Citation Nr: 0001423 Decision Date: 01/18/00 Archive Date: 01/27/00 DOCKET NO. 97-31 955A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Determination of a proper initial rating for service- connected scapulohumeral articulation, left shoulder, currently assigned a noncompensable evaluation. 2. Entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: AMVETS WITNESSES AT HEARING ON APPEAL The veteran and his wife ATTORNEY FOR THE BOARD Wm. Kenan Torrans, Associate Counsel INTRODUCTION The veteran served on active duty from June 1969 to December 1970. This matter arises from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois, which granted service connection for left shoulder scapulohumeral articulation, and denied service connection for PTSD. An initial noncompensable evaluation was assigned for the veteran's left shoulder scapulohumeral articulation. The veteran filed a timely appeal, in which he contends that his residuals of a left shoulder left shoulder disability warrants assignment of an initial compensable evaluation, and that service connection for PTSD is warranted because of traumatic events he experienced while serving in Vietnam. The case has been referred to the Board of Veterans' Appeals (Board) for resolution. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable resolution of the issue of entitlement to assignment of an initial compensable rating for scapulohumeral articulation, left shoulder have been obtained by the RO. 2. The veteran is left-hand dominant. 3. The veteran's scapulohumeral articulation, left shoulder is objectively shown to involve no more than a 20 degree loss of motion on external rotation with some evidence of pain on motion, and symptomatology most consistent with infrequent episodes of dislocation of the humerus at the scapulohumeral joint with guarding of movement only at shoulder level. 4. The veteran has been diagnosed with PTSD, and his claim for service connection for PTSD is supported by sufficient competent evidence to render the claim plausible and capable of substantiation. CONCLUSIONS OF LAW 1. The criteria for assignment of an initial 20 percent evaluation for the veteran's scapulohumeral articulation, left shoulder, have been met. 38 U.S.C.A. §§ 1155, 5107(a) (West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.1-4.14, 4.40, 4.45, 4.71a, Diagnostic Code 5202 (1999). 2. The veteran's claim for service connection for PTSD is well grounded. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.303 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Determination of Proper Initial Rating The preliminary question before the Board is whether the veteran has submitted a well-grounded claim within the meaning of 38 U.S.C.A. § 5107(a) (West 1991), and if so, whether the VA has properly assisted him in the development of his claim. An allegation that a service-connected disability has become more severe is sufficient to establish a well-grounded claim for an increased rating. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); Proscelle v. Derwinski, 2 Vet. App. 628, 632 (1992). Accordingly, the Board finds that the veteran has presented a claim that is well grounded. Moreover, an appeal from the initial assignment of a disability rating requires consideration of the entire time period involved, and contemplates staged ratings where warranted. See Fenderson v. West, 12 Vet. App. 119 (1999). Once a claimant has presented a well-grounded claim, the VA has a duty to assist him in developing facts which are pertinent to that claim. See 38 U.S.C.A. § 5107(a). The Board finds that all relevant facts have been properly developed, and that all evidence necessary for an equitable resolution of the issue on appeal has been obtained. The evidence includes the veteran's service medical records, records of medical treatment following service, a report of a VA rating examination, and a transcript of personal hearing testimony before the undersigned Board Member at the RO. The Board is not aware of any additional relevant evidence which is available in connection with the appeal on this issue. Therefore, no further assistance to the veteran regarding the development of evidence is required. See 38 U.S.C.A. § 5107(a); McKnight v. Gober, 131 F.3d 1483 (Fed. Cir. 1997). Disability evaluations are determined by evaluating the extent to which the veteran's service-connected disability affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 4.1, 4.2, 4.10 (1999). In addition, 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 required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7 (1999). Disability of the musculoskeletal system is primarily the inability, due to damage or infection of parts of the musculoskeletal system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examinations upon which ratings are based adequately portray anatomical damage and functional loss with respect to all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. See 