BVA9507351 DOCKET NO. 93-13 352 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for post-traumatic stress disorder. 2. Entitlement to an effective date earlier than September 1, 1992, for the award of a 10 percent evaluation for a right knee disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Michael A. Pappas, Associate Counsel INTRODUCTION The veteran served on active duty from June 1967 to June 1969. When the veteran's case was last before the Board of Veteran's Appeals (the Board) in July 1991, the case was remanded to the Department of Veterans Affairs (VA), St. Petersburg, Florida, Regional Office (RO) for further development of evidence pertaining to the issue of service-connection for post-traumatic stress disorder. Consideration of the companion issue of entitlement to an increased (compensable) rating for residuals of a right meniscectomy was deferred pending completion of the requested development. In December 1992, while the case was still in remand status, the RO granted the veteran's claim of entitlement to an increased (compensable) evaluation for residuals of a right meniscectomy, and assigned a 10 percent rating, effective September 1, 1992. The RO notified the veteran that their action would be "considered a grant of this issue on appeal unless [the veteran notified the RO] to the contrary." In January 1993, the veteran replied to the RO, and specifically disagreed with the September 1, 1992 effective date for the 10 percent evaluation assigned, and requested that "an earlier effective date going back to the original claim, dated September 22, 1989, be assigned." A supplemental statement of the case as to the issues currently on appeal was issued in February 1993. The veteran filed a VA Form 1-9 on the issue of an earlier effective date in March 1993. Since the award of a 10 percent rating for the knee disability, the veteran has not disagreed with the rating assigned. Accordingly, it is concluded that the issue of an increased rating in no longer on appeal. CONTENTIONS OF APPELLANT ON APPEAL The veteran asserts that the RO committed error in denying entitlement to service connection for post-traumatic stress disorder. Essentially, he believes that the stressors and the symptomatology required for a diagnosis of post-traumatic stress disorder have been clearly established. Although his specific stressors have not been verified, his combat service in Vietnam has been, and that should be adequate. Secondly, he argues that his symptomatology includes nightmares, night sweats, jumpiness, insomnia, flashbacks, being short-tempered, and depression. The fact that the examining VA psychiatrists did not perceive these symptoms or diagnose post-traumatic stress disorder is simply a reflection of inadequate examinations. With respect to his claim for an effective date earlier than September 1, 1992 for the grant of a 10 percent evaluation for a right knee disorder, the veteran argues that, since the filing of his initial claim for an increased rating in September 1989, he has continued to experience swelling, pain and instability. Finally, a referral to the orthopedic clinic resulted in the discovery of the tear in the knee that required surgery. The tear, and the symptomatology associated with it, had been there all along. 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 relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the claim for service connection for posttraumatic stress disorder is not well grounded and that preponderance of the evidence supports the veteran's claim of entitlement to an effective date of September 25, 1989 for the award grant of a 10 percent evaluation for a right knee disorder. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2.. An initial claim for service connection and disability compensation for a right knee disorder was received by the VA on September 25, 1989. 3. Service connection for the right knee disability was granted by a rating decision of February 1990 and a zero percent rating was assigned, effective from September 25, 1989, date of the veteran's claim. The veteran timely appealed the rating assigned. 4. By a rating decision of December 1992, the RO assigned a 10 percent rating for the veteran's right knee disability from September 1, 1992. The veteran timely disagreed with the date assigned. 5. At the time the veteran's initial claim was received on September 25, 1989, his right knee disability was shown to be manifested by symptomatic residuals of a meniscectomy. 6. Although the veteran is shown to have served in combat in Vietnam, post-traumatic stress disorder has not been documented. CONCLUSIONS OF LAW 1. The claim for service connection for post-traumatic stress disorder is not well grounded. 38 U.S.C.A.. § 5107(a) (West 1991). 2. An effective date of September 25, 1989, for the award of a 10 percent evaluation for a right knee disorder is warranted. 38 U.S.C.A. §§ 5107(a) 5110 (West 1991); 38 C.F.R. § 3.400 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS With respect to the issues on appeal, the threshold question to be answered is whether the veteran has presented evidence of well- grounded claims; that is, claims which are plausible. If he has not presented well-grounded claims his appeal must fail and there is no duty to assist him further in the development of his claims because such additional development would be futile. 