BVA9508300 DOCKET NO. 92-04 344 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a heart disorder. 2. Entitlement to service connection for residuals of malnutrition. 3. Entitlement to an increased rating for chronic reactive depression with hypochondriasis, developing panic disorder, and post-traumatic stress disorder (PTSD), currently evaluated as 70 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD William H. Hickman, Associate Counsel INTRODUCTION The veteran had active military service from August 1942 to November 1945, and was a prisoner of war (POW) of the German Government between October 1943 and May 1945. These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 1990 and subsequent rating decisions of the Department of Veterans Affairs (VA) St. Petersburg, Florida, Regional Office (RO). The case was previously before the Board in July 1993 at which time it was remanded for further development. The case is now before the Board for appellate review. CONTENTIONS OF APPELLANT ON APPEAL With respect to the claim for service connection for a heart disorder, it is argued, in essence, that the veteran has been treated for heart pathology since shortly after separation from service and, hence, under the applicable VA law and regulations he is entitled to service connection for a heart disorder. Additionally, with respect to this pathology, it is alleged that the veteran's current heart disorder is the result of beriberi pathology that the veteran experienced while a POW and, therefore, under the applicable law and regulations, the current heart disorder is presumed to have been incurred in service and, therefore, service connection for this disorder should be granted. With respect to the veteran's claim for service connection for residuals of malnutrition, it is alleged, essentially, that the veteran experienced malnutrition while in service, that he currently has residuals thereof, and under the law and regulations applicable to POW's, the veteran is entitled to a presumptive grant of service connection. With respect to the veteran's claim for an increased rating for his service-connected psychiatric disorder, it is contended, essentially, that the disorder is increasingly symptomatic, that it now includes PTSD, and has severely impacted on the veteran's ability to socially interact and, therefore, a total rating for this disorder is warranted. 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(s). 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 evidentiary record is against the veteran's claims for service connection for a heart disorder and residuals of malnutrition, but supports the veteran's claim for a total rating for his service-connected psychiatric pathology. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been attempted to be obtained by the RO. 2. The evidentiary record does not demonstrate that the veteran experiences symptoms associated with beriberi heart disease in service. 3. The evidentiary record does not demonstrate that the current cardiovascular pathology was present in service or manifest to a degree of 10 percent or more within one year of discharge from service. 4. The evidentiary record does not demonstrate that the veteran has residuals of malnutrition. 5. The evidentiary record does demonstrate that the veteran has ceased virtually all social interaction due to his service- connected psychiatric pathology. CONCLUSIONS OF LAW 1. A heart disorder, including beriberi heart disease, was not incurred in or aggravated by service; and a cardiovascular disorder may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137, 1154(b), 5107 (West 1991); 38 C.F.R. §§ 3.303(b)(d), 3.307, 3.309(a)(c) (1994). 2. Residuals of malnutrition were not incurred in or aggravated by service, and may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137, 1154(b), 5107 (West 1991); 38 C.F.R. §§ 3.303(b)(d), 3.307, 3.309(c) (1994). 3. The criteria for a 100 percent rating for chronic reactive depression with hypochondriasis, developing panic disorder, agoraphobia, and PTSD have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.16(c), 4.129, 4.130, 4.132, Part 4, Diagnostic Codes 9405, 9410, 9411 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran's claims are well grounded. That is, they are claims which are plausible and capable of substantiation. All relevant facts have been attempted to be developed by the RO and no further assistance to the veteran, including additional VA examination, is required to comply with the duty to assist him mandated by 38 U.S.C.A. § 5107(a). I. The Claim for Service Connection for a Heart Disorder Under the applicable law and regulations, service connection may be established for chronic disability resulting from personal injury suffered or disease contracted during service in the line of duty. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303(b) (1994). Additionally, the veteran can be granted service connection for any cardiovascular disorder that is shown to have manifested itself to a degree of 10 percent or more within one year of the veteran's separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 1991); 38 C.F.R. §§ 3.307, 3.309(a) (1994). Also, because the record indicates that the veteran was a POW of the German Government for more than 30 days, he is entitled to the rebuttable presumption that certain specified pathologies are of service origin if any of these specified pathologies manifested themselves to a degree of 10 percent or more at any time after discharge from service. Two of the applicable pathologies listed are beriberi heart disease (including ischemic heart disease in a former POW who experienced localized edema during captivity), and malnutrition. 