Citation Nr: 0006308 Decision Date: 03/09/00 Archive Date: 03/17/00 DOCKET NO. 98-04 322 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for Posttraumatic Stress Disorder (PTSD). 2. Entitlement to a permanent and total disability evaluation for non-service connected pension purposes. ATTORNEY FOR THE BOARD S. L. Wright, Associate Counsel INTRODUCTION The veteran served on active duty from December 1967 to November 1969. This matter comes before the Board of Veterans' Appeals (Board) from an October 1997 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. The Board also notes that this case was remanded to the RO in August 1999 for further development in the form of obtaining VA Medical Center Records. Those records having been obtained, the Board can proceed with adjudication of the veteran's claims. FINDINGS OF FACT 1. The veteran has not submitted an opinion linking a service stressor to his current diagnosis of PTSD. 2. The veteran's disabilities are not productive of total disability and are not sufficient to render the average person unable to secure substantially gainful employment. 3. The veteran's disabilities do not preclude him from engaging in substantially gainful employment, consistent with his age, education and occupational history. CONCLUSION OF LAW 1. The veteran's claim of entitlement to service connection for PTSD is not well grounded. 38 U.S.C.A. § 5107(a)(West 1991). 2. The requirements for a permanent and total rating for pension purposes have not been met. 38 U.S.C.A. §§ 1502, 1521, 5107 (West 1991 and Supp. 1995). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. PTSD The veteran has claimed entitlement to service connection for PTSD. In order to establish service connection for a claimed disability, the facts, as shown by the evidence, must demonstrate that a particular disease or injury resulting in current disability was incurred during active service or, if preexisting active service, was aggravated therein. 38 U.S.C.A. § 1110, 1131. In making a claim for service connection, however, the veteran has the initial burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. 38 U.S.C.A. § 5107(a). A well-grounded claim is "a plausible claim, one which is meritorious on its own or capable of substantiation." See Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). In order for a service connection claim of PTSD to be well grounded, there must be competent evidence: i) of a medical diagnosis of PTSD ii) lay evidence of an inservice stressor and; iii) of a nexus between the service stressor and PTSD. Cohen v. Brown, 10 Vet. App. 128, 137 (1997). 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). The Board notes initially that the veteran was diagnosed with PTSD on VA examination dated May 1997. The examiner found that while the veteran did have PTSD, the precipatory events were unclear and the symptoms were vague. The record does not contain another diagnosis of PTSD. The Board also considered medical records dated March 1997 through July 1999 obtained upon remand from the VA Medical Center, but notes that the veteran was not diagnosed with PTSD during that time and did not provide information regarding stressors in those records. The Board also notes that the veteran himself is unsure what caused his PTSD. In correspondence dated December 1997, he stated that he felt most of his mental illness was a result of a "murder"(sic) he committed and was incarcerated for, although some of his depression, etc. could be traced to his Vietnam experience. On the PTSD questionnaire submitted at that same time, the veteran indicated that he was involved in mortar and sniper attacks and that he engaged the enemy while a convoy guard. However, the veteran does not report any specific details of any incidents or that the incidents were particularly stressful. Therefore, after careful review of the claims file, it is the decision of the Board that the veteran's claim of entitlement to service connection for PTSD is not well grounded. There is no competent medical evidence of record that the veteran's diagnosis of PTSD has been linked to his active service. In fact, the only diagnosis of record clearly finds that the precipatory events were unclear. The veteran has indicated that some of his depression is related to service. However, the Board notes that where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. See Jones v. Brown, 7 Vet. App. 134, 137 (1994); Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1991). Since the records does not reflect that the veteran possesses the medical training and expertise necessary to render an opinion as to either the cause or diagnosis of PTSD, his lay statements alone cannot serve as a sufficient predicate upon which to find his claim for service connection to be well grounded. See Heuer v. Brown, 7 Vet. App. 379, 384 (1995) (citing Grottveit v. Brown, 5 Vet. App. 91, 93 (1993)). Finally, the Board is unaware of any information in this matter that would put VA on notice that any additional relevant evidence may exist that, if obtained, would well ground the veteran's claim. See generally McKnight v. Gober, 131 F.3d 1483 (Fed. Cir. 1997); Robinette v. Brown, 8 Vet. App. 69, 77-78 (1995). II. Nonservice connected pension Under the provisions of 38 U.S.C.A. § 1521, pension is payable to a veteran who served for ninety (90) days or more during a period of war and who is permanently and totally disabled due to non-service connected disabilities which are not the result of the veteran's willful misconduct. Permanent and total disability will be held to exist when an individual is unemployable as a result of disabilities that are reasonably certain to last throughout the remainder of that person's life. Talley v. Derwinski, 2 Vet. App. 282, 285 (1992); 38 C.F.R. §§ 3.340(b), 4.15. There are three alternative bases upon which a finding of permanent and total disability for pension purposes may be established. The first way is to establish that the veteran has a lifetime impairment which is sufficient to render it impossible