Citation Nr: 0007532 Decision Date: 03/21/00 Archive Date: 03/28/00 DOCKET NO. 96-01 128 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Entitlement to service connection for a rash of the feet. 2. Entitlement to service connection for a gastric ulcer. 3. Entitlement to assignment of a higher disability evaluation for post-traumatic stress disorder (PTSD), currently rated as 30 percent disabling. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The veteran and his spouse ATTORNEY FOR THE BOARD David S. Nelson, Associate Counsel INTRODUCTION The veteran had active military service from May 1966 to May 1970. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from an October 1994 rating decision by the St. Paul, Minnesota, Regional Office (RO) of the Department of Veterans Affairs (VA) which, in part, established service connection for PTSD and assigned a 10 percent disability rating effective May 19, 1994. The October 1994 rating decision also denied entitlement to service connection for a rash of the feet and irritable bowel syndrome and a gastric ulcer disability. A notice of disagreement was received in October 1995, and a statement of the case was issued in November 1995. The veteran's substantive appeal was received in December 1995. By rating decision in July 1996, the RO granted service connection for irritable bowel syndrome and that action constituted a full grant of the benefit sought as to that issue. However, the gastric ulcer issue remains in appellate status. Further, the July 1996 rating decision increased the rating for the veteran's PTSD from 10 percent to 30 percent, effective May 19, 1994. However, since there has been no clearly expressed intent to limit the appeal on this issue to entitlement to a specified disability rating, the RO and the Board are required to consider entitlement to all available ratings for that condition. AB v. Brown, 6 Vet. App. 35, 39 (1993). Accordingly, the increased rating for PTSD remains in appellate status. FINDINGS OF FACT 1. There is no medical evidence of a nexus between a rash of the feet and the veteran's military service. 2. There is no medical evidence of a nexus between a gastric ulcer and the veteran's military service or his service- connected irritable bowel syndrome. 3. The veteran's service-connected PTSD is productive of no more than definite social and industrial impairment, and no more than occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks, chronic sleep impairment, mild memory loss. CONCLUSIONS OF LAW 1. The veteran's claim of entitlement to service connection for a rash of the feet is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 2. The veteran's claim of entitlement to service connection for a gastric ulcer is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 3. The schedular criteria for entitlement to a rating in excess of 30 percent for PTSD have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.7, Diagnostic Code 9411 (1996) and Diagnostic Code 9411 (effective November 7, 1996). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Service Connection Claims Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection for certain chronic disabilities, such as gastric ulcers, will be presumed if manifest to a compensable degree within the year after service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). However, it should be noted at the outset that statutory law as enacted by the Congress charges a claimant for VA benefits with the initial burden of presenting evidence of a well- grounded claim. 38 U.S.C.A. § 5107(a). A well-grounded claim has been defined by the United States Court of Appeals for Veterans Claims (Court) as "a plausible claim, one which is meritorious on its own or capable of substantiation." Murphy v. Derwinski, 1 Vet. App. 78, 91 (1990). Where the determinative issue involves a medical diagnosis, competent medical evidence to the effect that the claim is "plausible" or "possible" is required. Grottveit v. Brown, 5 Vet. App. 91, 92-93 (1993). A claimant therefore cannot meet this burden merely by presenting lay testimony and/or lay statements because lay persons are not competent to offer medical opinions. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Consequently, lay assertions of medical causation cannot constitute evidence to render a claim well-grounded under 38 U.S.C.A. § 5107(a); if no cognizable evidence is submitted to support a claim, the claim cannot be well- grounded. Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). In order for a service connection claim to be well-grounded, there must be competent evidence: i) of current disability (a medical diagnosis); ii) of incurrence or aggravation of a disease or injury in service (lay or medical evidence), and; iii) of a nexus between the inservice injury or disease and the current disability (medical evidence). Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997); Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Moreover, the truthfulness of evidence is presumed in determining whether a claim is well grounded. King v. Brown, 5 Vet. App. 19, 21 (1993). The Board emphasizes, however, that the doctrine of reasonable doubt does not ease the veteran's initial burden of submitting a well-grounded claim. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Alternatively, the Court has indicated that a claim may be well grounded based on application of the rule for chronicity and continuity of symptomatology, set forth in 38 C.F.R. § 3.303(b). See Savage v. Gober, 10 Vet. App. 488 (1997). The Court held that the chronicity provision applies where there is evidence, regardless of its date, which shows that a veteran had a chronic condition either in service or during an applicable presumption period and that the veteran still has such condition. That evidence must be medical, unless it relates to a condition that the Court has indicated may be attested to by lay observation. If the chronicity provision does not apply, a claim may still be well grounded "if the condition is observed during service or any applicable presumption period, continuity of symptomatology is demonstrated thereafter, and competent evidence relates the present condition to that symptomatology." Savage, 10 Vet. App. at 498. With regard to both the rash of the feet and the gastric ulcer issues, the well-grounded requirement of a medical diagnosis of current disability has clearly been met. The report of a VA examination dated in 1994 lists diagnoses of Schamberg's pigmented purpura, medial ankles, and status post gastrointestinal bleed with gastric ulceration. Further, the veteran's assertions regarding his rash of the feet and ulcer symptoms during service are accepted as true for well- grounded purposes. The remaining question under the initial well-grounded analysis is whether the record includes medical evidence of a link or nexus between a current ulcer and rash of the feet disability and his military service. A. Rash of the feet The veteran entered service in May 1966. The report of induction examination in February 1966 shows that the veteran had a moderate amount of facial acne. A January 1970 service medical record indicates that the veteran had a rash on the upper body for one week. The impression was pityriasis rosea. The report of a medical examination conducted in May 1970 for the purpose of the veteran's separation from service noted no abnormality of the skin. At a September 1994 VA dermatological examination, the veteran stated that he first noted a rash on his feet while in Vietnam during the Fall of 1967. Upon returning from Vietnam, he used various antifungal powders and noted the tiny holes in the soles of his heels gradually disappeared within one or two years after his return. Over recent years he noted recurrences of skin problems in his feet and ankles approximately one or two times each winter. The impression was history of rash which by history appears to be eczematous in nature predominantly involving the dorsal feet, medial and lateral ankles, currently not active. Schamberg's pigmented purpura, medial ankles, was also noted. The examiner commented that he was unable to specifically diagnose the veteran's condition by history alone. A review of the record shows that there is no medical evidence linking any skin disability of the feet to the veteran's military service or any manifestation during such service. While the veteran has contended that he has a rash of the feet related to service, his contentions as a layperson do not make his service connection claim well grounded. Espiritu. The Board acknowledges that the September 1994 general medical examination reflects a diagnosis of tinea pedis in service. However, the examiner indicated that the veteran's service records were not available for review, and the examiner noted that the veteran was being referred for a dermatological examination. It appears the examiner was simply recording the veteran's self-described history. At any rate, the general medical portion of the September 1994 examination did not relate a current skin disorder of the feet to the veteran's military service. As the veteran has not presented any competent medical evidence that any of the currently diagnosed skin disabilities of the feet are related to service, and as there is no medical evidence linking the continuity of symptomatology which the veteran claims to his current skin disability of the feet, his claim for service connection for a rash of the feet is not well grounded and must be denied on that basis. 38 U.S.C.A. § 5107(a). See Savage, supra. B. Gastric ulcer Service medical records are negative for any complaints or diagnosis of an ulcer. The report of a medical examination conducted in May 1970 for the purpose of the veteran's separation from service noted no ulcer. At the September 1994 general medical examination, the veteran stated that he had undergone surgery in 1984 for disability including a gastric ulcer. The diagnosis included status post gastrointestinal bleed with gastric ulceration and suture repair of bleeder. At the May 1996 RO hearing, the veteran testified that he assumed his gastric ulcer was related to his bowel problems that the suffered during service. However, he indicated that he had never had a medical opinion that related the two conditions. In July 1996 the veteran was granted service connection for irritable bowel syndrome. After reviewing the claims file, the Board is unable to find any medical evidence linking a gastric ulcer to the veteran's military service or any manifestation during such service. As discussed earlier, the veteran's contentions regarding etiology are not sufficient to well ground the claim since laypersons are not competent to render medical opinions. Espiritu. The record does not include medical evidence of a continuity of symptoms since service, nor is there otherwise a medical opinion linking a present skin disorder to the continuity of symptoms reported by the veteran. Further, there is no evidence showing that a gastric ulcer was manifested to a compensable degree within one year of discharge. Accordingly, the necessary link to service cannot be established under the presumptive provisions of 38 U.S.C.A. §§ 1101, 1112 for ulcers. Additionally, the Board notes that disability which is proximately due to or the result of a service connected disease or injury shall be service connected. 