38 C.F.R. §§ 4.40, 4.45 (1999). Under DeLuca v. Brown, 8 Vet. App. 202, 206-7 (1995), the Board, in addition to applying schedular criteria, may consider granting a higher evaluation in certain cases in which functional loss due to pain is demonstrated. A review of the record discloses that service connection was initially established for scapulohumeral articulation, left shoulder, by a December 1996 rating decision. He was initially assigned a zero percent evaluation, effective from March 19, 1996. Essentially, the veteran was found to have incurred a left shoulder disorder prior to service which involved frequent dislocations of the left shoulder. It was determined that the shoulder had been permanently aggravated by active service, given several instances of treatment for a dislocated shoulder in service, and service connection was granted on that basis. In support of his claim, the veteran submitted private clinical treatment records dating from March through October 1993 showing that he had been seen for having sustained a left dislocated shoulder. During that period he engaged in physical therapy in order to restore his full range of motion to the extent possible. It was noted that the veteran did not experience any significant pain following an arthrogram performed in October 1993. During hospitalization in December 1995 for disability other than the veteran's left shoulder, it was noted that on examination, the veteran had difficulty moving his left arm. Although the actual range of motion of the left shoulder was not reported in the discharge summary report, the Axis III diagnoses included "[f]rozen left shoulder." The veteran underwent a VA rating examination in April 1996. The examiner noted the veteran's history of having "thrown out" his left shoulder at age 16, and that he had been initially rejected for military service, but had later been inducted into the Army in 1969. He reported that the last instance of dislocation occurred in 1993 after sustaining a fall on some ice, and indicated that his shoulder had since become extremely painful. On examination, the veteran was found to have an essentially normal range of motion in his left shoulder. No bulging was noted and the axilla appeared to have normal depth. Pressure over the shoulder and upper arm elicited flinching of the musculature. In addition, the veteran jumped away complaining of pain with only minimal pressure. No crepitus or effusion was found in the left shoulder. Flexion and abduction were at 180 degrees without complaint. Internal rotation was 90 degrees bilaterally, while external rotation was 70 degrees on the left and 90 degrees on the right. Muscle strength in the upper extremities was 5/5 bilaterally. Aside from a 20-degree restriction of motion on external rotation, the veteran's range of motion was unimpaired. The examiner noted that he was unable to elicit the left triceps as the position was too uncomfortable for the veteran, and because he feared dislocating his shoulder, the maneuver was not completed. X- ray results showed no evidence of any fracture, bony destruction, or dislocation. No arthritis was noted. The examiner concluded with diagnoses of a recurrent left shoulder dislocation by history, manual reduction in 1993, and left shoulder strain with hyperesthesias of the upper left arm. In July 1999, the veteran and his wife appeared at a personal hearing before the undersigned Board Member at the RO in which they testified that the veteran was unable to perform normal working movements of his left arm and shoulder due to his service-connected left shoulder disorder. According to the veteran, he was able to carry things, but he was unable to perform certain movements for fear that his shoulder would dislocate. He reported that he was unable to engage in such activities as throwing balls, and his wife appeared to emphasize the fact that he was unable to engage in bowling. The veteran also emphasized that he should have never been inducted into the Army given the physical status of his left shoulder, and characterized himself as a "cripple" at the time he went to Vietnam. In addition, the veteran characterized his left shoulder pain as being worse than the pain associated with childbirth. The Board has evaluated the above discussed evidence, and concludes that after resolving all reasonable doubt in favor of the veteran, the evidence supports assignment of a 20 percent evaluation for his service-connected left shoulder scapulohumeral articulation. Under 38 C.F.R. § 4.71a, Diagnostic Code 5202 (1999), malunion of the humerus or other impairment involving moderate or marked deformity of the dominant extremity warrants assignment of 20 and 30 percent evaluations respectively. Recurrent dislocation of the humerus at the scapulohumeral joint with infrequent episodes, and guarding of movement only at the shoulder level warrants assignment of a 20 percent evaluation on either the major