38 U.S.C.A. § 5107(a). Further, the Board would essentially lack jurisdiction to adjudicate such a claim. Boeck v. Brown, 6 Vet.App. 14 (1993). As will be explained below, the Board finds that the claim for service connection for post-traumatic stress disorder is not well grounded. The Board finds that claim for an effective date earlier than September 1, 1992 for the grant of a 10 percent evaluation for a right knee disorder to be well-grounded within the meaning of 38 U.S.C.A. § 5107(a). That is, it is a claim that is not inherently implausible. The Board is also satisfied that all relevant facts have been properly developed with respect to that claim. A diligent effort has been made by the RO and the veteran to identify and obtain all medical records identified by the veteran. The record is devoid of any indication that there are other pertinent records available which might otherwise assist the veteran in the development of his claim. No further assistance is required to comply with the duty to assist the veteran mandated by 38 U.S.C.A. § 5107(a). Post-Traumatic Stress Disorder It is noted that the veteran has argued that his recent VA compensation examinations were inadequate. However, he was examined in August 1992 by two VA psychiatrists specifically to assess whether he has post-traumatic stress disorder. The report of that examination is adequate for deciding the issue when considered with the other evidence of record. Moreover, in finding that the veteran's claim is not well-grounded, "the VA [is] under no duty to provide the [veteran] with an examination or otherwise assist him in the development of his claim." Rabideau v. Derwinski, 2 Vet.App. 141 (1992). As a not well-grounded claim, it is understood that the evidence of service connection before the Board does not present a reasonable probability of a valid claim. Therefore, neither has the regulatory requirement for authorization of another VA examination been met. 38 C.F.R. § 3.326(a) (1994). As previously noted, the veteran is currently service-connected for the a right knee disorder, evaluated as 10 percent disabling from September 1, 1992. That is his only service-connected disorder. The evidence consists of the veteran's service medical and personnel records, including reports of an entrance examination and a separation examination, post-service VA medical records, and written and oral statements of the veteran, himself. The veteran's service medical records reveal that an entrance examination in June 1967 produced normal psychiatric findings. The veteran's service medical records are silent with respect to complaints, findings, or diagnosis of a psychiatric disorder during his period of active service. An April 1969 service medical examination conducted less than two months prior to the veteran's separation from service produced normal psychiatric findings. When questioned as to whether he had ever experienced depression, excessive worry, or nervous trouble of any sort, the veteran answered in the negative. The veteran originally filed a claim for service connection for post-traumatic stress disorder in September 1989. He noted that he was in combat for seven months in Vietnam, and was constantly in life-threatening situations. His DD Form 214 reflects that he was a light weapons infantryman and that his awards and decorations include the Combat Infantryman Badge. On November 9, 1989, following his initial VA compensation examination for his right knee disorder, the veteran requested to see somebody about his nerves. His complaints included problems with sleeping, being "up-tight," being withdrawn, and an inability to mix with others. He stated that events in Vietnam had stuck with him, "just like it happened yesterday." It was noted that the veteran had no prior psychiatric history. He lived with his mother, and had never married. He had no children, but had brothers and sisters whom he visited often. The veteran noted further that he consumed alcohol heavily after his separation from service, but stopped completely in 1978. However, he occasionally smoked marijuana. His military history included service as a combat infantryman. He described an incident to the examiner in which his sergeant was killed by a booby trap while the veteran was 6 or 7 feet away. The veteran was not injured. The assessment of the VA staff psychologist was that the veteran was very quiet, and seemed worried and withdrawn. His affect was noted to be flat, and he seemed depressed. He had a normal flow of thought, denied delusions, but avoided crowds. The veteran told the examiner that he "heard noises in the woods when he was home alone." The examiner's impression was "1) Rule-out major depression; and 2) Rule-out post-traumatic stress disorder." The veteran was referred for psychiatric evaluation. A psychiatric examination was conducted on the same day. The examining psychiatrist noted that the veteran had claimed to have incurred a "knee injury in battle." The veteran expressed symptoms of a failure to communicate with people. The examining psychiatrist noted this to mean that he was alienated and withdrawn. The examiner noted that the