BVA9505284 DOCKET NO. 91-22 232 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to an increased evaluation for the residuals of a neck injury, status post C5-6 laminectomy for a herniated nucleus pulposus, currently evaluated as 30 percent disabling. 2. Entitlement to service connection for an acquired psychiatric disorder. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and his father ATTORNEY FOR THE BOARD L. M. Barnard, Counsel INTRODUCTION The veteran served on active duty from November 1982 to March 1987. This appeal arises from a July 1989 rating decision of the Cleveland, Ohio, Department of Veterans Affairs (VA), Regional Office (RO), which denied entitlement to the benefits sought. In November 1990, the veteran and his father testified at a personal hearing; following this hearing, the hearing officer issued a decision which confirmed and continued the denials in February 1991. In January 1992, this case was remanded by the Board of Veterans Appeals (Board) for further development. Following compliance with this remand, the RO issued a rating action which continued the denials of the benefits in February 1994. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends, in essence, that the residuals of his service-connected neck injury are more disabling than the current disability evaluation would suggest. He asserts that he is unable to move his neck without experiencing a great deal of pain. He further notes that the laminectomy that he underwent in late 1988 provided him with no relief. Therefore, he is of the opinion that a greater disability evaluation should be assigned to this disability. The veteran also contends that service connection should be granted for his currently diagnosed paranoid schizophrenia. He states that he first became nervous in service and that he suspected that something was wrong. He stated that when he told an Air Force doctor that he thought people were after him, he was told that it was only his imagination. He also notes that schizophrenia was first diagnosed during a January to March 1988 VA hospitalization, clearly within one year after his separation from service. Therefore, he asserts that service connection should be granted for this disability. 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 preponderance of the evidence is against his claim for an increased evaluation for his service-connected neck injury residuals, but supports a finding of entitlement to service connection for paranoid schizophrenia. FINDINGS OF FACT 1. The veteran's neck injury residuals are manifested by severe limitation of motion and pain upon all motions. 2. Chronic paranoid schizophrenia was first manifested to a compensable degree within one year of separation from active duty. CONCLUSIONS OF LAW 1. The criteria for a 40 percent disability evaluation for the veteran's service-connected neck injury residuals have not been met. 38 U.S.C.A. §§ 1155, 5107(a) (West 1991); 38 C.F.R. § 3.321, Part 4, including §§ 4.1, 4.2, 4.7, 4.10,4.20, 4.40, Codes 5287, 5290 (1994). 2. Chronic paranoid schizophrenia may be presumed to have been incurred in active service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137, 5107(a) (West 1991); 38 C.F.R. §§ 3.303, 3.307, 3.309 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran's claims are well grounded within the meaning of 38 U.S.C.A. § 5107(a). That is, we find that he has presented claims which are plausible. We are also satisfied that all relevant facts have been properly developed. The record is devoid of any indication that there are other records available which should be obtained. Therefore, no further development is required in order to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a). I. Entitlement to an increased evaluation for neck injury residuals. Under the applicable criteria, disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1994). When a question arises as to which of two evaluations shall be assigned, the higher evaluation will be assigned of 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 (1994). Initially, we note that when an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. Conjectural analogies will be avoided, as will the use of analogous ratings for conditions of doubtful diagnosis, or for those not fully supported by clinical and laboratory findings. Nor will ratings assigned to organic diseases and injuries be assigned by analogy to conditions of functional origin. 38 C.F.R. § 4.20 (1994). VA has a duty to acknowledge and consider all regulations which are potentially applicable based upon the assertions and issues raised in the record and to explain the reasons used to support the conclusion. Schafrath v. Derwinski, 1 Vet.App. 589 (1991). These regulations include, but are not limited to, 38 C.F.R. § 4.1, that requires that each disability be viewed in relation to its history and that there be an emphasis placed upon the limitation of activity imposed by the disabling condition, and 38 C.F.R. § 4.2 which requires that medical reports be interpreted in light of the whole recorded history, and that each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.10 states that, in cases of functional impairment, evaluations are to based upon lack of usefulness, and medical examiners must furnish, in addition to etiological, anatomical, pathological, laboratory and prognostic data required for ordinary medical classification, full description of the effects of the disability upon a person's ordinary activity. This evaluation includes functional disability due to pain under the provisions of 38 C.F.R. § 4.40. These requirements for the evaluation of the complete medical history of the claimant's condition operate to protect claimants against adverse decision based upon a single, incomplete or inaccurate report and to enable VA to make a more precise evaluation of the disability level and any changes in the condition. According to the applicable regulations, a 30 percent disability evaluation is warranted for severe limitation of the cervical spine. 38 C.F.R. Part 4, Code 5290 (1994). A 40 percent disability requires unfavorable ankylosis of the cervical spine. 