Citation Nr: 0000062 Decision Date: 01/04/00 Archive Date: 12/28/01 DOCKET NO. 96-05 433 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for an upper gastrointestinal disorder, claimed as a stomach condition. 2. Entitlement to an increased rating for depressive neurosis, currently evaluated as 50 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and daughter ATTORNEY FOR THE BOARD S.M. Cieplak, Associate Counsel INTRODUCTION The veteran served on active duty from April 1943 to September 1945. This appeal comes before the Board of Veterans' Appeals (Board) on appeal from an April 1995 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which denied the benefits sought on appeal. FINDINGS OF FACT 1. All evidence necessary for an equitable disposition of the veteran's claim has been developed by the RO. 2. The claim of entitlement to service connection for an upper gastrointestinal disorder, claimed as a stomach condition is supported by cognizable evidence demonstrating that the claim is plausible or capable of substantiation. 3. The veteran's depressive neurosis disability is mild to moderately disabling and does not manifest symptomatology warranting evaluation in excess of the assigned rating under the old and new criteria. CONCLUSIONS OF LAW 1. The claim of entitlement to service connection for an upper gastrointestinal disorder, claimed as a stomach condition, is well grounded. 38 U.S.C.A. § 5107 (West 1991). 2. The criteria for an evaluation in excess of 50 percent for a depressive neurosis have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.1, 4.7, 4.10, 4.132, Diagnostic Code 9405 (1996); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9400 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Gastrointestinal Disorder A prior Board decision of July 1974, inter alia, denied entitlement to service connection for a gastrointestinal disorder. It is well to note that a final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C. §§ 5108, 7104(b). When a veteran seeks to reopen a final decision based on new and material evidence, a three-step analysis must be applied. Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998); Winters v. West, 12 Vet. App. 203 (1999); Elkins v. West, 12 Vet. App. 209 (1999). The first step is to determine whether new and material evidence has been received under 38 C.F.R. § 3.156(a). Secondly, if new and material evidence has been presented, then immediately upon reopening the veteran's claim, the VA must determine whether the claim is well- grounded under 38 U.S.C.A. § 5107(a). In making this determination, all of the evidence of record is to be considered and presumed to be credible. Robinette v. Brown, 8 Vet. App. 69, 75-76 (1995). Third, if the claim is found to be well grounded, then the merits of the claim may be evaluated after ensuring that the duty to assist under 38 U.S.C.A. § 5107(a) has been met. Nevertheless, in the context of the current claim, new and material evidence has been received, and even a medical opinion associating the condition to service has been received. Thus, the claim in this instance is reopened. Moreover, as all the elements of a well grounded claim set out in Caluza v. Brown, 7 Vet. App. 489, 506 (1995), aff'd, 78 F.3d. 604 (Fed. Cir. 1996) (table), are present here, the claim is also well grounded. As the duty to assist is triggered by a well-grounded claim, the Board finds that VA has an obligation to clarify certain medical evidence as set forth in the below Remand. See Grivois v. Brown, 5 Vet. App. 136, 140 (1994). Depressive Neurosis As a preliminary matter, the Board finds that the appellant's claim of entitlement to an increased evaluation for depressive neurosis is "well grounded" within the meaning of 38 U.S.C.A. § 5107(a). 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). The Board also is satisfied that all relevant facts have been properly and sufficiently developed with regard to this issue. Disability evaluations are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R. Part 4 (1999). The Board attempts to determine the extent to which the veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10. Regulations require that, where there is a question as to which of two evaluations is to 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. 38 C.F.R. § 4.7. Psychiatric disabilities are rated under the portion of the Schedule for Rating Disabilities that pertains to mental disorders. The Board notes that the regulations pertaining to mental disorders were revised. Prior to November 7, 1996, PTSD was rated under 38 C.F.R. § 4.132 (1996). Effective November 7, 1996, the rating schedule for mental disorders was amended and redesignated as 38 C.F.R. § 4.130. 61 Fed. Reg. 52700 (Oct. 8, 1996). Therefore, the veteran's claim for an increased rating for psychiatric disability will be evaluated under both the new and old law. See Karnas v. Derwinski, 1 Vet. App. 308 (1991) [where the law or regulation governing the case changes after a claim has been filed or reopened, but before the administrative or judicial appeal has been concluded, the version most favorable to the veteran will apply]. The April 1999 supplemental statement of the case reflects that both sets of rating criteria were applied to the veteran's claim in this instance. Accordingly, the veteran will not be prejudiced if the Board proceeds with appellate consideration of the claim presented. See Bernard v. Brown, 4 Vet. App. 384 (1993). Before November 7, 1996, the VA Schedule for Rating Disabilities provided that Psychoneurotic Disorders be rated as follows: 100% The attitudes of all contacts except the most intimate are so adversely affected as to result in virtual isolation in the community. Totally incapacitating psychoneurotic, symptoms bordering on gross repudiation of reality with disturbed thought or behavioral processes associated with almost all daily activities such as fantasy, confusion, panic and explosions of aggressive energy resulting in profound retreat from mature behavior. Demonstrably unable to obtain or retain employment. 70% Ability to establish and maintain effective or favorable relationships with people is severely impaired. The psychoneurotic symptoms are of such severity and persistence that there is severe impairment in the ability to obtain or retain employment. 