore, the examination report is not particularly significant by itself or in conjunction with the prior evidence. In summary, the Board finds that no new and material evidence has been received to reopen the veteran's claim of entitlement to service connection for a right knee disorder. 38 C.F.R. § 3.156(a); Winters, 12 Vet. App. at 206. Accordingly, the claim is not reopened. 38 U.S.C.A. § 5108. Increased Rating Claims When a claimant is awarded service connection for a disability and subsequently appeals the RO's initial assignment of a rating for that disability, the claim continues to be well grounded as long as the rating schedule provides for a higher rating and the claim remains open. Shipwash v. Brown, 8 Vet. App. 218, 224 (1995). 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 (1999). The Board is also satisfied that all relevant facts have been properly and sufficiently developed to address the issue at hand. Factual Background In February 1997, the veteran submitted a claim for compensation for various disorders, including a skin disorder and PTSD. In connection with that claim, he underwent a VA skin examination in October 1997. The veteran complained of irritation and occasional pain with skin drying and cracking. The symptoms were worse after he played rugby. Various topical solutions had not resolved the lesions. Examination revealed evidence of post inflammatory hyperpigmentation in the groin area and on the scrotum, as well as lichenification and areas of excoriations. The diagnosis was intertrigo and probable early lichen simplex chronicus. Also in October 1997, the veteran was afforded a VA psychiatric examination. He had experienced family problems during service and had attended counseling for three months. These family problems became more intense after his return from Saudi Arabia because he had no patience. He had not received any psychiatric treatment since service. The veteran indicated that he had been employed for the past three years. Although he had experienced problems with his supervisor, he got along well with his co-workers. He disliked his supervisor because he thought he was prejudiced. Regarding social activities, the veteran related that he drank with his co-workers after work and on the weekends, but did not do much else. He had a few friends with whom he drank, played cards, and partied. Subjectively, he complained of stress due to impatience, intolerance, an inability to deal with anger, hearing a voice one or two times a week, avoidance of stimuli associated with war (i.e., guns, hunting, army bases), flashbacks, difficulty concentrating, hypervigilance, distrust and fear of people, and being easily startled by loud noises or unexpected physical contact. In addition, the veteran explained that once or twice every two weeks he had a recurrent dream that began in Saudi Arabia and he woke up in a cold sweat. He had to have three or four beers a day in order to fall asleep. He thought that he dreamed less and slept better when he drank. Typically, he slept for two to three hours, woke for one to one and one-half hours, and then went back to sleep. The veteran also reported feeling down about his finances. He got suspicious and panicky only when driving, when he felt that someone was looking at him or would harm him. Finally, the veteran related that he withdrew himself from a lot of people. He was close to one person, but when she said something he did not like, he became very upset. The examiner commented that the veteran was fully oriented, casually dressed, well groomed, pleasant, cooperative, and chatty. Examination revealed anxious mood and some impairment of recent memory only. Although he was not suicidal, he sometimes thought that he would be better off dead. Otherwise, mental status examination was unremarkable. The diagnosis was PTSD. In his November 1998 statement, the veteran related that he had a bad rash between his legs that itched constantly. At times he needed medication to stop the itching. Occasionally, there was so much irritation that he scratched until he drew blood. With respect to the PTSD claim, the veteran related that, since returning from the Gulf War, he had frequent nightmares and woke up in a cold sweat. He also asserted that he could not maintain a relationship with a woman. Prior to the war, he had been married to his wife for 10 years and had been with her for 13 years. They got divorced after the war. Since then, he had had a number of short-term relationships, each lasting no more than six months. Other complaints included memory problems and feelings of fear with loud noises. The veteran explained that he found it difficult to be around a lot of people. He had violent reactions when he disagreed with people and had gotten into numerous fights. He was alone for days at a time and watched movies all day long. Analysis 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. If a veteran has an unlisted disability, it will be rated under a disease or injury closely related by functions affected, symptomatology, and anatomical location. 38 C.F.R. § 4.20; see 38 C.F.R. § 4.27 (providing specific means of listing diagnostic code for unlisted disease or injury). 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. The Board observes that, in a claim of disagreement with the initial rating assigned following a grant of service connection, as is the situation in this case, separate ratings can be assigned for separate periods of time, based on the facts found. Fenderson v. West, 12 Vet. App. 119, 126 (1999). See AB v. Brown, 6 Vet. App. 35, 38 (1993) (on a claim for an original or an increased rating, it is presumed that the veteran seeks the maximum benefit allowed by law and regulation, and it follows that such a claim remains in controversy when less than the maximum available benefit is awarded). 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). 1. Intertrigo/Lichen Simplex The veteran's skin disability is rated as noncompensable (0 percent disabling) by analogy to Diagnostic Code (Code) 7806, eczema. 38 C.F.R. § 4.118. Under the rating criteria, a 0 percent rating is assigned when there is slight, if any, exfoliation, exudation or itching, if on a nonexposed surface or small area. A 10 percent rating is warranted when there is exfoliation, exudation or itching, if involving an exposed surface or extensive area. A 30 percent disability rating is warranted with exudation or itching constant, extensive lesions or marked disfigurement. The VA examination report shows that the skin disability affects the groin and scrotum, but there is no competent medical evidence that indicates extensive lesions, constant itching or exudation, or marked disfigurement. With consideration of the findings on examination and the veteran's complaints, the evidence is in equipoise with respect to whether an extensive area is involved. In resolving all doubt in the veteran's favor the evidence more closely approximates the criteria for a 10 percent rating from the date of the veteran's claim. 38 C.F.R. § 4.7; Fenderson. However, on the basis of the above analysis the preponderance of the evidence is against entitlement to an evaluation greater than the 10 percent granted herein for intertrigo/lichen simplex. 38 U.S.C.A. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.3, 4.7. 4.118, Code 7806. 2. PTSD The veteran's PTSD is evaluated as 10 percent disabling under Code 9411. 38 C.F.R. § 4.130. A 10 percent evaluation is in order when there is 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; when symptoms are controlled by continuous medication. A 30 percent disability rating is appropriate when there is 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 rating is assigned when there is 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. In this case, the Board finds that the evidence supports entitlement to a 30 percent rating for PTSD. Specifically, during the October 1997 VA examination, the veteran reported chronic sleep impairment with nightmares, feelings of suspicion about others when driving, and some degree of social withdrawal. The evaluation revealed anxious mood and some impairment of recent memory. Resolving doubt in the veteran's favor, the Board finds that the evidence of overall disability more nearly resembles the criteria for the 30 percent rating for PTSD from the date of the veteran's claim. 38 C.F.R. § 4.7; Fenderson. However, the Board finds that the preponderance of the evidence is against any higher evaluation. That is, there is no objective evidence showing the presence of the symptoms set forth for a 50 percent rating. Moreover, the veteran indicated that he had been employed for several years and got along well with his co-workers, even on a social basis. Therefore, the disability picture does not more closely approximate the criteria for a 50 percent rating. 38 C.F.R. § 4.7. ORDER As no new and material evidence has been received to reopen the veteran's claim for service connection for a right knee disorder, the claim is not reopened and the appeal is denied. Subject to the laws and regulations governing the payment of monetary benefits, a 10 percent disability rating for intertrigo/lichen simplex is granted from February 24, 1997. Subject to the laws and regulations governing the payment of monetary benefits, entitlement to a 30 percent disability rating for PTSD is granted from February 24, 1997. MILO H. HAWLEY Acting Member, Board of Veterans' Appeals