or minor extremity. Where there are frequent episodes of dislocation, and guarding of all arm movements in the major extremity, a 30 percent evaluation is warranted. Where there is a fibrous union of the humerus in the major extremity, a 50 percent evaluation is contemplated. Nonunion of the humerus (false flail joint) of the major extremity warrants assignment of a 60 percent evaluation, and a loss of the head of the humerus (flail shoulder) warrants assignment of an 80 percent evaluation. See id. After taking functional limitation due to pain into consideration as set forth in 38 C.F.R. §§ 4.40, 4.45; and DeLuca, supra, the Board concludes that the veteran's symptomatology most closely approximates the criteria for assignment of a 20 percent evaluation for infrequent episodes of dislocation of the humerus at the scapulohumeral joint with guarding of movement only at the shoulder level. See 38 C.F.R. § 4.71a, Diagnostic Code 5202. The veteran has not demonstrated any recent functional impairment of any significance, beyond 20 degrees of restricted motion on external rotation. However, he has consistently complained of severe pain and an inability to engage in certain activities out of fear of dislocating his left shoulder and has been shown to have dislocated his left shoulder on occasion. While the Board finds that the objective medical evidence fails to demonstrate an overall disability picture to the degree of severity as reported by the veteran, particularly regarding pain, he was shown to have episodes of shoulder dislocations in service, and most recently in 1993. As well, he was noted to have difficulty moving his left arm on VA hospitalization in 1995. Accordingly, the Board finds that after resolving all reasonable doubt in his favor, the evidence supports a finding that the veteran experiences infrequent episodes of recurrent dislocation of his shoulder. Even so, the Board observes that such periods of dislocation as demonstrated by the medical evidence presented cannot reasonably be characterized as "frequent" as set forth in Diagnostic Code 5202, despite statements and testimony to the contrary by the veteran and his wife. Therefore, assignment of a 30 percent evaluation is not warranted here. The Board further notes that the medical evidence fails to demonstrate that the veteran currently experiences any nonunion, malunion or loose motion at his clavicle or scapula, and is not shown to have any bony deformities in this area, as indicated by the X-ray report of April 1996. Accordingly, as any functional limitation due to pain has been considered, the Board finds that the preponderance of the evidence is against assignment of an evaluation in excess of 20 percent for the veteran's left shoulder scapulohumeral articulation under any other diagnostic code. In addition, the potential application of the various provisions of Title 38 of the Code of Federal Regulations (1999) have been considered. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). In this case, there has been no showing that the disability under consideration, a left shoulder disability, has caused marked interference with employment, has necessitated frequent periods of hospitalization, or otherwise renders impracticable the regular schedular standards. The Board recognizes that the veteran has issued statements that he is currently unemployed, but observes that in his personal hearing of July 1999, he testified that he owned and/or operated antique stores in various shopping malls which were actually run by other individuals. The Board also notes that while the veteran may not be able to engage in certain movements due to a fear of dislocating his shoulder, he is not shown by the evidence of record to have impairment of the left shoulder resulting in marked interference with employment. In this regard, the Board observes that the veteran does not appear to have undergone any treatment for his left shoulder since 1993. In the absence of factors suggestive of an unusual disability picture, further development in keeping with the procedural actions outlined in 38 C.F.R. § 3.321(b)(1) (1999) is not for consideration. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). II. Service Connection for PTSD The veteran has claimed entitlement to service connection for PTSD. In reviewing a claim for service connection, the initial question is whether the claim is well grounded. In this regard, the veteran must satisfy three elements. First, there must be evidence of an incurrence or aggravation of an injury in service. Second, there must be evidence (i.e. medical) of a current disability. Third, there must be evidence of a nexus between the in-service injury or disease and the current disability, as shown through the medical evidence. See Epps v. Gober, 126 F.3d 1464 (1997). Lay or medical evidence, as appropriate, may be used to substantiate the service incurrence. See Caluza v. Brown, 6 Vet. App. 498, 506 (1995); Layno v. Brown, 6 Vet. App. 465, 469 (1994). A well-grounded claim for service connection for PTSD has been submitted when there is "[1] medical evidence of a current [PTSD] disability; [2] lay evidence (presumed to be credible for these purposes) of an in-service stressor, which in a case involving PTSD is the equivalent of in-service incurrence or aggravation; and [3] medical evidence of a nexus between service and the current PTSD disability." See Cohen v. Brown, 10 Vet. App. 128 (1997) (citations omitted). The record shows that the veteran served as a clerk in the 25th (Americal) division from approximately January through December 1970 in the Republic of Vietnam. He was issued the National Defense Service Medal and the Vietnam Service and Campaign Medals upon completion of his tour in Vietnam. The veteran asserted that shortly before he was scheduled to return home, his base camp came under enemy rocket attack. He stated that the dispensary where several of his friends were located was destroyed and that seven of his friends were killed in the incident. In addition, the veteran maintains that another friend was killed in a helicopter crash, and that he viewed this individual some twelve hours prior to his death. The veteran asserts that the death of a friend, SP-4 [redacted], had resulted in his PTSD. He has alleged that he and Specialist [redacted] were to fly home together on board the "freedom bird," but that [redacted] was killed some two weeks before. He contended that this incident has had the greatest impact on his developing PTSD. In support of his claim for service connection for PTSD, the veteran has submitted medical treatment records dating from December 1995 through July 1996 showing that he was seen for psychiatric problems, and that he was noted to demonstrate symptoms of PTSD. In June 1996, the veteran was given a preliminary diagnosis of PTSD. A treatment note of July 1996 includes a social worker's impression that the veteran was somewhat conflicted over attending a Vietnam veterans "rap group" because he had been perceived as not having any credentials worthy of being considered a combat veteran. The social worker noted that the veteran had served as a "combat clerk" in a secure area, but that he reported having been exposed to mortar and rocket attacks, and that he had allegedly lost his best friend in Vietnam. Of greatest significance is a VA treatment record dated at some point in 1996 which includes an Axis I diagnosis of PTSD, which appears to be related to the veteran's experiences in Vietnam. In addition, a letter dated in July 1996 from Diana L. Appleton, LCSW, states that the veteran appeared to suffer from symptoms of PTSD. Such symptomatology included diminished interest in participation in family life, feelings of detachment from others, difficulty concentrating, and hypervigilance. Ms. Appleton stated that it was her opinion that the veteran should be considered as suffering from PTSD as a result of his service in Vietnam. In addition, the veteran submitted abstracts of the deaths of seven individuals who had served in the 25th (Americal) Infantry Division in Quang Tin Province in Vietnam in 1970. One of these individuals, [redacted], was a helicopter crewman who died from wounds incurred after his aircraft crashed in April 1970. The veteran claims to have viewed Sgt. [redacted] shortly before he died, and that it upset him a great deal. The remaining soldiers, [redacted], [redacted] [redacted], [redacted], [redacted], [redacted], and [redacted] were all killed on November 30, 1970. Their deaths are attributed to "misadventure," but no other information is given regarding the particulars of their deaths. The veteran asserts that they died after a dispensary was destroyed by enemy rockets, and that he became extremely upset after witnessing the aftermath of their deaths. As noted, he also maintains that he and his good friend, Specialist [redacted], were to leave Vietnam together on the "freedom bird" but that Specialist [redacted] was killed shortly before the departure time. In April 1996, the veteran underwent a VA rating examination in which he was noted to have reported experiencing symptoms of PTSD. However, the examiner concluded that the veteran did not meet the full criteria for a diagnosis of PTSD. The examiner noted that the veteran was unable to provide specific dates, places or other specifics of alleged traumatic events he claimed to have experienced in Vietnam. At the time of the examination, the veteran made much of being sent to Vietnam after his left shoulder disability precluded him from carrying a weapon, thus leaving him incapable of defending himself. The examiner stated that he was unable to elicit any of the characteristics or symptoms of PTSD from the veteran, and that given his inability to provide any specific information or what the examiner considered valid stressors, the veteran did not have PTSD. The examiner