BVA9503809 DOCKET NO. 92-09 836 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to service connection for post-traumatic stress disorder (PTSD). 2. Entitlement to a rating in excess of 10 percent for residuals of a burn scar on the left ankle with incomplete paralysis of the common peroneal nerve. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD P. Gutstein, Counsel INTRODUCTION The veteran served on active duty from June 1967 to June 1971. This matter came before the Board of Veterans' Appeals (Board) on an appeal from the February 1991 rating decision of the Department of Veterans Affairs (VA) Boston, Massachusetts, Regional Office (RO) which denied service connection for PTSD and continued the noncompensable evaluation for residuals of a burn scar of the left ankle. The veteran filed a notice of disagreement in March 1991 and he was furnished a statement of the case in September 1991. He filed a substantive appeal in November 1991. He was afforded a hearing at the RO in November 1991. In a January 1992 decision, the hearing officer continued the denial of entitlement to service connection for PTSD but determined that an increased evaluation of 10 percent was warranted for residuals of a burn scar of the left ankle. In January 1992, the RO promulgated a rating decision which continued the denial of service connection for PTSD, associated incomplete paralysis of the common peroneal nerve with residuals of a burn scar of the left ankle, and increased the evaluation for the above disorder from noncompensable to 10 percent disabling effective from March 1990. The veteran has been represented throughout his appeal by the Disabled American Veterans which has submitted written argument in his behalf. CONTENTIONS OF APPELLANT ON APPEAL It is argued that the record contains sufficient stressors to establish the presence of PTSD which has been clinically confirmed by examining psychiatrists and by psychological testing. Since the veteran had duty in Vietnam under combat conditions, it is believed that service connection should be granted for the psychiatric disability. With regard to the rating for the residuals of a burn scar on the left ankle, the veteran's representative believes that separate compensable ratings may be assigned for that disability pursuant to the United States Court of Veterans Appeals (Court) decision of Esteban v. Brown, 6 Vet.App. 259 (1994). DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the evidence in this matter, it is the decision of the Board that service connection for PTSD is warranted, and that the veteran is entitled to a 20 percent evaluation for residuals of a burn scar on the left ankle with incomplete paralysis of the common peroneal nerve. FINDINGS OF FACT 1. The veteran served in Vietnam at an airbase at which stressful events, such as airplane crashes and explosions, occurred. 2. The veteran reported being within 50 to 100 yards of an airplane that exploded and that he donated blood to the injured pilot. 3. The veteran reported doing guard duty on the base at night and also participating in up to 10 aerial missions where the planes were subject to enemy fire. 4. The veteran has been diagnosed as having PTSD including symptoms of anxiety, depression, sleeplessness, nightmares, startle reaction, anger, guilt feelings, fluctuation of moods and withdrawal from society. 5. Residuals of a burn on the left ankle with incomplete paralysis of the common peroneal nerve are manifested by tender and painful nerve scar, constant burning and throbbing of the left ankle scar area, and hyperesthesia around the scar. The veteran reports that after resting his left foot while driving, the left side of the foot is numb and he had to give up a walking route with the Postal Service because of pain in the foot. CONCLUSIONS OF LAW 1. PTSD was incurred in service. 38 U.S.C.A. §§ 1110, 5107(b) West (1991); 38 C.F.R. §§ 3.304(d)(f). 2. A 20 percent evaluation for residuals of a burn scar of the left ankle with incomplete paralysis of the common peroneal nerve is warranted. 38 U.S.C.A. §§ 1155, 5107(b) West (1991); 38 C.F.R. Part 4, Codes 7802-7804 and 8521 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has determined that the veteran is entitled to service connection for PTSD and, in addition, that a 20 percent rating for residuals of a burn scar on the left ankle with incomplete paralysis of the common peroneal nerve is warranted. This determination is based upon a review of the complete evidentiary record including the service medical records, post service medical reports, testimony of the veteran at a personal hearing and other statements of the veteran and his representative in support of the claim. I. Entitlement to Service Connection for PTSD The veteran served on active duty from June 1967 to June 1971 including 