veteran appeared quite depressed with soft, halting speech, a limited range and intensity of affect, and a sad quality of mood. It was noted that the veteran seemed obsessed with memories of Vietnam, but did not spontaneously express flashbacks or nightmares. He did indicate "poor sleep." The examiner found no thought disorder; the veteran was found to be cognitively intact. The veteran indicated to the examiner that when it was quiet, he heard noises like in the jungle. The examiner's impression was "Major depression; Rule-out post-traumatic stress disorder." Nortriptyline was prescribed and the veteran was asked to return to the clinic in 2 weeks. At some unspecified point in time, the VA mental hygiene clinic attended by the veteran conducted a Therapeutic Programming Board Meeting. The veteran's primary psychiatric diagnosis on Axis I was noted by the clinic staff to be "Major depression." The veteran reported for a VA psychiatric examination in January 1990. He indicated, by history, that his first psychiatric decompensation occurred while serving in Vietnam in 1968. He stated, further, that he had never been hospitalized because of nerves, but had been attending the VA outpatient mental health clinic for the past 4 or 5 months. He noted that he was being medicated with Nortriptyline. He noted, further, that he consumed alcohol heavily after his separation from service, but stopped completely in 1978. He indicated, however, that he occasionally smokes marijuana. Mental status examination revealed that the veteran wore dark glasses and did not volunteer much information. He was described by the examiner as being well dressed and casually groomed, well oriented in all modalities, but with hesitant speech. His affect was noted to be flat and he acknowledged feeling depressed. His energy level was described as "low," and he denied any thought or perceptual disorders. Cognitive functions revealed the veteran to be alert and oriented as to time, place, person and situation. His memory was preserved for recent as well as remote events, with active recall. His mood was subdued and sad. The examiner noted that the veteran tended to be withdrawn and seclusive. The veteran was noted to have a few friends, but stayed mostly to himself. His judgment and insight were described as "fair." The veteran denied any suicidal thoughts or tendencies. The examiner's diagnosis was "Dysthymic disorder, moderate." The veteran reported to the VA Mental Hygiene Clinic for scheduled outpatient treatment on March 15, 1990. He noted that he was feeling considerably better on the Nortriptyline; he was sleeping better, had some improvement in the quality of his mood, and was less depressed. The report noted that the veteran's mental status and his medication remained unchanged. The report also noted that the veteran had not heard anything more on his application for increased benefits. The veteran reported to the VA Mental Hygiene Clinic on an unscheduled walk-in basis on April 26, 1990. He indicated that he was questioning the validity of his recent compensation examination because of the brevity of the interview. The report of the visit noted that the veteran's mental status remained unchanged, but his medication was increased. The psychiatrist's report also noted that his diagnosis of "major depression with symptoms of post-traumatic stress disorder" disagreed with the diagnosis of the VA compensation evaluator. Pursuant to the Board's 1991 remand, the veteran appeared for a VA psychiatric examination by a board of psychiatrists in August 1992. The examiners noted that the veteran had never been hospitalized in a psychiatric facility, but had received intermittent outpatient treatment. As of the examination, it was noted that the veteran had refused any further outpatient treatment since, in the veteran's opinion, the physician assigned to him was not helping him and no other physician was willing to take care of him. The examiners noted that the veteran's military history included active combat in Vietnam. Particularly memorable was an incident in which he and his unit were ambushed. It was noted that several of his buddies, "especially his sergeant was (sic) killed in close proximity." It was indicated, however, that the veteran had no specific symptoms other than nightmares, since his return from Vietnam. Although the veteran complained of insomnia, it was speculated that what he had been experiencing was difficulty with his sleep cycle rather than true insomnia. Upon examination, the veteran's cognitive functions of orientation, memory and abstract thinking were intact. His mood was slightly depressed. His affect was appropriate. There was no evidence of hallucinations, delusions, perceptual deficit, or psychosis. The veteran denied suicidal or homicidal thinking. The impression of the board of examiners was that the veteran did not truly have any symptoms of post-traumatic stress disorder, other than nightmares. It was concluded that "his most appropriate diagnosis should be dysthymia." In order to establish service connection, the facts, as shown by evidence, must demonstrate that a disease or injury resulting in current disability was incurred during peacetime service or, if pre-existing active service, was aggravated therein. 