Citation Nr: 0002225 Decision Date: 01/28/00 Archive Date: 02/02/00 DOCKET NO. 96-43 240 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to an increased rating for post traumatic stress disorder (PTSD), currently evaluated 30 percent disabling. 2. Whether new and material evidence has been submitted to reopen the claim of service connection for a chronic back disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARINGS ON APPEAL Appellant, his spouse, his treating psychiatrist, and clinical social worker ATTORNEY FOR THE BOARD Artur F. Korniluk, Associate Counsel INTRODUCTION The veteran had active naval service from June 1946 to April 1948 and active military service from February 1949 to September 1952. This matter comes to the Board of Veterans' Appeals (Board) from Department of Veterans Affairs (VA) Los Angeles Regional Office (RO) rating decisions which in March 1996 declined to reopen the claim of service connection for a back disability, and in January 1999 denied a rating in excess of 30 percent for the service-connected PTSD. In April 1998, the matter of whether new and material evidence has been submitted in support of the application to reopen the claim of service connection for a back disability was remanded to the RO for additional development of the evidence. In February 1999, the veteran's accredited representative raised a claim of service connection for a right ear condition. As that matter has not yet been adjudicated, it is remains pending and is referred back to the RO for initial adjudication. Kandik v. Brown, 9 Vet. App. 434 (1996). Where a claim has not been addressed by the RO, it is not in appellate status, and the Board must refer, rather than remand, the claim. Godfrey v. Brown, 7 Vet. App. 398, 409 (1995). FINDINGS OF FACT 1. The veteran's service-connected PTSD is manifested by symptoms of crying and tearfulness, anxiety, depression, nightmares, flashbacks, intrusive memories and recollections, increased startle response, and social isolation and inability to feel comfortable outside his home environment, increasing in severity and persistence when he is exposed to stimuli reminding him of his war experiences. 2. His PTSD is productive of total occupational and social impairment due to symptoms productive of grossly inappropriate behavior, intermittent inability to perform activities of daily living, and periods of prolonged disorientation to time and place (especially during flashbacks). 3. Service connection for a back disability was denied by January 1953 RO rating decision, but no timely appeal therefrom was filed by or on behalf of the veteran. 4. Evidence submitted in support of the veteran's application to reopen the claim of service connection for a chronic back disability since the January 1953 RO rating decision is new, relevant and probative of the issue at hand. 5. The evidence of record indicates that the veteran's chronic low back disability, including degenerative disc disease, may be linked to his wartime service. CONCLUSIONS OF LAW 1. The schedular criteria for a 100 percent rating for PTSD have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 4.130, Diagnostic Code 9411 (1999). 2. Evidence submitted since the January 1953 RO rating decision denying service connection for a chronic back disability is new and material and the claim is reopened. 38 U.S.C.A. §§ 5107, 5108, 7105 (West 1991); 38 C.F.R. §§ 3.104(a), 3.156(a) (1999). 3. The claim of service connection for a chronic back disability is well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Increased rating claim The veteran's claim is well grounded in that it is capable of substantiation. Murphy v. Derwinski, 1 Vet. App. 78 (1990). This finding is based on his assertion that disability associated with the service-connected PTSD has increased in severity. Proscelle v. Derwinski, 1 Vet. App. 629 (1992). Once determined that a claim is well grounded, VA has a duty to assist in the development of evidence pertinent to the claim. 38 U.S.C.A. § 5107(a). Pertinent clinical data have been associated with the file, including current data sufficient to address the merits of the claim. Thus, the duty to assist has been met in this case. Under applicable criteria, 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; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. The VA has a duty to acknowledge and consider all regulations which are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusion. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2 (1999), the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). Service connection for PTSD was granted by May 1995 RO rating decision and a 30 percent rating assigned. That decision was based on the veteran's service records showing combat service during the Korean conflict, inpatient treatment for combat- related anxiety reaction in service, and post service clinical evidence of PTSD, relating it to in-service, combat- related stressors. Private clinical records from November 1993 to January 1994 reveal treatment associated with the veteran's PTSD, as manifested by flashbacks, intrusive memories, anxiety, delusion, tearfulness, feeling of shame, depression, and difficulty confronting people of Asian origin. On VA psychiatric examination in February 1994, the veteran described combat-related stressful events in Korea, including two brief periods of captivity by the Chinese. He indicated he was married to his 3rd spouse since 1977, describing their relationship as "positive;" that he was employed until 1992, at