9 months and 12 days of overseas service in Vietnam. He was classified as an aircraft maintenance technician and received the National Defense Service Medal, Vietnam Service Medal, Republic of Vietnam Commendation Medal and the Air Force Ground Commendation Medal. Service medical records do not show that the veteran was wounded in action or that he was afforded psychiatric treatment of any kind in service. He was afforded audiometric testing in service as a result of current noise exposure at his primary work area which was the flight line. The discharge examination showed a normal psychiatric evaluation. On the veteran's initial compensation claim in April 1972, he referred only to a burn of the left lower ankle in service. The veteran filed an initial claim for service connection for PTSD in March 1990, claiming onset of that condition in 1982. VA medical records for 1982 show that the veteran was hospitalized and treated also on an outpatient basis for chronic alcoholism with history of polydrug abuse. There was no record of psychiatric treatment at that time. In a statement of July 1990, the veteran recited the fact that after he entered service, he was stationed at Dover Air Force Base in Delaware where he did volunteer work consisting of evaluating bodies of military personnel who were killed in action in Southeast Asia to determine whether they were viewable or nonviewable. He related that in January 1969 he was assigned to duties in Southeast Asia where he was crew chief on aircraft for reconnaissance purposes to locate enemy movement and mark the target for air strikes or artillery. His job was to make sure the airplane was prepared properly. In one incident, he stated that he was at the end of the runway when another aircraft was taking off fully loaded with bombs, rockets, etc., when it exploded and burst into flames with pieces going everywhere. The veteran related that he and another person had to take cover, that the pilot was pulled from the aircraft badly burned and that the veteran volunteered to donate blood. He stated he was in fear of recurring incidents such as that because of the constant handling of live ammunition and the constant pressure of the combat mission. He also recalled a later incident of a similar nature where two personnel were killed. VA outpatient treatment records show that the veteran was referred for a PTSD evaluation in 1990 and that he had a presenting complaint of sleep disturbance as well as problems related to Vietnam service. He initially presented a constricted affect but later recited his history. He said he worked in the Post Office but spent time otherwise by himself. He reported being preoccupied with interpreting life through his Vietnam experiences. He said that he previously drank to self-medicate his sleep disturbance and depression but that he had sought treatment from the VA in 1974 for sleep disturbance and was given medications which he found ineffective. He related that after he was sent to Vietnam, at first he was assigned to arm planes at a base on the Laotian border and was then assigned as crew chief on a forward air controller aircraft. This duty had the aircraft flying over the Ho Chi Minh Trail in Laos and directing bombing raids. He said that when he came home and was discharged, his wife complained that he was not the same and she left him after five months with their daughter since she could no longer stand his emotional remoteness. He said he had not been involved closely with anyone since. In addition to a constricted affect, he showed anger and sadness and his mood was depressed. He said the depressed episodes lasted up to several weeks, several times a year, with suicidal thoughts. He had sleep disturbance and loss of energy, appetite and libido. The diagnostic impression was chronic PTSD and personality disorder with avoidant and schizotypal features. He continued to be followed in the mental health clinic thereafter. He was regularly medicated for his nerves. At the veteran's personal hearing in November 1991, he recited that he flew in a plane on 10 missions and that the plane was fired at; and that when the plane crashed that he previously described, he was within 50 to 100 yards of the crash. He said he recalls the plane crash now and that it interrupts his sleep. He said that he suffers from flashbacks when he hears the noise of a helicopter. The veteran has been examined by the VA for evaluation purposes on several occasions. The initial psychiatric evaluation in January 1991 contained a recitation of the combat experiences recited above as well as his having worked in a military mortuary. He stated that his very best friend was killed in January 1969 the same month that he arrived there. He said he slept 3 to 4 hours a night and then would pace around, he was so irritable