Citation Nr: 0006783 Decision Date: 03/14/00 Archive Date: 03/17/00 DOCKET NO. 93-01 033 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California THE ISSUES 1. Entitlement to a compensable rating for the service- connected postoperative residuals of fracture of the right tibia and fibula. 2. Whether new and material evidence has been received to reopen a claim for service connection for post-traumatic stress disorder (PTSD). WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Scott Craven INTRODUCTION The veteran had active military service from October 1971 to November 1975. The record shows that his decorations included the Combat Action Ribbon. The Board of Veterans' Appeals (Board) initially received this case on appeal from an August 1991 decision of the RO, which determined that new and material evidence had not been submitted to reopen the veteran's claim for service connection for PTSD and denied his claim for an increased rating for the service-connected postoperative residuals of fracture of the right tibia and fibula. In November 1994, the Board remanded the case for further development. However, the RO was unable to contact the veteran and the veteran has not contacted VA to provide information as to his whereabouts. FINDINGS OF FACT 1. The RO has complied with the Board's prior remand instructions to the fullest extent possible. 2. There is no current evidence of record demonstrating that the veteran's service-connected postoperative residuals of fracture of the right tibia and fibula are manifested by ankylosis, recurrent subluxation or lateral instability, semilunar cartilage, flexion limited to 45 degrees or more, extension limited to 10 degrees or more, functional loss due to pain or weakness, or malunion or nonunion of the tibia and fibula. 3. In a May 1990 decision, the Board denied the veteran's claim for service connection for an acquired psychiatric disorder, to include PTSD, finding that it was not incurred in or aggravated by service. 4. New evidence that has been associated with the claims file since the Board's May 1990 decision, including additional service medical records, is relevant and probative of the issue under consideration and is so significant that it must be considered to fairly decide the merits of the claim. 5. Inasmuch as the record appears to reflect that the veteran has alleged experiencing at least one in-service stressful experience, and includes diagnoses of PTSD associated with military service, the veteran's claim for service connection for PTSD is plausible. 6. There is no clinically supported diagnosis of PTSD of record, or nexus between any current psychiatric symptoms and a specific stressor; as the veteran's whereabouts are currently unknown, further development on this question is not possible. CONCLUSIONS OF LAW 1. The criteria for the assignment of a compensable rating for the service-connected postoperative residuals of fracture of the right tibia and fibula have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.1, 4.2, 4.31, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5256, 5257, 5258, 5259, 5260, 5261, 5262 (1999). 2. The Board's May 1990 decision denying the veteran's claim for service connection for an acquired psychiatric disorder, to include PTSD, is final. 38 U.S.C.A. §§ 7013, 7104(b) (West 1991 & Supp. 1999); 38 C.F.R. § 20.1100 (1999). 3. New and material evidence has been presented, and the claim for service connection for PTSD is reopened. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. §§ 3.156, 20.1105 (1999). 4. The claim for service connection for PTSD is well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 5. The criteria for establishing service connection for PTSD have not been met. 38 U.S.C.A. §§ 1110, 1131, 1154(b), 5107(a) (West 1991); 38 C.F.R. §§ 3.303, 3.304(f) (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION I..Compliance with the Board's Prior Remand As noted above, in November 1994, the Board remanded both issues on appeal to the RO for further development. The Board requested that the RO contact the veteran for additional information to enable it to procure the veteran's outstanding service medical records; obtain and associate with the record outstanding VA treatment and hospitalization records from VA and other facilities; and having the veteran undergo psychiatric and orthopedic examinations. As alluded to in the remand, the psychiatric examination was needed to ascertain whether the veteran's diagnosis of PTSD was, in fact, valid (to include whether a specific stressor supported the diagnosis). The orthopedic examiner was needed, in part, because the veteran's right leg had not been examination for many years for disability evaluation purposes. The record reflects that the RO attempted, on numerous occasions, to contact the veteran to facilitate the development requested in the Board's remand. The RO's actions in this regard included mailing of letters to his last known address, the Department of Corrections, and the Los Angeles County Jail. The RO also contacted the Office of the State Registrar of Vital Statistics to determine whether the veteran had passed away; however, that office responded to the there was no such record relating to the veteran. In Stegall v. West, 11 Vet. App. 268 (1998), the Court held that a remand by the Board confers on the veteran, as a matter of law, the right to compliance with the remand orders. The Court also held that where the remand orders of the Board are not complied with, the Board itself errs in failing to insure compliance. However, in Hyson, 5 Vet. App. 262, 265 (1993), the Court held that it is the burden of the veteran to keep the VA apprised of his whereabouts. If he does not do so, there is no burden on the part of VA to turn up heaven and earth to find him. See also Wood, 1 Vet. App. 190 (1991). On remand, the RO was able to obtain outstanding VA treatment records and additional service medical