38 C.F.R. §§ 3.307, 3.309(c) (1994). Additionally, VA regulations provide that service connection may be granted for any disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (1994). It was not initially contended or alleged that the veteran had heart symptomatology or pathology while on active duty. Instead, the veteran originally stated that when he returned to his civilian employment shortly after service discharge he experienced episodes of irregular heart actions. (See the statement of medical history authored by the veteran dated in August 1990, and the medical history reported on a VA examination dated in October 1990. Also see the history recorded on a VA examination dated in August 1991 wherein it was stated that heart symptomatology began approximately one year after service discharge.) However, more recently the veteran has alleged he was treated for heart pathology in service (see the history reported on a VA examination dated in November 1993). The veteran has also maintained, in the medical history provided to several VA physicians between 1990 and 1993, that he was treated for many years for heart symptomatology by a cardiologist in New Jersey. The veteran also stated he retired from his work in a bank in 1980, moved to Florida, and there established a relationship with another cardiologist. (See the veteran's letter dated March 4, 1991, filed in conjunction with VA Form 1-9 received in March 1991.) In response to the RO's request to the veteran to provide them with the names and addresses of all physicians who treated him for heart pathology in the past, the veteran replied that all these physicians were dead, and declined to offer the names and addresses of any physician who treated him for heart pathology prior to 1988 (see the veteran's statement on VA Form 21-4138, dated in August 1993). The veteran's service medical records are not available. The first clinical evidence of record of any heart pathology is from the year 1988. This evidence reflects the veteran had a long history of mitral (valve) regurgitation and of paroxysmal episodes of atrial fibrillation, and was currently admitted to a private medical center to undergo an echocardiogram. (see the medical record from the Palm Beach Gardens Medical Center dated in April 1988.) Subsequent private medical records, also dated in 1988, indicate that the veteran had had a defibrillator implanted to control episodes of tachycardia. The report of a VA examination dated in November 1993 diagnosed the veteran's current heart pathology as organic heart disease of idiopathic etiology, the anatomy of which was said to consist of mitral valve insufficiency that was clinically at least moderate in severity, and the physiology of which was said to be sustained ventricular tachycardia requiring the replacement of an automatic implantable cardioverter defibrillator. The evidentiary record does not support a grant of service connection for heart pathology on a direct basis. Although the only evidence of record as to the inception of heart pathology is the medical history provided by the veteran, that history, by a large majority, posits the start of the disorder as commencing sometime in the first year following service separation (ranging in the time frame of shortly after separation to approximately one year after discharge). The history provided to the VA physician at the time of a VA heart examination conducted in November 1993 (that the veteran was seen in service for heart symptoms) is completely at variance with the veteran's previously detailed written statements, and the prior medical history he provided to the VA examiners. Accordingly, the weight of the evidence does not demonstrate that a heart disorder incurred in or was aggravated by service. 38 U.S.C.A. § 1110, 1154(b) (West 1991). Additionally, the evidentiary record does not support an award of service connection for cardio-vascular pathology appearing within in one year of service separation to a degree of 10 percent or more. Although the veteran's medical history, as provided by himself, has attested to the appearance of heart pathology in this time frame, his other statements and actions serve to render his medical history as not credible. First of all, he has given three different time frames on three different occasions as to the commencement of heart pathology (shortly after service, approximately within one year of service, and during service). Those differing time frames reflect on the accuracy and credibility that can be accorded the medical history he has provided. Secondly, the veteran by refusing to divulge the names and addresses of the physicians who allegedly treated him for heart pathology prior to 1988, has effectively precluded the Board from verifying his statements. Although the veteran has stated these physicians are dead (including the one who purportedly treated him when he moved to Florida in 1980), this does necessarily mean that their medical records on the veteran would be unavailable. The United States Court of Veterans Appeal (Court) in the case of Olson v. Principi, 3 Vet.App 480 (1992), reiterated that the duty to assist a veteran is not always a one-way street, and that a veteran must be prepared to cooperate with the VA's efforts to provide an adequate medical examination, and should submit all the medical evidence supporting his claim. In the instant case, the Board, in its remand of July 1993, in effect requested the veteran to let the VA search for his prior medical records. This was especially significant given the fact that the service medical records were not available. The veteran steadfastly has refused to cooperate in this regard. The above actions of the veteran render his self-described medical history as suspect. The more credible evidence is that clinical evidence which demonstrates the commencement of heart pathology in 1988. Although lay evidence is acceptable to describe the start of symptoms (pain etc.), when all factors are considered, the lay evidence presented herein, is not considered to be as credible as the clinically verified