which time increasing and persistent symptoms of anxiety and interaction with people of Asian origin rendered him unable to continue employment. Reportedly, he experienced nightmares, increased startle response, anxiety, avoidance of stimuli reminding him of combat service, difficulty sleeping, panic and anxiety attacks when encountering Asians, nearly constant tearfulness and hyperventilation, social isolation, and embarrassment about his loss of emotional control. On examination, his affect was labile and appropriate with frequent tearing and distress; he was depressed, insight was poor to fair, and remote memory was mildly impaired; there was no evidence of delusions, hallucinations, and thought processes were organized and goal-oriented. Recurrent major depression and PTSD were diagnosed, and Global Assessment of Functioning (GAF) score 46 was assigned. On VA psychiatric examination in February 1995, the veteran's mood was dysthymic and his affect was labile; he became tearful on several occasions during the examination and expressed embarrassment about his anxiety. It was indicated he became very anxious and hyperventilated, resembling panic, every time he encountered an Asian person. He indicated that anxiety-producing intrusive memories were easily triggered by a variety of stimuli including seeing people in uniforms and hearing the Star Spangled Banner; reportedly, the severity of his symptoms intensified since the last examination in February 1994. On examination, PTSD and recurrent major depression (in remission) were diagnosed, and GAF score 46 was assigned. The examiner indicated that the veteran had to adjust his whole life to avoid anxiety-producing situations, and as a result he felt embarrassed and depressed. At a July 1996 RO hearing, the veteran testified that he received ongoing treatment and took medication for his PTSD. VA medical records from April 1996 to November 1998 document frequent treatment and therapy associated with the veteran's PTSD. During treatment, he exhibited symptoms including depression, tearfulness, nightmares, flashbacks, social isolation, avoidance of anxiety- and depression-evoking stimuli including encountering Asians, exposure to death, military, and war-related issues, inability to control or deal with his memories and crying spells, and embarrassment about his inability to control his emotions and feelings, all of which symptoms appear to have periodically responded to some extent to medication. In October 1998, his spouse indicated that he was kicking her in sleep almost every night, acting as if he were defending himself. Clinical impression in November 1998 was dense, profound PTSD; it was noted that he needed psychotherapy, but was able to come to the clinic only early in the morning so as to avoid encountering Asian people; he was unable to attend former prisoner of war group without breaking down. At an August 1999 video conference hearing, the veteran, his spouse, treating psychiatrist, and clinical social worker essentially testified that he had severe PTSD symptoms despite regular use of medication and treatment; although he was very compliant with treatment, he continued to be unable to deal with his memories, intrusive thoughts and recollections, nightmares, depression, anxiety, panic attacks, tearfulness and crying spells, and social isolation, all which increased in severity and persistence every time he was exposed to stimuli reminding him of his stressful wartime experiences (the stimuli evoked the symptoms even while he was on a maximum dose of medication), which essentially incapacitated him for a period of time until he could calm down. His psychiatrist suggested that he would be essentially unable to function at all without medication. Reportedly, he felt embarrassed by his inability to control emotions and his PTSD-related disability, and was unable to assist his spouse and relatives in any chores around the house if it involved leaving the house by himself (as this would invariably expose him to PTSD symptom-evoking stimuli which he could not handle by himself). His entire life had to be rearranged and adjusted around minimization of exposure to any PTSD symptom-triggering stimuli. At the August 1999 hearing, the veteran's treating psychiatrist testified that he was seriously disabled from PTSD (assigning him a GAF score of 45-50), that he displayed grossly inappropriate behavior (as he was frequently overcome by crying spells and tearfulness), that he displayed intermittent inability to perform activities of daily living and obsessional rituals interfering with routine activities. Currently, the veteran's service-connected PTSD is rated under 38 C.F.R. § 4.130, Diagnostic Code 9411 (1999), and a 30 percent evaluation is assigned consistent with evidence 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, mild memory loss (such as forgetting names, directions, recent events). A 50 percent evaluation will be assigned under Diagnostic Code 9411 where there is evidence of 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 and maintaining effective work and social relationships. A 70 percent evaluation will be assigned under the Code 9411 where there is evidence of 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 work-like setting); inability to establish and maintain effective relationships. A 100 percent rating is assignable under Code 9411 where there is total occupational and social impairment, due to symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal hygiene); disorientation to time