concluded with a diagnosis of a generalized chronic anxiety reaction, alcohol dependency by history, and an incomplete criteria for PTSD. The Board has reviewed this evidence, and concludes that the veteran has presented evidence of a well-grounded claim for service connection for PTSD. The Board finds that all elements for a finding of well-groundedness have been met. The 1996 VA treatment record and the July 1996 statement from Ms. Appleton appear to contain clear diagnoses of PTSD based on the veteran's military service. In addition, the Board accepts, for the limited purpose of well grounding the veteran's claim, the veteran's statements and testimony that he was exposed to stressful events during his tour of duty in Vietnam. Such events include being fired upon in an undocumented incident while in a guard tower, being subjected to mortar and rocket attacks, and allegedly witnessing a racially motivated shooting between two American soldiers in addition to witnessing the aftermath of the deaths of the aforementioned seven soldiers. As noted, the 1996 VA treatment record and the July 1996 statement from Ms. Appleton provide the possible nexus between the veteran's claimed exposure to traumatic events and his diagnoses of PTSD. Accordingly, the Board finds that the veteran has presented a claim that is well grounded. However, further development of evidence is required before a final disposition of this issue on appeal. This additional development will be addressed in the REMAND portion of this decision. ORDER Subject to the applicable laws and regulations governing the award of monetary benefits, an initial 20 percent evaluation for service-connected left shoulder scapulohumeral articulation is granted. The veteran's claim for service connection for PTSD is well grounded, and his claim with respect to that issue is granted to this extent only. REMAND Given that the veteran has presented evidence of a well- grounded claim for service connection, the Board observes that the VA has a further obligation to assist him in the development of evidence to support his claim. See 38 U.S.C.A. § 5103 (West 1991); McKnight v. Gober, 131 F.3d 1483 (Fed. Cir. 1997); Epps, 126 F.3d 1464. The veteran has presented medical records showing diagnoses of PTSD, and while there may be some issue as to whether these diagnoses are based on accurate or valid accounts of his stressor history, the veteran has, nonetheless, presented medical evidence establishing the required nexus between PTSD and his active service. See Cohen, 10 Vet. App. at 128. The record shows that the veteran served in Vietnam in the 25th (Americal) Infantry Division from approximately January 1970 to December 1970. His service personnel records show that he served as a clerk and as a light truck driver, and was assigned to the 23rd Administrative Replacement Detachment; HHC of the 123rd Aviation Battalion; and with Company "E" of the 723rd Maintenance Battalion. Specifically, the veteran has listed the following as his claimed stressors: 1) Shortly before he was due to return to the United States (CONUS), the veteran states that his area came under a rocket attack, and the base dispensary was destroyed. He has indicated that six friends were killed in the attack. These individuals are: Sergeant [redacted] [redacted], Specialist [redacted], Private First Class [redacted], Staff Sergeant [redacted], Specialist [redacted], and Staff Sergeant [redacted] [redacted]. The abstracts show that these individuals were all assigned to the 25th Infantry Division, and all died on November 30, 1970, in the Quang Tin Province of what was characterized as "misadventure." The veteran maintains that after emerging from his secure bunker following the enemy rocket attack, he observed the destroyed dispensary, and has testified that he witnessed dogs devouring bodies of those killed in the wreckage of the dispensary. 2) An alleged friend was killed as a result of a helicopter crash, and the veteran maintains that he viewed his mangled body some twelve hours before his death. The abstract provided by the veteran lists the individual as Staff Sergeant [redacted] [redacted] of the 25th Infantry Division. Sgt. [redacted] is shown to have been a helicopter crewman who died on April 8, 1970, of injuries sustained in a helicopter crash in Quang Tin Province. The veteran alleged having experienced other stressful incidents in Vietnam, but was unable to provide any specific details sufficient to allow for verification. The veteran appears to acknowledge that he was not involved in any combat, which is confirmed by his service personnel records (although he has characterized himself as having been a "combat clerk" and has testified that service in Vietnam gave him "shellshock"). In any event, the record shows that he did serve in the 25th Infantry Division as a clerk of some sort during the Vietnam War era, and he has produced abstracts of individuals who also served in