38 C.F.R. Part 4, Code 5287 (1994). A review of the record indicates that the veteran initially injured his neck in service when he fell from a ladder. He was subsequently treated while on active duty for complaints of neck pain and stiffness. Following his release from active duty, the veteran was seen on an outpatient basis by VA. In April 1987, he complained of continuing neck pain and headaches. All ranges of motion of the neck were to 30 degrees. No sensory deficits were noted. He was then hospitalized in June 1987 with complaints of chronic neck pain. In July 1987, the veteran was examined by VA, at which time marked limitation of neck motion was described. Flexion was to 15 degrees and extension was about 2 degrees beyond the neutral. Rotation was to 15 degrees bilaterally, while side bending was to 15 degrees on the right and to 10 degrees on the left. He reported decreased sensation to pinprick on the left side of the neck to the shoulder. An x-ray revealed no fracture or dislocation. The impression was chronic cervical strain with severe spasm and limitation of motion. A VA outpatient treatment record from July 1987 noted the same complaints of pain. There were muscle spasms present, and there was good motor strength bilaterally. A sensory examination was intact to light touch. The assessment was neck muscle spasms. In August 1987, a neurological examination was performed. This revealed normal muscle bulk and strength. The sensory examination was also within normal limits. The impression was history of neck trauma and chronic neck pain and stiffness with no neurological deficits. A private hospital report from August 1987 revealed that the veteran was seen in the emergency room after being involved in a motor vehicle accident. He complained of neck, back, leg and arm pain. An x-ray of the cervical pain was negative. Multiple soft tissue trauma was diagnosed. In October 1987, the Post Office dismissed the veteran from his position as a casual clerk due to his cervical strain. The veteran was hospitalized at a VA facility between January and March 1988 after complaining of increasing neck pain, with occasional bilateral arm pain. Movement was severely limited by this pain. A Magnetic Resonance Imaging study revealed a herniated nucleus pulposus at the C5-6 level. There was tenderness at this level and muscle spasm. Flexion was to 20 degrees, extension was to 10 degrees and bilateral lateral bending was to 20 degrees. A neurological examination was essentially unremarkable. He was admitted for elective surgery, but this postponed after the veteran suffered a psychotic break during the hospitalization. In July 1988, the veteran was re-examined by VA. He complained of soreness and stiffness and noted that he always wore a cervical collar. There was a question of a little bit of radiculopathy in the left arm with some paresthesias. Past EMG's were negative. The objective examination noted that he held his neck in a rigid position once the cervical collar was removed. There was generalized tenderness and soreness noted along the neck, and he could only move to the sides for about 10 to 20 degrees. Flexion and extension were limited to 10 to 20 degrees because of pain. There was no evidence of muscle atrophy and the neurological examination was normal. The diagnosis was chronic cervical strain. A second examination performed by VA in October 1988 noted the veteran's complaints of increasing neck pain that was radiating into his shoulders. Any motion was noted to aggravate this pain. The objective examination revealed that his neck was tender and sore. He held his neck rigidly and would hardly move it at all. Rotation was to 10 degrees bilaterally, and flexion and extension were to 10 degrees. There was good motor strength and normal sensation in the upper extremities. An x-ray showed no evidence of arthritis. The diagnosis was residual injury to the cervical spine. The veteran was re-hospitalized by VA between October and November 1988. At that time, he was noted to have pain in the lower cervical and intrascapular areas to palpation, as well as pain with axial compression. The left biceps and left grip displayed 4/5 muscle strength. An x-ray showed straightening of the normal cervical curvatures. He then underwent an anterior cervical diskectomy at the C5-6 level and a bone graft fusion taken from the left iliac crest. The microscopic examination confirmed the presence of a herniated nucleus pulposus (HNP). Following the surgery, there were no neurological signs present. The diagnosis was HNP with C5-6 radiculopathy. The veteran and father testified at a personal hearing in November 1990. He commented during this hearing that the neck surgery had been completely useless, because it had failed to relieve his neck pain. His neck was still stiff, with pain that continued to radiate into his shoulders. He stated that the residuals of this neck injury also included headaches that occurred about ten times per month, and which lasted for two days at a time. In January 1994, the veteran was examined by VA. He noted that there had been no improvement in his condition following his 1988 neck surgery. He commented that he still wore a cervical collar. His chief complaint revolved around continuing pain in the neck, that was aggravated by any movement or by cold weather. The objective examination revealed that he had 5 degrees of forward flexion and extension; 10 degrees of bilateral lateral flexion; and 15 degrees of bilateral rotation. There was tenderness at the C5-6 level and muscle spasm. Strength in both upper extremities was good. There was no evidence of neurological involvement. A review of an August 1993 x-ray report indicated that there was a fusion at the C5-6 level, with no evidence of fracture or dislocation. The diagnosis was residuals post- operative cervical fusion C5-6 with severe limitation of motion. After a careful review of the evidence of record, the undersigned concludes that a 40 percent disability evaluation for the veteran's service-connected neck