38 C.F.R. § 3.310(a). However, no medical professional has linked the veteran's gastric ulcer to his service-connected irritable bowel syndrome. In sum, his claim for service connection for gastric ulcer disability is not well grounded and must also be denied. 38 U.S.C.A. § 5107(a). See Savage, supra. With regard to both service connection claims, the Board is aware of no circumstances in this matter which would put VA on notice that relevant evidence may exist or could be obtained, which, if true, would make the claims for service connection "plausible." See generally McKnight v. Gober, 131 F.3d 1483 (Fed. Cir. 1997). By this decision, the Board is informing the veteran that his service connection claims requires medical evidence of a nexus to service to meet the requirements of a well-grounded claim. See 38 U.S.C.A. § 5103(a); Robinette v. Brown, 8 Vet. App. 69 (1995). II. PTSD The veteran is appealing the original assignment of a disability evaluation following an award of service connection for PTSD, and, as such, his claim for the assignment of a higher evaluation is well-grounded. 38 U.S.C.A. § 5107(a); Shipwash v. Brown, 8 Vet. App. 218, 224 (1995). The Board finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the issue has been obtained. No additional action is necessary to meet the duty to assist the veteran. 38 U.S.C.A. § 5107(a). Moreover, since the present appeal arises from an initial rating decision which established service connection and assigned the initial disability evaluation, it is not the present level of disability which is of primary importance, but rather the entire period is to be considered to ensure that consideration is given to the possibility of staged ratings; that is, separate ratings for separate periods of time based on the facts found. Fenderson v. West, 12 Vet. App. 119 (1999). Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The veteran served in the Republic of Vietnam from June 1967 to March 1969. His awards include the Combat Action Ribbon. The veteran was first diagnosed with PTSD on a September 1994 VA examination. At the September 1994 VA examination, the veteran reported that he had nightmares and flashbacks related to his experiences in Vietnam. Upon his return from Vietnam he noticed that he had become impatient and quick to anger. He stated that he married in 1969 and had two grown children. The veteran indicated that he was a truck driver for a newspaper company and had worked there since 1972. Mental status examination revealed that the veteran was functioning at a normal level of intelligence and there was no cognitive deterioration. The diagnosis was PTSD, chronic, mild. The prognosis was fair. VA outpatient treatment records from May 1994 to March 1996 reflect participation in a PTSD therapy and medication study program. A May 1994 letter from the veteran's employer indicates that the veteran was counseled for his failure to arrive at work on time. At the May 1996 RO hearing, the veteran testified that he sometimes had problems getting to work due to oversleeping and had received at least three memos warning him about arriving late to work. He also remarked that he had difficulties with intrusive thoughts and problems with concentration. The veteran's wife indicated that the veteran was not as sociable now as he was prior to entering service. The veteran remarked that he did not feel comfortable in open areas with people. At an April 1997 VA PTSD examination, the veteran complained of chronic insomnia and admitted to anhedonia. He also stated that his marriage was not going well and that he had a poor relationship with his two sons. The veteran was casually dressed with a constricted, mildly blunted affect. His judgment and insight were fair. The diagnoses included PTSD, and the Global Assessment of Functioning (GAF) was 58. At a January 1999 VA mental disorders examination, the veteran complained of irregular sleep. He also complained of diminished interest in such activities as hunting and fishing. He enjoyed reading but found it hard to concentrate. The veteran remarked that he had decreased energy and difficulty with his memory. He described his mood as "sad and blah" and endorsed suicidal ideation, although he rarely thought of it and had never made an attempt to do so. His sexual interest had diminished. He described himself as irritable and sometimes impulsive; he stated a sense of hopelessness for the future. The veteran mentioned that he continued to suffer from flashbacks, nightmares, and intrusive thoughts concerning his experiences in Vietnam, and described himself as hypervigilant. He described a ritual of entering a room and looking for the entry and exit places. He complained of an exaggerated startle response. He felt detached and estranged from others, but did feel that his relationship with his wife was "okay." He had a restricted range of affect and described himself as having no friends. The veteran indicated that he had never been hospitalized or on medication for his psychiatric problems. He described his relationship with