50% Ability to establish or maintain effective or favorable relationships with people is considerably impaired. By reason of psychoneurotic symptoms the reliability, flexibility and efficiency levels are so reduced as to result in considerable industrial impairment. 38 C.F.R. § 4.132, Diagnostic Code 9405. Words such as "mild", "considerable" and "severe" were not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just". 38 C.F.R. 4.6. It should also be noted that use of terminology such as "severe" by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 U.S.C.A. § 7104 (West 1991); 38 C.F.R. §§ 4.2, 4.6. From November 7, 1996, the VA Schedule for Rating Disabilities was amended. The pertinent provision now reads as follows: 100% Total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions of hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation or own name. 70% Occupational and social impairment, with deficiencies in most areas, such as work, school, family relations judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near- continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence) spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. 50% 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 effective work and social relationships. 38 C.F.R. § 4.130, Diagnostic Code 9400 (1999). In accordance with 38 C.F.R. §§ 4.1, 4.2 (1999) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed the service medical records and all other evidence of record pertaining to the history of the veteran's service- connected disability. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is inadequate for rating purposes. The Board is of the opinion that this case presents no evidentiary considerations, except as noted below, which would warrant an exposition of the remote clinical histories and findings pertaining to the disability at issue. The Board notes that following discharge from service, the veteran's mental disorder was characterized as a psychoneurosis with a prominent anxiety component. The Board additionally notes that the veteran's psychiatric symptomatology includes findings relating to organic brain syndrome, settled by July 1974 Board decision as not service connected. An August 1995 mental disorders examination reported the veteran as circumstantial in providing history. He was discharged from a hospital stay in June 1994 with a diagnosis of organic brain syndrome and bipolar disorder. He reported diminished memory for the prior 5 years. The examiner commented that the veteran was remarkable for a "virtual empty mental content, his circumstantiality and his confusion". The diagnosis was organic brain syndrome, with diminished memory, concrete thinking and confusion. The examiner felt the probable basis was alcoholism although arteriosclerotic cerebrovascular disease with minor strokes could not be eliminated on the basis of information provided by the veteran. A follow-up mental disorders examination was afforded in March 1997. The examiner reported the veteran as not grossly psychotic. His mood was moderate to mildly depressed. He was quite anxious during the interview. Axis I diagnosis was general anxiety disorder, chronic, possible dementia, etiology undetermined although it sounded as if he had some evidence of cerebral atrophy. There was no substantial history of head trauma or substance abuse. On Axis II, hysterical personality disorder features or histrionic personality disorder was noted with fugue, stated amnesia, and rather dramatic demonstrations of his feelings. The global assessment of functioning was reported as 25. The examiner reported that the veteran's anxiety disorder had existed since at least 1945, perhaps only getting worse with time. In June 1997, a supplemental report was provided by the examiner who performed the March 1997 mental disorders examination to ascertain which aspects of his mental pathology were related to his service connected disability. The examiner commented that speaking in streams of consciousness and being circumstantial were unrelated to his anxiety disorder. Inability to calculate was unrelated to anxiety. Failure to know general fund information in certain cases was unrelated to anxiety. Inability to interpret proverbs was unrelated to anxiety. The examiner concluded that a great proportion of his mental status abnormalities was probably related to a dementing process rather than the service connected disability. His inability to function was, likewise, not a function of the anxiety disorder. Furthermore, the lack of competence to manage funds was not related to his service connected disability. His termination of employment in 1972 was more likely related to organic mental disorder. The examiner concluded that cerebral atrophy and early dementia were diagnosed as much as 25 years earlier. The veteran's service connected psychiatric disorder has been characterized as generalized anxiety disorder that included a depressive component. The Board recognizes that the veteran suffers from a severe mental impairment; however, the evidence shows that the majority of his mental pathology has been attributed to conditions other than his service connected anxiety disorder. Additionally, a personality disorder is not a disability for VA compensation purposes and may not be service-connected. 38 C.F.R. § 3.303(c) (1999). Symptomatology attributable to the veteran's service connected disability has been characterized as "mild to moderate" and does not approximate severe impairment of the ability to maintain effective or favorable relationships with people nor is of such severity and persistence that there is severe impairment in the ability to obtain or retain employment. Likewise, the service connected disorder is not manifested by occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking or mood, due to such symptoms as suicidal ideation; obsessional rituals which interfere with routine activities; speech that is intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. The Board observes that testimony was received at a hearing before the RO in October 1995 to the effect that the veteran has abusive and violent tendencies. Nevertheless, even if such tendencies were attributable to the service connected disability, other mental deficiencies listed under the new evaluation criteria for a 70 percent evaluation have been attributed to non service connected pathology, thus precluding assignment of a higher evaluation. Accordingly, the preponderance of the evidence is against assignment of a higher evaluation. See also Espiritu. There is no competent evidence of record which indicates that the veteran's depressive neurosis has caused marked interference with employment beyond that which is contemplated under the schedular criteria, or that anxiety reaction has been the cause of inpatient care. The Board notes that the veteran's hospitalizations have been for other disability. Thus, the RO did not abuse its discretion in not forwarding this case to the Director of the VA Compensation and Pension Service for consideration of an extraschedular evaluation under the provisions of 38 C.F.R. § 3.321(b)(1) (1999). Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). There is nothing in the evidence of record to indicate that the application of the regular schedular standards is impractical in this case. See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996). ORDER The claim for entitlement to service connection for a gastrointestinal disorder, claimed as a stomach disorder, is well grounded and to this extent the appeal is granted. Entitlement to increased evaluation for depressive neurosis is denied. REMAND The veteran has advanced his claim for entitlement to service connection for a stomach condition principally on the basis of his symptomatology in service and also on the theory that his condition resulted from an episode of hookworm in service. Service records from 1945 show the veteran briefly complained of a burning sensation in his stomach along with belching but reported symptomatology did not include gastroesophageal reflex and otherwise apparently resolved after a brief period. Gastrointestinal (GI) findings on physical examination were negative. In 1970, the veteran was hospitalized for an acute psychiatric condition and an upper GI performed at that time showed stricture of the lower portion of the esophagus. Regurgitation was felt secondary to a hiatal hernia. A laparotomy was performed along with hiatal hernia repair in December 1970. In August 1973, the veteran was diagnosed with cerebral atrophy causing dementia. A small hiatal hernia was noted on GI X-rays, with a dilated distal esophagus, unchanged from 1971, In March 1990, clinical tests showed a normal esophagus and duodenum with moderate erythematous gastritis. The stomach contained excess secretions, bile and food residue. In November 1990, clinical tests showed continued pathology. A VA examination was conducted in March 1997. The veteran complained that a burning sensation in his stomach began in service. The examiner noted prior esophagogastroduodenoscopy, which showed esophagitis and erythema of the stomach mucosa and diagnosed, in pertinent part, gastroesophageal reflux disease. The examiner commented that the condition was likely related to service. In April 1998, another VA examination was conducted. The veteran reported regular symptoms of indigestion, frequent emesis and heart burn, gradually increasing over the years. The examiner noted frequent regurgitation and severe reflux disease. The examiner offered the opinion that it was more likely than not that the gastroesophageal pathology was directly traceable to service. The examiner observed that there was no evidence in the claims file which would more likely explain the onset of the gastroesophageal reflux disease. Because pertinent records were not cited in the April 1998 report, a further review of the claims file was accomplished. Upon such review in January 1999, the physician determined the record was adequate in quality and quantity to form an opinion without necessity of further examination of the veteran. The physician set forth the evidence in detail. His opinion showed he had made a thorough review of the claims file and considered the evidence carefully. Unfortunately, however, the physician used an incorrect standard when he said he was unable, within any reasonable medical probability, to relate any treatment for Entamoeba histolytica or any other treatment in service to his current hiatal hernia, reflux esophagitis or any other gastric condition. Although later in the opinion the physician commented that the record did not support when the veteran's current GI pathology had its onset, the Board does not believe that this statement corrects the earlier opinion based on "reasonable probability" His opinion should have been expressed in terms of whether it was at least as likely as not that any current gastrointestinal disorder was etiologically related to or causally linked to any disease or injury in service. To ensure that due process and fairness are achieved in this appeal, the case is REMANDED to the RO for the following action: 1. The claims file together with a copy of this remand should be returned to the physician who performed the January 1999 review of the claims file. The physician is requested to provide an addendum to his aforesaid report, expressing his opinion in terms of whether it is as least as likely as not that the veteran's current upper gastrointestinal pathology is related to any disease or injury in service. It would be helpful if he were to comment on the opinions expressed by the examiner in March 1997 and the examiner in April 1998. Finally, if the examiner finds that if any current upper gastrointestinal pathology is not as least as likely as not related to military service, he should address and reconcile any contradictory opinions expressed in March 1997 and April 1998. 2. The RO should review the additional development and then readjudicate the issue of entitlement to service connection for a upper gastrointestinal disorder, claimed as a stomach condition. If the determination remains adverse to the veteran, he and his representative should be furnished a supplemental statement of the case and an opportunity to respond thereto. Thereafter, the case should be returned to the Board for further appellate consideration, if in order. The Board intimates no opinion, either favorable or unfavorable, as to the ultimate disposition of this case. No action is required of the veteran until he is notified by the RO. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). BRUCE KANNEE Member, Board of Veterans' Appeals