records without the veteran's assistance. As regards the remaining development, to include the procurement of outstanding non-VA medical records, and having the veteran undergo the requested psychiatric and orthopedic examination, the Board was unable to complete such development because the veteran did not respond to any of its letters and his whereabouts are presently unknown. Accordingly, the Board finds that the RO made all reasonable efforts, although unsuccessfully, to contact the veteran in order to assist him in the development of the record, and that the Board's remand has been complied with to the fullest extent possible. As there is no further duty to assist the veteran in developing the evidence pertinent to his claims, review of the issues on appeal will be accomplished on the basis of the current record. II. Compensable Rating for Service-Connected Postoperative Residuals of Fracture of the Right Tibia and Fibula Initially, the Board determines that the veteran's claim for a compensable rating is well grounded within the meaning of 38 U.S.C.A. § 5107(a). That is, he has presented "a plausible claim, one which is meritorious on its own or capable of substantiation." Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). A claim that a service-connected condition has become more severe is well grounded where the claimant asserts that a higher rating is justified due to an increase in severity. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); Proscelle v. Derwinski, 2 Vet. App. 629, 631-632 (1992). Disability evaluations are determined by comparing a veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The veteran's entire history is reviewed when making disability evaluations. See generally 38 C.F.R. 4.1.; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). However, the current level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Further, when evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The veteran's service medical records show that, on discharge examination in November 1975, the veteran was reported to have a healed fracture of the right tibia and fibula. On VA examination in March 1982, the veteran was diagnosed, in part, with old, healed fractures of the right tibia and fibula. In August 1987, a VA outpatient treatment record reported that the veteran had a normal right knee with no effusion and no erythema. He was diagnosed with status post-right ankle sprain. During a hearing at the RO in March 1992, the veteran reported that his right leg would swell up every now and then. In May 1993, VA medical center records indicated that the veteran reported that he had severe pain in his left knee and that this prevented him from bearing any weight on the left lower extremity. He was diagnosed with tibial plateau fracture. There was no report of complaint, treatment or diagnosis relating to his service-connected postoperative residuals of fracture of the right tibia and fibula. The veteran's service-connected postoperative residuals of fracture of the right tibia and fibula are currently rated as noncompensably disabling pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5262. Under that diagnostic code, malunion of the tibia and fibula, with slight knee or ankle disability, warrants a 10 percent evaluation. Malunion of the tibia and fibula, with moderate knee or ankle disability, warrants a 20 percent evaluation. Malunion of the tibia and fibula, with marked knee or ankle disability, warrants a 30 percent evaluation. Nonunion of the tibia and fibula, with loose motion requiring brace, warrants a 40 percent evaluation. The medical evidence of record demonstrates that the veteran has a healed fracture of the tibia and fibula. There is no report of malunion or nonunion of the tibia and fibula. Applying the relevant rating criteria to the evidence of record, the Board finds that there is no basis for the assignment of a compensable rating for the service-connected postoperative residuals of fracture of the right tibia and fibula under Diagnostic Code 5262. The rating schedule authorizes the assignment of a zero percent (noncompensable) evaluation in every instance, such as this, in which the rating schedule does not provide such an evaluation and the requirement for a compensable evaluation are not met. 38 C.F.R. § 4.31. The Board also finds that no other potentially applicable diagnostic code provides a basis for a compensable evaluation for the veteran's service-connected postoperative residuals of fracture of the right tibia and fibula. Even considering conceivable functional loss due to pain or weakness, there is no evidence that veteran has, or has right knee disability comparable to, ankylosis, recurrent subluxation or lateral instability, semilunar cartilage, flexion limited to 45 degrees or more, or extension limited to 10 degrees or more so as to warrant assignment of a compensable evaluation under Diagnostic Codes 5256, 5257, 5258, 5259, 5260 and 5261, respectively. See also DeLuca v. Brown, 8 Vet. App. 202, 206 (1995); 38 C.F.R. §§ 4.40, 4.45 (1999). For the foregoing reasons, the Board finds that a compensable evaluation for the service-connected postoperative residuals of fracture of the right tibia and fibula is not warranted under any of the aforementioned diagnostic codes. There also is no showing that the veteran's postoperative residuals of fracture of the right tibia and fibula reflect so exceptional or unusual a disability picture as to warrant the assignment of an increased evaluation on an extra- schedular basis. The veteran's problems relating to the service-connected disability are not shown to warrant frequent periods of hospitalization or to otherwise render impractical the application of the regular schedular standards. Thus, in the absence of evidence of such factors as those noted above, a compensable rating on an extraschedular basis is not warranted and the Board is not required to remand this matter to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1). See Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 98 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). II. Service Connection for PTSD A. Whether New and Material Evidence Has Been Presented to Reopen the Claim Service connection may be granted for disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110; 1131; 38 C.F.R. § 3.303(a). Service connection for PTSD requires medical evidence establishing a clear diagnosis of the disorder, credible supporting evidence that the claimed in-service stressor(s) actually occurred, and a link, established by medical evidence, between current symptomatology and the claimed in- service stressor. 