injury residuals is not warranted. In order to justify a 40 percent disability for these residuals, the evidence would have to demonstrate that the cervical spine is unfavorably ankylosed. However, the objective evidence reveals that, while motion of the neck is severely limited, it is still possible. Since movement is still possible, the veteran's neck is not unfavorably ankylosed. Therefore, a 40 disability evaluation under Code 5287 cannot be granted. Moreover, an extraschedular evaluation under 38 C.F.R. § 3.321 (1994) is not warranted. The record does not indicate that this disability has resulted in frequent periods of hospitalization. In fact, the last time that he was hospitalized for this condition was in 1988. Nor has this disability alone caused marked interference with employment; rather, his difficulties with employment appear to be caused by his psychiatric disorder. Therefore, the undersigned concludes that the preponderance of the evidence is against the veteran's claim for an increased evaluation for his service-connected neck injury residuals. II. Entitlement to service connection for an acquired psychiatric disorder. Under the applicable criteria, service connection may be granted for a disability the result of disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131 (West 1991). Where a veteran has served for 90 days or more during a period of war and a psychosis, such as schizophrenia, becomes manifest to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1994). For the showing of a chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or diagnosis including the word "chronic." Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. 3.303(b) (1994). A review of the service medical records, included a reference to a self-referral to the Mental Health clinic on June 26, 1984 for counseling concerning anxiety, which was apparently related to medical problems in his family. On July 24, 1984, the veteran again reported to the clinic noting that he was ambivalent about remaining in the military. It was commented that he appeared to lack some insight, and there was some question as to alcohol use. On December 18, 1984, he was evaluated for overseas duty. He was unhappy with his assignment to Washington state, noting that he was glad that he was being transferred to Korea. The assessment was that there was no mental health problem which would preclude overseas assignment. There was some attitudinal problem, but there was no maladaptive behavior indicated. On September 15, 1986, he was sent to the Mental Health clinic due to chronic marijuana use over the past four months. He had a history of a chronic depressed mood and he showed evidence of grandiosity. When he used marijuana, he claimed that he could hear God talking to him, although exactly what was being said was unclear. Later he commented it was more like feeling the presence of God. The assessment was marijuana user; possibly underlying disorder, such as a personality disorder versus an affective disorder. On October 11, 1986, he reported to sick call, noting that mess hall food made him sick. He was noted to he belligerent, hostile, and threatening. The impression was antisocial behavior. The February 1987 separation examination noted his complaints of nervousness, which was apparently precipitated by personal problems. The objective examination revealed that he was psychiatrically normal. After service, the veteran was seen on an outpatient basis by VA for his neck. In May 1987 it was noted that he had an odd affect. He was admitted to a VA facility in June 1987 with complaints of abdominal pain. Again, his odd affect was commented upon. During the admission examination he was irritable, displayed a bizarre affect and was relatively uncooperative. Between January and March 1988, the veteran was hospitalized at a VA facility to undergo elective surgery for his neck. However, just prior to the scheduled surgery, he became very agitated. A psychiatric consult was obtained, which found him to be psychotic and delusional. It was noted that this appeared to be his first psychotic break. A history of heavy drug use was noted. While on the Orthopedic floor, he attempted to jump out of a window, after which he was transferred to the Psychiatric ward. He was very anxious and was physically restrained. While he was argumentative, he did respond to directions. He was placed on Navane and his anxiety and agitation decreased. He was actively hallucinating and was markedly delusional; however, these symptoms also improved on the Navane. Once he was stabilized, he was transferred to another VA facility, where he insisted he was fine. However, he did admit that he had been delusional and paranoid when he was on the surgical ward. He said that he had heard voices that had told him to jump out of the window. On February 10, he admitted that he had lied about his symptoms because he was afraid of being hospitalized for a long period. He then recounted that he had heard voices that had made derogatory comments about him and that urged him to hurt himself. He believed that the forces of good and evil were in conflict in his body. A mental status examination performed on Febraury 10 found a flat affect and some inappropriate laughter. There was no looseness of association, although he did display paranoid ideation. He believed that people were watching and spying on him. Psychological testing revealed probable schizopreniform illness. He improved on medication, but it was noted that he tended to minimize his symptoms so that he could get out of the hospital. However, he did not appear to be anxious and he was not actively hallucinating. He was allowed to go on two passes to his parent's home, which he handled well. It was decided to discharge him at that point. The diagnosis was schizophrenoform illness, on Navane, with apparent resolution of psychotic symptoms. The veteran was re-hospitalized at a VA facility between May and June 1988. His parents brought him in, stating that he had been crying for two days, and had experienced an apparent "blackout." He said that he had