his sons as "okay", and stated that he had worked for 29 years for the same employer. The mental status evaluation revealed that the veteran was casually dressed, neatly groomed, and had normal speech and good eye contact. He described his mood as "blah," and the examiner noted that "his affect was consistent with this." He had normal psychomotor activity and his thought processes were logical and coherent. He was devoid of suicidal, homicidal, or paranoid ideation, with no evidence of delusions or hallucinations. His insight and judgment were fairly good, and he had performed well in the cognitive portion of the examination. It was noted that his symptoms of PTSD were moderately severe, and that he had suffered constriction of his interests and some difficulty relating to other people related to his symptoms. The diagnoses included PTSD, and the GAF was "approximately" 75. The veteran has been assigned a 30 percent disability rating for PTSD under the provisions of Diagnostic Code 9411. Pursuant to Diagnostic Code 9411, prior to November 7, 1996, the criteria for a disability rating of 50 percent were considerable impairment of ability to establish or maintain effective or favorable relationships with people; and psychoneurotic symptoms which cause the reliability, flexibility and efficiency levels to be so reduced as to result in considerable industrial impairment. The criteria for a rating of 30 percent were the definite impairment in the ability to establish or maintain effective and wholesome relationships with people; and psychoneurotic symptoms resulting in such reduction in initiative, flexibility, efficiency and reliability levels as to produce definite industrial impairment. The Board notes here that the VA General Counsel concluded that "definite" is to be construed as "distinct, unambiguous, and moderately large in degree." It represents a degree of social and industrial inadaptability that is "more than moderate but less than rather large." VAOPGCPREC 9-93 (Nov. 9, 1993). New regulations rating PTSD became effective November 7, 1996. Under the newly issue Diagnostic Code 9411, a rating of 50 percent is warranted for 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; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A rating of 30 percent is warranted for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal) due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). The Court has indicated that when a law or regulation changes after a claim has been filed, but before the administrative or judicial appeal process has been concluded, the version most favorable to the veteran generally applies. Karnas v. Derwinski, 1 Vet. App. 308, 313 (1991); White v. Derwinski, 1 Vet. App. 519, 521 (1991). The Board observes that during the course of the appeal, the RO has duly considered the veteran's claim under both the old and the new rating criteria. The Board's appellate review will do likewise. After reviewing the record, it is the Board's judgment that the veteran's PTSD is not manifested by more than definite social and industrial impairment or more than occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform tasks and, therefore, a rating in excess of 30 percent is not warranted under either the old or new rating criteria. There is no question that the veteran's PTSD has impacted his social relationships and contributed to some degree of industrial impairment. While he has symptoms such as sleep problems and nightmares, nothing resembling a formal thought disorder or cognitive impairment has been assessed. While the evidence shows that the veteran has had diminished interest in activities and has indicated that he had no friends, he has maintained a long-term marriage and has a relationship with his sons described as "okay." The preponderance of the evidence does not show that the veteran's PTSD is productive of such symptoms so as to result in considerable social and industrial impairment. In this regard, the Board notes that the veteran has worked for almost 30 years for the same employer. The Board notes that the previously mentioned VA General Counsel opinion makes it clear that a 30 percent rating under the old criteria actually contemplates more than moderate impairment, thus further supporting a finding that a rating in excess of 30 percent is not warranted. Further, the Board finds that, under the new regulations, the veteran's PTSD is not characterized by 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; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. The three mental status evaluations of record do not indicate any problem with speech, judgment, or cognitive difficulties of any kind. The reported GAF scores of 58 and 75 appear to reflect symptoms compatible with the current 30 percent rating. The GAF scale is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." The American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 32 (4th ed. 1994). The Board observes that a GAF score of 58 reflects only moderate symptoms. Therefore, the evidence does not show symptoms which would warrant the next higher rating of 50 percent. In reaching this decision, the Board finds that there is not a state of equipoise of the positive evidence with the negative evidence to otherwise provide a basis for assigning a rating higher than 30 percent at any time during the appeal. 38 U.S.C.A. § 5107(b); Fenderson. ORDER The appeal is denied as to all issues. ALAN S. PEEVY Member, Board of Veterans' Appeals