38 C.F.R. § 3.304(f). The Board initially denied service connection for an acquired psychiatric disorder, to include PTSD, in a May 1990 decision. At that time, the pertinent evidence before the Board included the veteran's service medical records; the report of a December 1977 VA examination; private medical records from the California Department of Corrections, reflecting treatment in January 1979; a March 1979 private medical record from Dieter Poiser, Ph.D.; the report of a March 1982 VA examination; VA treatment records, reflecting treatment from May 1981 to April 1988; and lay statements by the veteran. The service medical records show that, on discharge examination in November 1975, the veteran was reported to be psychiatrically normal. In October 1982, a VA outpatient treatment record diagnosed the veteran with psychosis with depression and delayed, chronic PTSD. The Board, in the May 1990 decision, determined that the veteran's diagnosis of PTSD had not been supported by the clinical findings throughout the record and found that an acquired psychiatric disorder, to include PTSD, had not been incurred in or aggravated by service. Following an attempt to reopen the claim, in August 1991, the RO determined that new and material evidence to reopen the veteran's claim for service connection for PTSD had not been submitted. The veteran subsequently timely perfected an appeal. Because this case involves an attempt to reopen a previously denied claim, the laws and regulations pertaining to finality and reopening of claims are pertinent to the appeal. When the Board disallows a claim, the disallowance is final unless the Chairman determines that reconsideration is warranted, or another exception to finality applies. Otherwise, no claim based upon the same factual basis shall be considered. See 38 U.S.C.A. §§ 7103, 7104; 38 C.F.R. § 20.1100. Thus, the Board notes that the May 1990 Board decision, which denied the veteran's claim for service connection for an acquired psychiatric disorder, to include PTSD, is final. If, however, new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 38 U.S.C.A. § 5108. In Elkins v. West, 12 Vet. App. 209 (1999) (en banc), the United States Court of Appeals for Veterans Claims (hereinafter the Court), held that the United States Court of Appeals for the Federal Circuit (Federal Circuit), in Hodge v. West, 155 F.3d 1356 (Fed Cir 1998), articulated a three- step process for consideration of a previously denied claim: first it must be determined whether new and material evidence has been presented under 38 C.F.R. § 3.156(a); second, if new and material evidence has been presented, immediately upon reopening, it must be determined whether, based upon all the evidence and presuming its credibility, the claim as reopened is well grounded pursuant to 38 U.S.C.A. § 5107(a); and third, if the claim is well grounded, the adjudicator may evaluate the merits after ensuring the duty to assist under 38 U.S.C.A. § 5107(b) has been fulfilled. See also Winters v. West 12 Vet. App. 203 (1999) (en banc). "New and material" evidence is evidence not previously submitted, cumulative or redundant, and which by itself, or along with evidence previously submitted, is so significant that it must be considered to fairly decide the merits of the claim. 38 C.F.R. § 3.156 (a). In determining whether the evidence is new and material, the credibility of the newly presented evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510 (1992). Consideration must be given to all of the evidence received since the last disallowance of these claims on any basis, or, in this case, since the Board's May 1990 decision. Evans v. Brown, 9 Vet. App 273, 282-83 (1993). The evidence associated with the claims file since the May 1990 Board decision consists of additional service medical records; VA treatment records, reflecting treatment from February 1982 to December 1994; testimony from a March 1992 personal hearing at the RO; and lay statements by the veteran. Specifically, received in May 1995 were additional service medical records, which included the veteran's August 1971 entrance examination. The veteran was reported to be psychiatrically normal. Also, on VAMC records, reflecting treatment from August 1991 to September 1991, the veteran was reported to have had six tours of Vietnam in service that resulted in PTSD. He was reported to have recurrent flashbacks and nightmares from the Vietnam era. The veteran was diagnosed, in part, with PTSD. In addition, on VAMC records, reflecting treatment from September 1994 to October 1994, the veteran was reported to have spent 35 months in Vietnam and to have experienced flashbacks and to have indicated that he experienced flashbacks and nightmares secondary to PTSD. The veteran was diagnosed, in part, with PTSD. This evidence is "new" because it was not physically of record when the Board denied his claim in May 1990 and it was not otherwise cumulative or redundant of the evidence that was on file at the time of that decision. Furthermore, the Board finds that some of this new evidence, particularly the newly submitted service medical records, is relevant and probative and is so significant that it must be considered to fairly decide the