and anxious that he had started to bite his nails, that he never watched war movies, that he had no social life and he had become a loner, stating that he did not trust people. He said that he went into rages, even at work and that his concentration abilities had diminished. He said it was too upsetting even to read the news in the paper. Objectively, he appeared extremely uptight, anxious and ill at ease. He was easily tearful and sobbed during the interview. He was definitely very depressed. He had recurrent terrorizing nightmares, startle reaction, flashbacks, according to the narrative. A diagnosis was made of chronic, severe PTSD with anxiety and depressive features. The veteran underwent a psychological testing assessment for PTSD by the VA in June 1993 in which he described having to assist distressed planes taking off and landing, including pulling seriously wounded pilots out of downed planes during flight emergencies. He said that the loss of a friend of his, another crew chief who was shot down while working as an observer during a mission, gave him a guilt feeling. He also testified to an incident which occurred off base where he and other American soldiers were forced by armed Thai soldiers to line up against a wall, believing that they were going to execute them, but eventually released them. He also testified as to watching numerous air strikes in the surrounding areas of Laos and North Vietnam and that he began to drink heavily several times per week in order to help himself "relax" in response to these stressors. After service, although the veteran related that he had had a girl friend after his wife divorced him, this had been a rocky relationship with episodes of moodiness, arguments and periods of not speaking. On the basis of assessment, a diagnosis was made of PTSD because of exposure to recognizable stressors as noted under military history, reexperiencing of the trauma through intrusive thoughts, nightmares and psychological distress when reminded of the trauma, numbing of responsiveness and avoidance of stimuli associated with the trauma, and hyperarousal as evidenced by sleep disturbance, irritability, impaired concentration, hypervigilance, exaggerated startle response and physiologic reactivity to cues associated with the trauma. It was felt that his depression and alcohol dependence were likely secondary to his PTSD. Other diagnoses included major depression, panic disorder, alcohol dependence in remission and drug abuse in remission. On the most recent VA examination conducted by two psychiatrists in August 1993, the prior diagnosis of PTSD was confirmed with manifestations of the disorder as described above. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by wartime service. 38 U.S.C.A. § 1110 West (1991). 38 C.F.R. § 3.304(d) (1994) provides that satisfactory lay or other evidence that an injury or disease was incurred or aggravated in combat will be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances, conditions or hardships of such service even though there is no official record of such incurrence or aggravation. 38 C.F.R. § 3.304(f) (1993) provides that service connection for PTSD requires medical evidence establishing a clear diagnosis of the condition, credible supporting evidence that the claimed inservice stressor actually occurred and a link, established by medical evidence, between current symptomatology and the claimed inservice stressor. If the claimed stressor is related to combat, service department evidence that the veteran engaged in combat or that the veteran was awarded the Purple Heart, Combat Infantry Badge, or similar combat citation will be accepted, in the absence of evidence to the contrary, as conclusive evidence of the claimed inservice stressor. In the Court of Veterans Appeals (Court) case of Zarycki v. Brown, 6 Vet.App. 91 (1993), the Court noted that it is the distressing event, rather than the mere presence in a "combat zone" which may constitute a valid stressor for purposes of supporting a diagnosis of PTSD. It emphasized the importance of an event during such service "that is outside of the range of usual experience and that would be markedly distressing to almost anyone," such as experiencing an immediate threat to one's life or witnessing another person being seriously injured or killed. In the case at hand, the veteran has described an event where a plane exploded 50 to 100 yards from the veteran, forcing him to take cover and seriously injuring the pilot to whom the veteran subsequently donated blood. Other events were described where the veteran was part of a crew on a mission for reconnaissance and the plane was subject to enemy fire, and the veteran performed guard duty also subject to enemy fire. A June 1993 report from the United States Army and Joint Services