for the "average person" to follow a substantially gainful occupation under the appropriate diagnostic codes of the VA Schedule for Rating Disabilities (rating schedule). The "average person" standard is outlined in 38 U.S.C.A. § 1502(a)(1) and 38 C.F.R. §§ 3.340(a), 4.15. This process involves rating and then combining each disability under the appropriate Diagnostic Code to determine whether the veteran holds a combined 100 percent schedular evaluation for pension purposes. In determining the combined figure, non-service connected disabilities are evaluated under the criteria as service connected disabilities. Individual evaluations are then added pursuant to the combined ratings table. See 38 C.F.R. § 4.25. Alternatively, a veteran may establish permanent and total disability for pension purposes absent a combined 100 percent schedular evaluation by proving that the individual (as opposed to the average person) has a lifetime impairment precluding the veteran from securing and following substantially gainful employment. 38 U.S.C.A. § 1502, 1521(a); 38 C.F.R. § 4.17. Under this analysis, if there is only one such disability, it must be ratable at 60 percent or more, and; if there are two or more disabilities, there must be at least one disability ratable at 40 percent or more, with a combined disability rating of at least 70 percent. However, even if a veteran cannot qualify for permanent and total disability under the above rating scheme following applicable schedular criteria, a permanent and total disability rating for pension purposes may be granted on an extra-schedular basis if the veteran is subjectively found to be unemployable by reason of his or her disabilities, age, occupational background, and other related factors. 38 C.F.R. §§ 3.321(b)(2); 4.17(b). 38 C.F.R. § 3.301(c)(2) provides that alcohol abuse is considered willful misconduct (thus precluding pension benefits) but that "[o]rganic diseases and disabilities which are a secondary result of the chronic use of alcohol as a beverage, whether out of compulsion or otherwise, will not be considered of willful misconduct origin." 38 C.F.R. § 3.301(c)(3) contains similar language applicable to drug abuse. Therefore, alcohol dependence and substance abuse are deemed by statute to be the result of willful misconduct and cannot themselves be considered as a disability for purposes of pension benefits. In this case, the medical records show clearly and undeniably that the veteran's alcoholism is the principal reason for his dysfunction in the workplace. Indeed, any low GAF score he has received has been associated with the problems stemming from his long term alcohol abuse 38 C.F.R. § 4.17 (1998) provides that prior employment or unemployment status is immaterial if in the judgment of the rating board the veteran's disabilities render him or her unemployable. Also, 38 C.F.R. § 4.17a (1998) provides that "[a] permanent and total disability rating under the provisions of §§ 4.15, 4.16 and 4.17 will not be precluded by reason of the coexistence of misconduct disability when: (a) A veteran, regardless of employment status, also has innocently acquired 100 percent disability, or (b) Where unemployable, the veteran has other disabilities innocently acquired which meet the percentage requirements of §§ 4.16 and 4.17 and would render, in the judgment of the rating agency, the average person unable to secure or follow a substantially gainful occupation." As noted above, entitlement to pension benefits may be objectively determined if the veteran is unemployable as a result of permanent disabilities or if he experiences disabilities which would preclude the average person from following a substantially gainful occupation, if it is reasonably certain that the disabilities are permanent. 38 U.S.C.A. § 1502; 38 C.F.R. § 4.15. An analysis of the propriety of the rating assigned for each of the veteran's non-service connected disabilities is therefore warranted. The nonservice connected disabilities considered by the RO include PTSD and schizoaffective disorder. The PTSD has been assigned a noncompensable evaluation, while the schizoaffective disorder has been assigned a 10 percent rating. The veteran thus has a combined 10 percent rating. The relevant findings with respect to each disability are summarized below. a. PTSD The veteran's PTSD is rated under 38 C.F.R. § Part 4, Diagnostic Code 9411. That code provides that a noncompensable evaluation is warranted where a mental condition has been formally diagnosed but symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous medication. A 10 percent evaluation is warranted where there is occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication. Pertinent medical evidence here includes a VA examination conducted in May 1997 and VA outpatient medical records dated from March 1997 to July 1999. At the VA examination, the veteran reported that the had witnessed some stressful events in service and that he had considerable problems relating both to a murder he had committed, along with time spent in jail for that crime. The examiner found the veteran oriented times three with below average intelligence. He could recall 4 out of 7 objects immediately but none after three minutes. His abstraction ability was limited and he had auditory hallucinations. He suffered from paranoia and social isolation and had no hobbies. He also had an inappropriate giggle and poor eye contact. He was diagnosed with PTSD of unclear etiology and assigned a Global Assessment of Functioning (GAF) score of 80, denoting transient and expectable reactions to psychosocial stressors. See Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (which VA has adopted at 38 C.F.R. § 4.125 (1999)). The outpatient records do not contain a diagnosis of PTSD or reference to complaint or treatment of symptoms related to PTSD. It is the decision of the Board that the veteran's symptomatology does warrant an increase to a 10 percent evaluation in this matter. The VA examination clearly described symptoms of memory loss, abstraction