evidence of record. Additionally, it is noted that even if the lay evidence concerning the commencement of heart pathology within one year of service were deemed to be credible, it is by no means certain that this evidence establishes that the pathology was manifest to a to a degree of 10 percent or more. This is because the record reflects that the veteran had a successful career in banking between 1946 and 1980 (see the report of a VA Social and Industrial survey dated in September 1990). In other words, if the veteran did have a heart disorder that commenced within one year of separation from service, it did not keep him from functioning in the workplace. Accordingly, the entire evidentiary record does not demonstrate that cardio-vascular pathology manifested itself to a degree of 10 percent or more within one year of separation from service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137 (West 1991); 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a) (1994). Additionally, the Board concludes that the veteran is not entitled to the presumption that is extended to former POW's who had symptoms of beriberi heart disease in service(localized edema ), and who at any time after service manifest ischemic heart disease to a degree of 10 percent or more. Said presumption entitles the veteran to a grant of service connection for the heart disorder in the absence of affirmative evidence to the contrary. 38 C.F.R. §§ 3.307, 3.309(c)(note 2)(1994) The medical history provided by the veteran gives no indication he had symptomatology associated with beriberi heart disease while a POW (localized edema), or that he was treated for such symptomatology during service. Additionally, the current diagnosis of the veteran's heart disorder from the VA examination of November 1993 is that it is organic heart disease of idiopathic etiology (of unknown causation, Dorland's Illustrated Medical Dictionary, 25th edition, W. B. Saunders 1974). A past history of beriberi heart disease is not mentioned. Accordingly, the diagnosis is not consistent with the veteran having had beriberi heart disease. Therefore, service connection for heart pathology on the presumptive basis afforded former POW's is denied. 38 C.F.R. §§ 3.307, 3.309(c)(note 2) (1994). In reaching the decisions within this section, the Board has considered the doctrine of affording the veteran the benefit of any doubt as mandated by 38 U.S.C.A. § 5107(b). However, the evidentiary record is not in relative equipoise with respect to the positive and negative evidence so as to decide this matter on that basis. II. The Claim for Service Connection for Residuals of Malnutrition For the applicable law and regulations see Section I herein. The veteran contends he was malnourished as a POW, and, essentially, that currently he has residuals of malnutrition to a degree of 10 percent and, therefore, under the VA presumptive regulations he is entitled to service connection. 38 C.F.R. §§ 3.307, 3.309(c) (1994). The veteran underwent a VA POW protocol examination in October 1990. This noted, by history, that the veteran while a POW had malnutrition and avitaminosis. It was further indicated that the veteran had recovered from this pathology. Additionally, the report of a VA general medical examination dated in November 1993 indicated that there was no evidence of residual symptoms which could be attributed to malnutrition. None of the other clinical evidence of record indicates that the veteran is currently suffering from residuals of malnutrition. Accordingly, the evidentiary record does not demonstrate that the veteran currently manifests malnutrition to a degree of 10 percent or more and, therefore, service connection for this disorder is denied. 38 C.F.R. §§ 3.307, 3.309(c) (1994). The doctrine of affording the veteran the benefit of any doubt, as mandated by 38 U.S.C.A. § 5107(b) (West 1991) is not for application as the evidentiary record is not in relative equipoise with respect to this issue. III. The Claim for an Increased Rating for the Service-connected Psychiatric Pathology A VA POW protocol examination accomplished in September 1990 diagnosed the veteran as having an adjustment disorder with anxious mood of moderate severity. Another physician, on a summary sheet, indicated the veteran had PTSD with symptoms of intrusive thoughts of the war. An RO rating decision dated in November 1990 service-connected the veteran for an adjustment disorder with anxious mood, and assigned a 10 percent evaluation. As part of a VA physical examination accomplished in August 1991, the veteran was diagnosed as having chronic reactive depression that was related to him having life threatening cardiac pathology. In the same month a different VA physician diagnosed the veteran as having an adjustment disorder of moderate severity. The report of a VA psychiatric examination dated in October 1991 indicates a diagnosis of Hypochondriasis---which was based on the veteran's reaction to his heart pathology. The examiner indicated the diagnosis of adjustment disorder was no longer appropriate. Based on the report of a VA psychiatric evaluation accomplished in October 1991, and the other medical evidence of record, an RO rating decision dated in December 1991 termed the veteran's service-connected psychiatric disorder as chronic reactive depression with hypochondriasis and continued the 10 percent evaluation. Based on symptomatology contained in the reports of VA outpatient treatment records dated between June 1992 and June 1993, which indicated that the veteran was developing a panic disorder with agoraphobia, and which also indicated that he was always depressed and tired and in a constant state of anxiety about his heart defibrillator, an RO rating decision dated in August 1993 raised the veteran's evaluation from 10 to 70 percent. Additionally, it now termed the service-connected psychiatric pathology as