Environmental Support Group (ESG) enclosed extracts from the 504th Tactical Air Support Group unit history, the higher headquarters of the 23rd and 19th Tactical Air Support Squadrons, for the period January to June 1969 and the extracts listed numerous aircraft incidents where the crew or units were subject to enemy fire resulting in crashes and injury or death of the pilots and/or other crew members. While the ESG was unable to document that the veteran served as crew chief, the veteran has testified in detail and submitted written statements detailing the events that took place while he was stationed in Vietnam. In Doran v. Brown, 6 Vet.App. 283 (1994), the Court, citing the Zarycki case, supra, noted that there was nothing in the statute or in the regulations which provided that corroboration of the stressors must, and can only, be found in service records. In this case, the veteran has stated several times in clinical settings that he was exposed to stressors in Vietnam as a result of his work at an air base on which there were enemy attacks, airplane crashes, and explosions. He has also reported that he was exposed to stressors when working at a mortuary at an Air Force base in Deleware. His service record shows that he served in Vietnam, and according to reports pertaining to the unit in which the veteran served, the activities of that unit involved enemy attacks, with airplane crashes and losses of lives. In addition, according to the medical reports in the claims folder, the veteran has been evaluated several times, with findings that a diagnosis of PTSD is warranted. These medical reports explicitly relate the diagnoses of PTSD to the veteran's experiences in Vietnam. In 1993, for example, a panel of two VA psychaitrists examined the veteran and reported a diagnosis of PTSD based on severe military stressors. Thus, there is a clear diagnosis of PTSD, along with credible evidence of stressors and medical evidence linking the veteran's current psychiatric symptoms with his inservice stressors. The Board concludes, therefore, that PTSD was incurred in service. 38 U.S.C.A. §§ 1110, 5107(b), 38 C.F.R. §§ 3.304(d)(f) (1994). II. Entitlement to a Rating in Excess of 10 Percent for Residuals of a Burn Scar on the Left Ankle with Incomplete Paralysis of the Common Peroneal Nerve Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155 West (1991); 38 C.F.R. Part 4, (1994). Separate diagnostic codes identify the various disabilities. Residual second-degree burn scars with area or areas approximating 1 square foot are evaluated 10 percent disabling. 38 C.F.R. § 4.118, Code 7802 (1993). Scars which are superficial, tender and painful on objective demonstration will be rated 10 percent disabling under Diagnostic Code 7804. Paralysis of the external popliteal nerve (common peroneal) will be rated 10 percent for a mild degree of disability under Diagnostic Code 8521. Service medical records show that the veteran sustained a second-degree burn to the left ankle in January 1969. The condition was treated with medication and with dressing changes through March 1969. At the end of March, the examination notation was that the left ankle looked improved. On the March 1971 examination for separation from service, there was a notation of third-degree accidental burn in 1969 with a 2-inch circular scar of the left ankle reported. By rating decision of June 1972, the RO established service connection and assigned a noncompensable evaluation for scar, residual second-degree burn, left ankle, on the basis of reviewing the service medical records. VA treatment records in 1990 show that the veteran was seen frequently at the outpatient clinic complaining of left ankle pain. The veteran reported experiencing slight pain all the time with pronounced tenderness, with pain extending 6 inches above and 8 centimeters below the scar. He also found that after resting the left foot while driving, the left side of the foot became numb. He reported having worked in the Postal Service since 1973 and walking a route from 1980 to 1985 which he gave up because of pain of the left ankle. Employment records were also received confirming the fact that the veteran originally worked as a carrier for the Post Office and that he was reassigned as distribution clerk in September 1985. In a December 1990 report, the veteran described that he had constant "burning, throbbing" pain in the scar area and that the medication given him resulted in indigestion but little relief. A January 1991 outpatient treatment examination showed hyperesthesia in and around the old burn scar of the left ankle. At the veteran's personal hearing in November 1991, he stated that while carrying the mail he had a constant throbbing in the left leg, like a toothache; as a result of this disability, he was unable to walk or