and place; memory loss for names of close relatives, own occupation, or own name. Based on the entire record, the Board finds that a 100 percent rating for the veteran's service-connected PTSD is warranted. The evidence reveals that he receives ongoing treatment, therapy, and regularly uses prescription medication for his PTSD symptomatology. Although he appears to show periodic improvement in the severity and persistence of at least some of his symptoms, the overall condition, and what appears to be his most severely disabling symptoms (including tearfulness, uncontrollable crying spells, flashbacks, anxiety, and depression, all of which continue to be triggered by certain stimuli discussed in detail above despite treatment and use of medication), are not shown to allow him to function independently outside his home environment; in 1994 and 1995, a GAF score of 46 was assigned and, in August 1999, his treating psychiatrist assigned him a score between 45 and 50. Medical and lay evidence discussed above, including his treating psychiatrist's August 1999 testimony, reveals that his daily life and all activities have to be adjusted and structured in such a manner as to minimize exposure to stimuli that evoke his PTSD symptoms. The entirety of the evidence indicates that his PTSD is productive of total social impairment by virtue of symptoms consistent with grossly inappropriate behavior, intermittent inability to perform activities of daily living, disorientation to time and place, and memory impairment. See Diagnostic Code 9411. As discussed above, the schedular criteria for a 100 percent rating for PTSD under Diagnostic Code 9411 require that the disability be productive of total occupational and social impairment. In this case, the evidence reveals that the veteran was a professional physician's assistant and has not worked in several years. Although the evidence does not unambiguously show that he has been unable to work due to PTSD alone, such work involves interaction with people. As discussed above, the evidence of record demonstrates that he is unable to interact with people of Asian origin (as this immediately triggers severe attacks of anxiety, depression, and uncontrollable crying spells), and must adjust and structure his daily activities in such a fashion so as to avoid such stimuli; to the extend that complete avoidance is impossible, any exposure to stimuli immediately triggers a severe reaction requiring a period of "cooling off." Moreover, in August 1999, his treating psychiatrist assigned him a GAF score between 45 and 50. Thus, resolving the benefit of the doubt in the veteran's favor, the Board believes that the severity of his service-connected PTSD symptoms is productive of total occupational impairment, and the overall severity of the disability more nearly approximates the criteria for a 100 percent rating under Code 9411. New and material evidence claim Service connection for a back disability was denied by January 1953 RO rating decision, finding that the evidence did not show the presence of a chronic back disability (of service origin or otherwise); an appeal therefrom was not filed in a timely fashion. Veterans Regulation No. 2(a), pt. II, par. III; VA Regulation 1008, effective January 25, 1936 to December 31, 1957 (now 38 U.S.C.A. § 7105). Accordingly, the January 1953 RO rating decision became final and is not subject to revision on the same factual basis, but may be reopened on the submission of new and material evidence. 38 U.S.C.A. § 5108; 38 C.F.R. §§ 3.104(a), 3.156(a). The U.S. Court of Appeals for Veterans Claims (the Court) recently held that a three-step analysis must be performed when a claimant seeks to reopen a previously denied claim. See Winters v. West, 12 Vet. App. 203 (1999); Elkins v. West, 12 Vet. App. 209 (1999). First, it must be determined whether new and material evidence has been presented under 38 C.F.R. § 3.156(a). Second, if new and material evidence has been presented, the case must be reopened and immediately on reopening VA must determine whether, based on all the evidence and presuming its credibility, the claim as reopened is well grounded under 38 U.S.C. § 5107(a). Third, if the claim is well grounded, VA may evaluate the merits after ensuring that the duty to assist under 38 U.S.C.A. § 5107(b) has been fulfilled. Id. Whether new and material evidence is submitted is a jurisdictional test, with reopening of a claim required if such evidence is submitted and prohibited if such evidence is not submitted. See Barnett v. Brown, 8 Vet. App. 1 (1995), aff'd, 83 F.3d 1380, 1383-84 (Fed. Cir. 1996). See also Winters, 12 Vet. App. at 206. In addressing whether new and material evidence has been submitted, the Board must review the evidence before VA at the time of the prior decision, identify any additional evidence now before VA, and determine whether that additional evidence is both new and material. If so, then the claim will be reopened. If not, that is where the analysis must end as the Board lacks jurisdiction to further review the claim. See Barnett, 8 Vet. App. 1, aff'd, 83 F.3d at 1383-84. New and material evidence is defined as evidence not previously submitted to agency decision makers which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in connection with evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a); see also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998); Fossie v. West, 12 Vet. App. 1 (1998). In Hodge, the U.S. Court of Appeals for the Federal Circuit noted that not every