38 U.S.C.A. § 1110 (West 1991). In evaluating whether the veteran's claim for service connection is well grounded, the Board notes his contention that he currently has a nervous condition that he believes to be post-traumatic stress disorder, which he further contends must be directly related to the stressful events that he experienced in service. The veteran, however, is not shown to have the medical background required to offer a probative medical opinion. See Espiritu v. Derwinski, 2 Vet.App. 492 (1992). Consequently, it must be determined whether there is evidence supporting his claim. The veteran has provided information on several occasions, with varying degrees of detail, concerning the stressful events he experienced in Vietnam. In July 1992, the Environmental Support Group of the United States Army provided information pertinent to the veteran's period of combat service in Vietnam. Although the information did not specifically verify or negate any of the veteran's allegations, it was noted that it is likely that the veteran participated in guard duty and combat patrols in Vietnam. Moreover, the veteran is the recipient of the Combat Infantryman Badge. Accordingly, the presence of in-service stressors is conceded. 38 C.F.R. § 3.304(f) (1994). What has not been shown, however, is medical evidence establishing a clear diagnosis of post-traumatic stress disorder. Id. The service medical records for the veteran's period of service do not reflect any complaints, findings, history or diagnosis of psychiatric problems. VA outpatient records indicate that in 1989, it was noted the post-traumatic stress disorder should be "R.O." (ruled out). In 1990 it was noted that the veteran had some "symptoms" of post-traumatic stress disorder. Despite some references in the record to post-traumatic stress disorder, there is no definitive diagnosis of that disorder. The VA examination by two psychiatrists performed pursuant to the Board's remand also failed to yield a diagnosis of post-traumatic stress disorder. In regard to that examination, it is noted that psychological testing was not undertaken. However, since the Board remand indicated that any "necessary" testing should be performed, it is concluded that the examiners did not consider it to be necessary The diagnosis made on the occasion of that examination was dysthymia. The examiners specifically stated that, other than nightmares, the veteran did not have symptoms of post-traumatic stress disorder and that the most appropriate diagnosis was dysthymia. The record also reflects diagnoses of major depression. As there is no probative evidence that the veteran has post-traumatic stress disorder, his claim is not well-grounded. 38 U.S.C.A. § 5107(a). He can establish a well-grounded claim by submitting medical evidence indicating that he has post-traumatic stress disorder (or that his psychiatric disorder, however diagnosed, is related to service). Earlier Effective Date Service medical records reveal that the veteran was diagnosed as having an internal derangement of the right knee and a probable tear of the medial semilunar cartilage in April 1968. The separation examination report of April 1969 indicates that the veteran had undergone meniscectomy of the right knee in May 1968, with no sequelae. The post-service medical evidence discloses that the veteran's knee was treated by the VA in August 1987, following complaints by the veteran of right knee instability. X-rays revealed no radiographic abnormality. A November 1987 orthopedic consultation noted the veteran complained of right knee pain, but disclosed full range of motion, negative effusion and a negative McMurray's sign. The examiner's impression was "status-post meniscectomy, normal exam." On September 21, 1989, the veteran was seen at a VA outpatient clinic with complaints of recurrent right knee pain and his knee giving out or locking up. Examination revealed no gross edema or erythema, and no bony deformity. Drawer sign and McMurray's sign were negative. Mild crepitus on movement was noted. The examiner's assessment was post meniscectomy of the right knee - probable degenerative joint disease. Motrin and quadriceps exercises were prescribed. The veteran's original claim for service connection for a right knee disorder was received by the VA on September 25, 1989. In a medical and occupational history given in conjunction with a November 1989 VA orthopedic examination, the veteran reported, in terms of employment, that between 1987 and 1989, he occasionally helped his uncle with carpet work; this was especially hard on his knee. He described that his right knee had gotten progressively worse over the years, especially within the prior year and a half. He noted that "it pains, especially when kneeling." Upon examination, a 2 and 3/4 inch well-healed scar was noted on the medial side of the right knee joint. Extension of the right knee was 0 degrees and flexion was 140 degrees. The veteran walked on his heels and toes without any difficulty. He was able to squat and rise without difficulty. Drawer sign was negative. The right knee joint was stable, laterally and medially. There was no swelling. X-rays revealed the right knee to be within normal limits, with no significant change since