stand for long periods of time and he favored his other leg. A medical statement submitted at the time of the veteran's hearing was from C. R. Hawley, M.D., who had examined the veteran in March 1991 for evaluation of his left leg. The veteran reported chronic pain and tenderness in the area of the healed wound which increased with any prolonged weight bearing, forcing a job change at the Post Office. Objective examination showed a 3.7-by 1.9-centimeter depressed, atrophic scar on the lateral aspect of the left leg proximal to the lateral malleolus. Sensation in the area was partially diminished and dysesthetic. It was the opinion of Dr. Hawley that the scar was very possibly the result of third-degree burn with residual local nerve damage. (Earlier VA electromyographic and nerve conduction studies of the left leg in January 1991 had been interpreted as normal.) The veteran was most recently examined by the VA for evaluation of his left leg in January 1993 when a peripheral nerve study was done. According to the veteran's history, he had noticed a difference between his left and right toes, a difference in their feeling when he stepped. This had caused him to stop working as a letter carrier and he stated that this had cost him considerably in the way of income. Neurologic examination showed no change in the deep tendon reflexes. There was a definite loss of strength in dorsiflexion of the great toe on the left as compared to the right. He had some tenderness over a scar just above the lateral malleolus, the scar being approximately 2 and 3 centimeters in diameter, and being circular. According to the veteran there was discomfort on palpating of the scar region, and examination to pain sensation revealed pin sensation loss up to the knee in a stocking distribution on the left. There was no abnormality on the right. The diagnoses included status post burn, left supramalleolar area, with residual neuropathy; and peripheral neuropathy, of idiopathic cause, causing stocking distribution sensory loss. It was stated that the cause of the sensory loss to the knee on the left side was not related to the lesion over the malleolus. By rating decision of January 1992, the RO assigned the veteran a 10 percent evaluation for residuals of burn scar, left ankle, with incomplete paralysis of common peroneal nerve, effective from March 1990 under Diagnostic Codes 7802-8521. The veteran's representative has urged an increased rating for the residuals of burns of the left ankle based on the various disabling manifestations of that disability which are separate and distinct, supporting independent evaluations pursuant to the Court decision of Esteban v. Brown, 6 Vet.App. 259 (1994). In that case, where the veteran had sustained a fractured bone on the right side of his face due to motor vehicle accident, it was held that he could be assigned separate ratings for his three facial problems which included disfiguring scars, painful scars and facial muscle damage resulting in mastication problems. Therefore, the veteran was rated 30 percent for his disability, consisting of three separate 10 percent ratings. In this case, the representative's argument appears well-founded since the veteran has neurological damage consisting of loss of sensation on the leg in the burn area diagnosed as residual neuropathy. This supports assignment of a 10 percent evaluation for mild incomplete paralysis of the common peroneal nerve under Diagnostic Code 8521. Aside from that, the veteran has constant pain of the left lower leg, in the area of the burn scar, preventing him from walking or standing for long periods of time. This is a separate disability and warrants a 10 percent evaluation under Diagnostic Code 7804 for a tender and painful scar. The provisions of 38 C.F.R. § 3.321(b)(1) (1993) have been considered, but an extraschedular evaluation is not warranted since the schedular evaluations adequately compensate the veteran including his loss of earnings due to his service-connected disability. The Board concludes, therefore, that the veteran is entitled to a 20 percent combined evaluation for the burn scar residuals of the left ankle with incomplete paralysis of the common peroneal nerve, based upon a 10 percent evaluation for a tender and painful scar and a 10 percent evaluation for incomplete paralysis of the common peroneal nerve. 38 U.S.C.A. §§ 1155, 5107(b) West (1991); 38 C.F.R. Part 4, Codes 7804 and 8521 (1994). ORDER Entitlement to service connection for PTSD is granted. Entitlement to a 20 percent evaluation for residuals of a burn on the left ankle with incomplete paralysis of the common peroneal nerve is granted, subject to monetary regulations. G. H. SHUFELT Member, Board of Veterans' Appeals (CONTINUED ON NEXT PAGE) The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.