piece of new evidence is "material," but that some new evidence may well contribute to a more complete picture of the circumstances surrounding the origin of a veteran's injury or disability, even where it will not eventually alter a rating decision. Id., 155 F.3d at 1363. In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). With these considerations, the Board must now review all of the evidence submitted and associated with the claims folder since the final RO rating decision in January 1953. Evidence of record at the time of the January 1953 RO rating decision included the service medical record (showing that he participated in combat during the Korean conflict); in December 1949, December 1950, and April 1952, the veteran reported experiencing muscle aches and back pain; physical examinations were essentially negative but he underwent physical therapy in December 1950. No pertinent report or clinical findings were noted on service separation medical examination in September 1952. Evidence submitted since the final January 1953 RO rating decision, denying service connection for a back disability, consists of September 1978 private hospital records, showing treatment for severe pain in the right inguinal region. On examination, various musculoskeletal symptoms and impairment involving the lumbosacral spine were indicated, and acute herniated lumbar intervertebral disc L3-4 with nerve root compression at the right L4 was diagnosed. The veteran was hospitalized for 12 days and, on hospital discharge, he showed steady and marked improvement, was referred for continuing outpatient treatment, and lumbar disc syndrome was diagnosed. A March 1994 magnetic resonance imaging (MRI) study of the lumbar spine reveals grade I anterolisthesis of S1 under L5 with central disc protrusion relative to S1, neural foraminal stenosis, facet joint hypertrophy, L3-4 left lateral disc protrusion, and small hemangioma at the L1 level. Private medical records from September 1995 to January 1996 reveal treatment associated with back pain, including findings of neurological impairment and degenerative disc disease involving the lumbar spine. In January 1996, the veteran underwent lumbar laminectomies and exploration of the right L5 nerve root. At a July 1996 RO hearing, the veteran testified that he sustained back injury during combat-related service in Korea in 1950, when he was captured by the enemy. He indicated that he had recurrent problems with his back since service, noting that he did not sustain any back injuries or trauma after service separation, and suggesting that he did not perfect a timely appeal from the January 1953 rating decision denying service connection for a back disability because he was then a young man and had more important things on his mind. He testified that he was initially hospitalized in 1978 due to back symptoms (noting that he received occasional outpatient treatment prior to that time). He indicated that he was a trained physician's assistant and worked in the field of orthopedics (and was thus able to self treat, to some extent, his symptoms of back pain and discomfort). In April 1998, the Board remanded to the RO the matter of whether new and material evidence had been submitted to reopen the claim of service connection for a back disability. Medical records from J. Rich, M.D., dated from October 1995 to February 1996 and received in June 1998, reveal treatment for the veteran's back symptomatology. On examination in November 1995, he indicated that he had recurrent low back pain and paresthesia for about 25 years, noting that he experienced the first episode of low back pain at age 45 (and that he was once hospitalized for 12 days). In reporting his medical history, he indicated that he was of good health for most of his life. VA medical records from April 1996 to November 1998 reveal, in pertinent part, intermittent treatment for back symptoms, including radiating pain and discomfort, and the presence of degenerative disc disease and osteoarthritis. At the August 1999 hearing, the veteran testified that he sustained back injury when he was captured by the Chinese during wartime service in Korea. He indicated that he received surgical and intermittent medical treatment for recurrent back symptomatology after service separation, and that he continued to experience symptoms of back pain which he treated with Motrin. In August 1999, the veteran's spouse testified that she had known him since 1977, and that he had recurrent problems with back pain during that entire time. Also submitted since the final RO rating decision in January 1953 were duplicate copies of parts of the service medical records (documenting complaints of back pain, as noted above) and various clinical and lay records unrelated to the claimed back disability. Based on the foregoing, the newly submitted evidence, discussed above, is deemed material to a reopening of the veteran's service connection claim in that it includes opinions that must be considered in order to fairly decide the merits of the veteran's claim. The Board notes that portions of the newly submitted evidence indicate that back symptomatology was initially treated when the veteran was 45 years of age (more than 20 years after service separation). However, the newly submitted evidence, including the veteran's July 1996 RO hearing testimony, the credibility of which is presumed, reveals that he acquired professional training in the field of orthopedic medicine and had worked as a physician's assistant and/or nurse until the early 1990s; he thus appears competent to provide an opinion regarding the etiology of his back disability (which he was not at the time of the final RO rating decision in January 1953). Given the nature of this case, the Board finds that there is new and material evidence sufficient to reopen the claim of service connection for a chronic back disability. Thus, the Board will review the claim de novo. Service connection may be allowed for a chronic disability, resulting from an injury or disease, which is incurred in or aggravated by the veteran's period of active service. 