merits of the veteran's claim. That is, it is "material." See 38 C.F.R. § 3.156(a), (c); Hodge, supra. Thus, since new and material evidence has been submitted, the veteran's claim for service connection for PTSD is reopened and must be considered on a de novo basis. Having reopened the veteran's claim for service connection for PTSD, the Board must next determine whether the claim is well grounded; and, if so, whether the record, as a whole, presents a basis for allowance of the claim. See Elkins, 12 Vet. App. at 218-19. The veteran claims, in essence, that he currently has PTSD due to disease or injury incurred in or aggravated by service. He also claims that he was a part of a fighter squadron in service. As alluded to in the prior remand, the veteran has been vague in alleging specific stressful experience(s) in service. However, close review of his statements reveals a suggestion that he was subject to mortar and rocket attacks in service. The service medical records show that, on entrance examination, in August 1971, and on discharge examination, in November 1975, the veteran was reported to be psychiatrically normal. The veteran's DD Form 214 shows that he received the Combat Action Ribbon. It also shows that his related civilian occupation was as a chef or cook. On VA examination in December 1977, the veteran was reported to be psychiatrically normal. In January 1979, private medical records from the California Department of Corrections reported that the veteran admitted to hearing explosions and voices telling him that he was going to be taken back to Vietnam. The veteran was reported to indicate that he had experienced a rocket attack in service. On VA examination in March 1982, the veteran was diagnosed, in part, with paranoid type schizophrenia, in partial remission, and history of drug addiction. As noted above, VAMC records, reflecting treatment from August 1991 to September 1991, indicated that the veteran reported having had six tours of Vietnam in service which resulted in PTSD. He was reported to have recurrent flashbacks and nightmares from the Vietnam era. The veteran was diagnosed with alcohol dependence, paranoid type schizophrenia and PTSD. Also, VAMC records, reflecting treatment from September 1994 to October 1994, indicate that the veteran spent 35 months in Vietnam and to have experienced flashbacks and that he reported experiencing flashbacks and nightmares secondary to PTSD. The veteran was diagnosed with alcohol and cocaine dependence and PTSD. During his hearing at the RO in March 1992, the veteran reported that he had heard voices and had had flashbacks. Because there are diagnosis of PTSD of record, some of which appear to be associated with the veteran's military service, and the veteran appears to have alleged experiencing at least one specific stressor (mortar and rocket attacks) during service, the Board determines that the claim is, at least, plausible, and hence, well grounded. See 38 U.S.C.A. § 5107(a); Patton v. West, 12 Vet. App. 272, 276-277 (1999). That notwithstanding, the claim must be denied on the merits. While VA treatment records have included references to PTSD, there is no clinically supported diagnosis of PTSD of record. The outpatient treatment records do not include any indication of the specific stressor underlying the diagnosis, or that the other diagnostic criteria adopted by VA (set forth in the Fourth Edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders) have been met. See 38 C.F.R. § 4.125. Significantly, the report of the single full psychiatric examination of record (conducted in March 1982) does not include a diagnosis of PTSD; instead, the examiner diagnosed paranoid type schizophrenia, in partial remission, and history of drug addiction. Furthermore, because the records reflecting diagnoses of PTSD do not include reference to a specific stressor underlying the diagnosis of PTSD, the record also includes no medical evidence of a nexus, or link, between the specific stressor underlying the diagnosis and the veteran's symptoms. Although some VA reports indicate the veteran has experienced flashbacks and nightmares, these symptoms have not been linked to a specific stressor (sufficient to cause PTSD); hence, this requirement of 38 C.F.R. § 3.304(f), pursuant to which service connection for PTSD must be established, has not been met. The Board emphasizes that the above-referenced deficiencies in the record, in part, prompted the Board's 1994 remand of this matter. As explained above, however, some of the needed additional development, including having the veteran undergo comprehensive psychiatric examination could not be accomplished because the veteran's whereabouts were, and still are, unknown. Under these circumstances, another remand of this matter is not warranted. Because of the denial of this claim for the reasons set forth above, the Board need not address whether the veteran engaged in combat with the enemy, or whether the occurrence of the single in-service stressful experience surmised from the record is established. See 38 U.S.C.A. 1154(b); 38 C.F.R. § 3.304(f); Cohen v. Brown, 10 Vet. App. 128, 146-47 (1997); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). In reaching the determination to deny the claim, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the veteran's claim for service connection for PTSD, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 1991); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991). ORDER A compensable disability evaluation for the veteran's service-connected postoperative residuals of fracture of the right tibia and fibula is denied. The petition to reopen the claim for service connection for PTSD is granted. As evidence of a well-grounded claim for service connection for PTSD has been submitted, the appeal is allowed to this extent. The claim for service connection for PTSD is denied. JACQUELINE E. MONROE Member, Board of Veterans' Appeals