found himself standing on a bridge and he had no recollection of how he got there. He complained of depression ever since his girlfriend had left him. He also admitted to the abuse of alcohol, marijuana and cocaine. The mental status examination upon admission noted that his affect was flat, his mood was dull and his speech was not spontaneous. His concentration was very poor, and he was not delusional or suffering from auditory hallucinations. He was disoriented in three spheres. Instead of being compliant with his Navane regimen, he was apparently using marijuana and cocaine. When he spoke to other patients, he appeared to be jovial, but was very bleak when he was interviewed, commenting that he had constant auditory hallucinations. The psychological studies suggested that he was feigning his illness so that he could stay in the hospital and get greater benefits. The diagnoses were schizo- affective disorder, depressed; and dependent personality disorder. VA outpatient treatment records from July to August 1988 revealed that he had stopped taking his medication because he thought it had caused a rash on his feet. His thinking was noted to illogical, his affect was flat, and he denied hallucinations or delusions. An October to November 1988 VA hospitalization reflected his bizarre affect. The diagnosis was schizophrenia, treated, improved. The veteran was again hospitalized by VA between January and March 1989. He was admitted due to violent and threatening behavior. He was still abusing drugs and alcohol. He had also been very delusional, which was manifested by grandiosity and suspiciousness. He again recounted hearing voices. Upon admission, it was noted that the mental status examination was conducted with the veteran in full leather restraints. His affect was blunted and his mood was anxious. He was unkempt and suicidal. He was oriented to place and person, but not to time. There was looseness of association, and delusions of grandeur and persecution. His thinking was concrete and he had no insight and poor judgment. On the ward, he was hostile, profane and potentially dangerous to self and others. He was initially kept in restraints and was placed on suicide watch. Both of these precautions were discontinued the following day. Once he was placed on appropriate medications, his hallucinations and delusions diminished markedly. In March , a visit home had to be canceled because he had threatened to cut his parents into pieces and put them into plastic bags. His medication was changed to Haldol. The Axis I diagnoses were chronic paranoid schizophrenia, with acute exacerbation, and polysubstance abuse. The Axis II diagnosis was mixed personality disorder. A VA outpatient treatment record from March 1990 noted that his schizophrenic symptoms were in good remission. In November 1990, the veteran and his father testified at a personal hearing at the RO. He stated that he first became aware that he had a mental problem during the January 1988 hospitalization. He stated that he had become very paranoid and had tried to jump out of a window. When he was transferred to the psychiatric ward, he was told that he had paranoid schizophrenia. He then commented that he had told a doctor in the Air Force that he thought people were after him. This doctor told him that it was all his imagination, and sent him back to duty. He said that he had never been told that he had a personality disorder; rather, he was always told that he had paranoid schizophrenia. His father testified that the veteran had recently become very paranoid again, and he had thought that he would have to re-hospitalize his son. Again, the veteran noted that his psychiatric problems had begun in January 1988. While his father noted that he was always somewhat nervous in service, he did not become paranoid until after his discharge. In fact, he stated that the veteran had covered his bedroom windows with foil, so that the neighbors, whom he referred to as CIA or FBI, could not watch him. In August 1994, the veteran's mother submitted a statement wherein she noted that the veteran's symptoms first manifested during the one year period after service. After a careful review of the evidence of record, it is the conclusion of the undersigned that entitlement to service connection for paranoid schizophrenia is justified. Initially, it is noted that there was some suggestion of an underlying personality disorder versus an affective disorder in service. Antisocial behavior was also referred to. However, no diagnosis of schizophrenia was made. Therefore, service connection on a direct basis is not warranted. However, service connection may also be granted for certain disabilities, to include schizophrenia, which manifest themselves to a compensable degree within one year of separation from service. In this case, the veteran was hospitalized at a VA facility between January and March 1988. At that time, he was displaying auditory hallucinations, which compelled him to attempt to jump out of a window, and paranoid delusions. He felt that he was being watched and spied on. He believed that good and evil were in conflict in his body. He was noted to be clearly psychotic. Psychological testing revealed the presence of probable schizophrenoform illness. Clearly, this evidence reveals that the veteran first manifested schizophrenic symptoms within one year of his discharge. Moreover, these symptoms clearly manifested to a compensable degree. The fact that he was actively hallucinating and displayed paranoid delusions argue in favor of a finding that this illness produced at least mild industrial and social impairment at that time. Therefore, the undersigned finds that service connection on a presumptive basis is warranted by the evidence of record. In conclusion, it is found that the evidence supports a finding of entitlement to service connection for chronic paranoid schizophrenia. ORDER An increased evaluation for neck injury residuals is denied. Service connection for paranoid schizophrenia is granted. KENNETH R. ANDREWS, JR. 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.