problems, social isolation and poor eye contact. He also assigned the GAF score of 80. As this score reflects transitory and expectable symptoms and the symptoms are listed, it seems clear that the veteran's symptomatology falls squarely within the 10 percent evaluation. b. Schizoaffective Disorder The veteran's schizoaffective disorder has been assigned a 10 percent evaluation pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9211. A 10 percent evaluation is warranted where there is occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication. A 30 percent rating is available where there is a demonstration of occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational 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, or mild memory loss (such as forgetting names, directions, or recent events). See 38 C.F.R. § 4.130, Diagnostic Code 9211 (1999). The medical evidence here consists of a May 1997 VA examination report and VA outpatient medical records from March 1997 to July 1999. In May 1997, the examiner found the veteran to be oriented times three with decreased intelligence, decreased memory, decreased concentration and decreased abstraction ability. The veteran also reported auditory hallucinations with paranoia and an inappropriate giggle. He again was assigned a GAF score of 80. VA outpatient medical records do not contain complaint, treatment or diagnosis of schizoaffective disorder. It is the decision of the Board that the veteran's symptomatology is of the type contemplated by the 10 percent evaluation. The veteran certainly has symptoms, but the examiner found the veteran to have slight impairment with transient and expectable reactions. Therefore, the 10 percent evaluation stands. With respect to making an objective determination of total disability, in consideration of which the Board has taken the analyses set forth above bearing on the propriety of the currently assigned ratings (and combined rating) for the veteran's disabilities, the Board would, as noted above, point out that, when overall impairment is commensurate with a 100 percent rating in accordance with schedular criteria, a total rating on a schedular basis is warranted. 38 C.F.R. § 3.340(a)(2). In the alphabetized analyses set forth above, the Board has determined that the ratings currently assigned the veteran schizoaffective disorder is proper, but that a 10 percent evaluation is warranted for the veteran's PTSD. The veteran does not have a disability that is rated at 40 percent. Moreover, given the analyzes conducted by the Board above, the veteran is without sufficient additional disability to bring his combined rating to 70 percent or more, inasmuch as adding the veteran's noncompensable ratings only yields, in accordance with the principles codified at 38 C.F.R. § 4.25, a combined rating of 20 percent. Given the foregoing consideration, the veteran's disabilities are objectively determined not to be representative of total disability in accordance with 38 C.F.R. §§ 4.16 and 4.17. Accordingly, on the basis of the objective "average person" standard of review, a permanent and total disability evaluation is not warranted. Since the veteran's disabilities do not meet the threshold requirements of 38 C.F.R. § 4.17, as applied to pension cases though 38 C.F.R. § 4.16, the Board must further determine whether the veteran would be eligible for pension benefits on the basis of subjective criteria, see Brown v. Derwinski, 2 Vet. App. 444 (1992), including consideration of a claimant's age, education and occupational history, and unusual physical and mental defects. Such subjective standard made is created by 38 C.F.R. § 4.17 and § 3.321(b)(2) being read together. See Talley, supra. With respect to the subjective factors bearing on the veteran's possible entitlement to pension benefits, such as age, education, and occupational background, the Boards notes that, according to the veteran's March 1997 application for pension, the veteran was born in 1947, that he completed 4 years of college and that he last worked in 1980. The Board notes here that the veteran's treating VA physician wrote in September 1999 that the veteran was 100 percent unemployable and that the veteran was totally and permanently unemployable and therefore, should not be expected to be able to hold any type of gainful employment in the future. However the VA treatment records from this doctor show that the veteran's sole treatment has concerned various problems with alcohol intoxication and abuse. As mentioned above, alcohol abuse has been deemed willful misconduct, and it otherwise precludes granting payment of monetary benefits. The Board further notes that the VA examinations are the only places where the veteran is diagnosed with either PTSD or schizoaffective disorder and these evaluations show much less severe symptomatology, suggesting that the veteran could work in certain circumstances. Given the foregoing observations and in considering of the veteran's age and the manifestations of his ailments, the Board finds that the disabilities, considered in the context of a subjective standard of entitlement to the benefit sought, are not so incapacitating as to preclude substantially gainful employment. Finally, the Board would point out that, inasmuch as the veteran, given the discussion above, does not meet the percentage standards for entitlement to pension under 38 C.F.R. § 4.16(a), it has considered entitlement to pension in accordance with the extraschedular criteria codified at 38 C.F.R. § 3.321(b)(2). However, in light of the Boards' determination above that the veteran is not found to be unemployable by reason of factors including his age and occupational background, the provisions of 38 C.F.R. § 3.321(b)(2) are not for application in resolving this aspect of the appeal. Accordingly, entitlement to a permanent and total rating for pension purposes is denied. ORDER Entitlement to service connection for PTSD is denied. Entitlement to nonservice connected pension is denied. BRUCE KANNEE Member, Board of Veterans' Appeals