August 1987. The examiner's pertinent impression was "History of meniscectomy, right knee, stable at this time." The veteran was seen again for complaints of right knee pain and his knee giving out in December 1989 and in April 1990. In December 1989, some laxity of the patella was noted. The veteran remained on a regimen of Motrin and quadriceps exercises during that period. On April 26, 1990, he was referred to prosthetics for a soft elastic wrap for his knee. By a rating decision of February 1990, service connection was granted for postoperative residuals, right meniscectomy, and a zero percent rating was assigned, effective from September 25, 1989, the date of the veteran's claim. In April 1990, the veteran expressed disagreement with the rating assigned. Between April 1991 and September 1991, the veteran was seen for his continuing complaints of right knee pain, and an inability to stoop. By September 1991, the examiner's impression was a torn medial meniscus. The veteran was scheduled for orthopedic consultation for January 1992, but failed to appear. The veteran appeared at the VA clinic in April 1992, still complaining of pain, and indicating that his medication had run out. Upon examination, the veteran was noted to be limping, his right knee was tender, and it had a decreased range of motion. By June 1992, it was noted that a prior MRI scan had been interpreted as showing Grade III posterior medical meniscus changes. There was an assessment of probable meniscal tear. Arthroscopic surgery was to be considered. The veteran was admitted to the VA hospital for surgery on July 14, 1992. On July 15, 1992, a right knee arthroscopy with a partial medial meniscectomy was performed. The veteran was discharged on July 16, 1992, with diagnoses of right medial meniscal degeneration, and chondromalacia of the right knee. By a rating decision of September 1992, the veteran was granted a 100 percent rating for high right knee disability under the provisions of 38 C.F.R. § 4.30, with the assignment of a zero percent rating from September 1, 1992. By a December 1992 rating decision, he was granted a 10 percent rating for the knee disability from September 1, 1992. In January 1993, he expressed disagreement with the effective date of the 10 percent rating. Under the law, 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. Percentage evaluations are determined by comparing the manifestations of a particular disorder with the requirements contained in VA's Schedule for Rating Disabilities, 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (1993). A disability of the knee can be rated under various diagnostic codes. The RO has assigned a 10 percent evaluation for the veteran's left knee disorder under the provisions of Diagnostic Code 5257. 38 C.F.R. § 4.71. Under Diagnostic Code 5257, the presence and severity of recurrent subluxation or lateral instability are determinative of the rating assigned. Slight impairment of either knee with recurrent subluxation or lateral instability warrants a 10 percent evaluation. However, in the alternative, the veteran's knee disability could be rated under Diagnostic Code 5259 which provides a 10 percent rating for removal of the semilunar cartilage, symptomatic. Id. Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. However, as pertains to increased disability compensation, the effective date of an award of increased compensation is the earliest date as of which it is factually ascertainable that an increase in the disability had occurred, if the claim is received within 1 year from such date, otherwise, it will be the date of receipt of claim. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. Although the veteran underwent right knee surgery during service in the 1960's he did not file a claim for service connection until 1989. Therefore, the date of his claim would be the earliest date for awarding disability compensation. The evidence shows that the veteran was seen by the VA in 1987 for right knee complaints. He was again seen in 1989; in fact he visited an outpatient clinic on September 21, 1989, only a few days before his initial claim was received by the VA. At that time, he complained of knee pain as he did when seen in 1987 and when seen subsequent to September 21, 1989. While objective findings have been relatively minimal, the criteria for a 10 percent rating under Diagnostic Code 5259 require only that there be symptomatic residuals of removal of the semilunar cartilage. The Board finds that the veteran's knee disability closely approximated those criteria at the time his initial claim was filed. Since he has timely pursued this matter since the original assignment of a zero percent rating, the Board concludes that there is a reasonable basis for awarding him a 10 percent rating from the date of receipt of his claim, September 25, 1989. ORDER The veteran's claim of entitlement to service connection for post-traumatic stress disorder is dismissed. An effective date of September 25, 1989, for an evaluation of 10 percent for a right knee disorder is granted, subject to the law and regulations governing the criteria for the payment of monetary benefits. JANE E. SHARP Member, Board of Veterans' Appeals 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.