chronic reactive depression with hypochondriasis with developing panic disorder with agoraphobia. The veteran underwent a VA psychiatric evaluation in November 1993. By history is was reported that the veteran was extremely active in civic and community projects in the past, but that since the malfunction of an installed heart defibrillator approximately one year ago, he had become most disturbed. It was indicated this was because he had lost confidence in the defibrillator and as a consequence had become reclusive, giving up all activities and refusing to travel. It was indicated that the veteran felt he had no control of events and was always depressed. The veteran recounted the traumatic experiences he underwent during World War II including being a POW for 20 months. It was indicated that he had flashbacks to these experiences now and then, but they were not his primary problem. The veteran's memory, orientation, insight and judgment were reported to be adequate. The examining physician saw the veteran as being obsessed with his heart situation, with some justification. Diagnosis was of PTSD, mildly symptomatic; and adjustment disorder with anxious mood. An RO rating decision dated in February 1994, kept the veteran's 70 percent evaluation, but now termed the pathology as chronic reactive depression with hypochondriasis, with developing panic disorder with agoraphobia, with mild PTSD. Disability evaluations for psychiatric symptomatology are based upon a comparison of clinical findings with the applicable schedular criteria. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Major depression and PTSD are rated under 38 C.F.R. Part 4, Diagnostic Codes 9405 and 9411 respectively. Psychiatric disorders not specified in the schedular criteria are rated under Code 9410. The rating criteria is the same for all of the above diagnostic codes. The disorders will not be individually rated so as to avoid the injunction against pyramiding contained in 38 C.F.R. § 4.14 (1994), which prohibits the assignment of individual ratings for the same manifestations under different diagnoses. The rating criteria contemplates the assignment of a 100 percent rating for psychiatric symptomatology which demonstrates that the attitudes of all contacts except the most intimate are so adversely affected as to result in virtual isolation in the community. Additionally, totally incapacitating psychoneurotic symptoms bordering on gross repudiation of reality with disturbed thought or behavioral processes associated with all daily activities such as fantasy, confusion, panic and explosions of aggressive energy resulting in profound retreats from mature behavior warrant a total rating if the veteran is demonstrably unable to obtain or retain employment. A 70 percent rating is warranted if the ability to establish and maintain effective or favorable relationships with people is severely impaired, or if the psychoneurotic symptoms are of such severity and persistence that there is severe impairment in the ability to obtain or retain employment. The report of the latest clinical evidence does not reflect the criteria necessary for a total schedular rating. The veteran's symptomatology clearly has not reached the level set forth in the criteria for a 100 percent rating, that is, although he has been reported to be obsessed with his heart pathology, there is no indication that he has totally incapacitating psychoneurotic symptoms bordering on gross repudiation of reality. Therefore the criteria for a total schedular rating cannot be met. However, VA regulations offer an alternative route for an award of a total rating based on interference with the veteran's ability to secure or maintain a substantially gainful occupation due to a mental disorder. That is, under the provisions of 38 C.F.R. Part 4, § 4.16(c) (1994), if a veteran's only compensable service-connected disability is a mental disorder, evaluated as 70 percent disabling, and such mental disorder precludes the veteran from securing or maintaining a substantially gainful occupation, he is entitled to a 100 percent evaluation under the appropriate diagnostic code regardless of whether he demonstrates the totally incapacitating symptoms necessary to warrant a 100 percent rating under the applicable schedular criteria. Substantially gainful employment for VA claims adjudication is that which is ordinarily followed by the nondisabled during a livelihood with earnings common to the particular occupation in the community where the veteran resides. Beaty v. Brown, 6 Vet.App. 532, 537 (1994). In the instant case, the evidentiary record discloses that the veteran has ceased almost all civic and social contacts and withdrawn from interaction with his fellow man. The record discloses that this is primarily due to his preoccupation with his health, but also due to some recurring thoughts of his wartime experiences. Since the veteran's diagnosed and service-connected psychiatric pathologies have been said to be the cause of the veteran's almost total social withdrawal from civic and community activities, and since this is indicative of a lifestyle which would prevent the veteran from assuming a productive role in the workplace, especially in the field for which he is trained (banking), it can be reasonably inferred that the veteran's service-connected psychiatric disorders prevent him from securing or maintaining a substantially gainful occupation. Accordingly, under the provisions of 38 C.F.R. § 4.16(c) a total rating is awarded for the veteran's service-connected psychiatric disorders. ORDER Service connection for heart pathology is denied. Service connection for residuals of malnutrition is denied. A total schedular disability rating for psychiatric pathology is granted subject to the law and regulations governing the award of monetary benefits. JAN DONSBACH 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.