38 U.S.C.A. §§ 1110, 1131 (West 1991). Service connection may also be allowed on a presumptive basis for arthritis, if the disability becomes manifest to a compensable degree within one year after the veteran's separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1999). A review of the record indicates that the veteran's claim of service connection for a chronic back disability is well grounded. 38 U.S.C.A. § 5107(a). This finding is based on service medical records showing in-service evidence of back symptomatology, the veteran's own contention under 38 U.S.C.A. § 1154(b), that he sustained a back injury under combat conditions in Korea, and his recent testimony to the effect that his current back disability is etiologically related to injuries sustained in service (based on evidence of record that he has at least some medical knowledge and skill in the area of orthopedic medicine). Although a chronic back disability was not evident at the time of service separation or for many years thereafter, and the available records of medical treatment reveal that back disability was initially treated in the 1970s, the veteran's opinion is deemed sufficient to render his service connection claim well grounded. See Caluza v. Brown, 7 Vet. App. 498 (1995). ORDER Entitlement to an increased evaluation of 100 percent for PTSD is granted, subject to pertinent criteria governing the payment of monetary benefits. New and material evidence having been presented in support of the claim of service connection for a chronic back disability, the claim is reopened. REMAND If a claim is well grounded, VA has a duty to assist the veteran in the development of facts pertinent to his claim, see 38 U.S.C.A. § 5107(b), which includes a thorough VA examination. Hyder v. Derwinski, 1 Vet. App. 221 (1991); Green v. Derwinski, 1 Vet. App. 121 (1991). While portions of the evidence of record indicate that the veteran's back disability was initially treated in 1978, and he indicated during November 1995 treatment by Dr. Rich that he experienced back problems since age 45, other available evidence indicates that he did have back symptomatology in service. Although no report or finding of back disability was noted on service separation medical examination or for many years thereafter, the veteran, having been shown to have at least some training in orthopedics, is competent to testify that his current low back symptoms and disability are related to combat-related injuries in service; to that effect, his claim is plausible and capable of substantiation. Thus, the Board believes that clarification should be sought, including a review of the veteran's entire claims file to determine etiology of any chronic back disability which may now be present. See Suttmann v. Brown, 5 Vet. App. 127, 137 (1993). In view of the foregoing, the claim of service connection for a chronic back disability is REMANDED for the following action: 1. The RO should obtain from the veteran the names, addresses, and approximate dates of treatment of all medical care providers who treated him for any back symptomatology since service. After any necessary information and authorizations are obtained from the veteran, any such pertinent records of treatment, VA or private, inpatient or outpatient (not already of record) should be obtained and added to the claims folder. 2. Then, the veteran should be afforded a VA orthopedic examination to determine the etiology of all low back disabilities now present. The claims folder must be made available to the examiner for review in conjunction with this request for medical opinion, and any report must reflect the examiner's review of pertinent evidence in the claims folder. The examiner should be asked to provide an opinion whether it is at least as likely as not that any back disability found is causally related to service, keeping in mind the nature of the veteran's service (to the extent possible, the examiner should be asked to comment on whether in-service back pathology may be distinguished from post-service pathology, and if so, the examiner should be requested to explain such distinction). If any of the foregoing cannot be determined, the examiner should so state for the record. 3. The RO should carefully review the evaluation report and the other development requested above to ensure compliance with this remand. If any development requested above has not been furnished, including any requested findings and/or opinions on evaluation, remedial action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). If the benefit sought on appeal is not granted, the veteran and his representative should be provided a supplemental statement of the case and afforded an opportunity to respond. The case should then be returned to the Board review. The veteran has the right to submit additional evidence and argument on the matter remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). J. F. Gough Member, Board of Veterans' Appeals