the 25th Infantry Division, and who apparently died in Vietnam during the period that the veteran also served in-country. As the veteran has what can be characterized as clear diagnoses of PTSD which are related to his period of active service, verification of the occurrence of the claimed stressors from the United States Center for Research of Unit Records (USASCRUR) is required. See 38 C.F.R. § 3.304(f) (1999); Zarycki v. Brown, 6 Vet. App. 91, 93 (1993). In addition, in the event that the alleged stressors are verified, competent medical evidence is required to link any current PTSD symptomatology to the in-service stressor(s). In addition, the evidence must be able distinguish the degree to which the veteran's psychiatric symptomatology was caused by in-service stressors, and the extent to which the veteran's psychiatric problems were caused by other factors, such as his substance abuse problem or some other psychiatric disorder. It is therefore the opinion of the Board, that in the event the veteran's stressors can be verified, that the RO should refer the veteran's claims file to a panel of two VA board certified psychiatrists, to review the claims file, and all the medical evidence associated with it, in order to make those determinations. Therefore, this case is REMANDED for the following action: 1. The RO should attempt to verify the occurrence of the purported stressors, and to the extent possible, the facts and circumstances surrounding the deaths of the above-named seven individuals, through the United States Center for Research of Unit Records (USASCRUR), 7798 Cissna Road, Suite 101, Springfield, Virginia 22150-3197. In addition, the RO is requested to attempt to determine, to the extent possible, the locations where the above-named seven individuals were killed in relation to the veteran's documented area(s) of operations at those specific times. In this regard, the veteran's statements (or the RO's summary of the pertinent information contained therein), copies of the veteran's service personnel records, and a copy of his record of service (DD Form-214) should be forwarded to USASCRUR. 2. The veteran should be examined by a panel of two VA board certified psychiatrists who have not previously treated or examined him, to determine the nature and extent of any current psychiatric disorder. Each psychiatrist should conduct a separate examination and correlate their findings. The examination reports should contain detailed accounts of all manifestations of psychiatric pathology found to be present. If there are different psychiatric disorders, the panel should reconcile the diagnoses and should specify which symptoms are associated with each disorder. If certain symptomatology cannot be disassociated from one disorder or another, it should be specified. The entire claims folder, and a copy of this remand must be made available to and reviewed by the examiners prior to the examinations. The examiners are informed that any diagnosis reached should conform to the psychiatric nomenclature and diagnostic criteria contained in DSM-IV. If the veteran is found to have PTSD, the examiners are requested to identify the diagnostic criteria supporting the diagnosis. Any necessary special studies or tests, including psychological testing, should be accomplished. The examiners should express an opinion as to the etiology of any psychiatric disorder diagnosed and the likely onset of any psychiatric disorder(s) found. Should PTSD be found, the examiners should report the circumstances of the veteran's independently verified stressors, and determine whether it is at least as likely as not that the diagnosed PTSD is related to service. A complete rationale for all opinions and conclusions expressed should be given. 3. After the examinations have been completed, the RO should review the examination reports to insure that they comply with the directives of this remand. Any examination report failing to comply with the directives of this remand should be returned for corrective action. 4. The RO should then adjudicate the veteran's claim for service connection for PTSD. If the benefit sought on appeal is not granted, the veteran and his representative should be furnished with a supplemental statement of the case wherein all pertinent statutes and regulations must be fully set forth. The veteran and his representative should then be afforded an opportunity to respond before the case is returned to the Board for further action. The purpose of this REMAND is to obtain additional information and development, and to ensure that all due process requirements have been met. The Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable at this time. The veteran is free to submit any additional evidence he desires to have considered in connection with his current appeal. Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the veteran until he is notified. S. L. KENNEDY Member, Board of Veterans' Appeals