Citation Nr: 0002790 Decision Date: 02/04/00 Archive Date: 02/10/00 DOCKET NO. 94-48 728 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for post-traumatic stress disorder (PTSD). 2. Entitlement to service connection for arthritis of the back, shoulders, neck, and legs. 3. Entitlement to an evaluation in excess of 50 percent for muscular atrophy. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Howard M. Scott, Associate Counsel INTRODUCTION The veteran served on active duty from February 1944 to January 1946, and from April 1948 to July 1953. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a March 1994 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The case was remanded in December 1996 and has been returned to the Board for appellate review. FINDINGS OF FACT 1. The veteran was involved in combat during active service. 2. The veteran was diagnosed with mild anxiety in service. 3. The veteran has been diagnosed with PTSD, based in part, on coming under enemy naval and air attack, including attack from kamikaze airplanes. 4. There is no competent medical evidence of a nexus between arthritis of the back, shoulders, neck, and legs and service connected muscular atrophy or any incident or manifestation during the veteran's period of active service. 5. Progressive muscular atrophy is not manifested by localized or focal muscular atrophy and neurological examination was normal. CONCLUSIONS OF LAW 1. PTSD was incurred in service. 38 U.S.C.A. § 1110, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.304(f) (1999). 2. The veteran's claim of entitlement to service connection for arthritis of the back, shoulders, neck, and legs is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 3. The scheduler criteria for an evaluation in excess of 50 percent for progressive muscular atrophy have not been met. 38 U.S.C.A. § 1155, 5107 (West 1991); 38 C.F.R. §4.124a, Diagnostic Code 8023 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. PTSD As a preliminary matter, the Board finds that the veteran's claim for service connection for PTSD is "well grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991), based on the February 1994 VA examination report that noted a diagnosis of PTSD due to combat experiences. See Murphy v. Derwinski 1 Vet. App. 78, 81 (1990); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). That is, the Board finds that the veteran has presented a claim which is not implausible when his contentions and the evidence of record are viewed in the light most favorable to that claim. The Board is also satisfied that all relevant facts have been properly and sufficiently developed. Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125, a link, established by medical evidence, between current symptomatology and an in-service stressor, and credible supporting evidence that the claimed in-service stressor occurred. If the evidence establishes that the veteran engaged in combat with the enemy, and the claimed stressor is related to that combat, the veteran's lay statements alone may establish occurrence of the claimed in- service stressor, in the absence of clear and convincing evidence to the contrary and provided that the claimed stressor is consistent with the circumstances, conditions or hardships of the veteran's service. 38 C.F.R. § 3.304(f) (1999). Where the claimed stressor is not related to combat, "credible supporting evidence" means that "the appellant's testimony, by itself, cannot as a matter of law, establish the occurrence of a noncombat stressor." Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). The veteran's service personnel records indicate that his military occupational specialty (MOS) was initially as a baker and then as a butcher and head meat cutter. His duty stations included service onboard Landing Ship Tank (LST) 554. The awards and decorations listed on his DD 214 and elsewhere in his service records do not indicate that the veteran was involved in combat. The veteran has testified, however, that he saw combat in the Pacific Ocean both in World War II and Korea. He maintains that, while he served as a baker onboard LST 554 in World War II, he was also the first loader of twin 40 mm guns on the ship, and his duties involved loading clips of four rounds of ammunition into the guns while the gunner fired on incoming enemy aircraft. He maintains further that he was involved in a number of landings in the Philippines, including the Leyte landings, and that during these landings, his ship and others in his flotilla came under artillery fire, as well as fire and kamikaze attack from enemy aircraft. In addition, his ship and others in his flotilla were attacked by enemy dive bombers and kamikaze airplanes on a number of occasions when crossing the open sea. He said a kamikaze airplane missed his own ship by no more than ten feet, and that he witnessed other ships get hit by kamikaze airplanes and dive bombers. In addition, the veteran has reported participating in combat situations during the Korean War. While it is not absolutely clear from the veteran's statements, it appears that he claims to have participated in opposed landings, and that he also once participated in the removal of bodies from a US ship that had been extensively damaged by enemy action, and that many of the bodies were badly mangled. This case was remanded in December 1996, in part in order to attempt to corroborate the veteran's statements. In May 1998, a response was received from the United States Army & Joint Services Environmental Support Group (ESG), now known as the United States Armed Services Center for Research of Unit Records (USASCRUR). The veteran's service personnel records indicate that he served onboard LST 544 beginning in July 1944. It is difficult to decipher from these records exactly when he was transferred from that vessel, but by December 1945 he was transferred to Camp Elliott in San Diego, California. Documents supplied by USASCRUR show that LST 554 participated in the capture and occupation of the southern Palau Islands in September and October 1944, landings at Leyte in October and November 1944, landings at Lingayen Gulf in January 1945, and the assault and occupation of Okinawa Gunto in April 1945. The Allied invasion fleet at Leyte came under enemy air and naval attack. In addition, the invasion fleet at Lingayen Gulf came under kamikaze airplane attack for four days. Finally, the invasion fleet at Okinawa also received extensive damage from kamikaze attacks, with 25 ships sunk and 165 damaged. In view of the service records that indicate that the veteran served onboard a vessel during a period when that vessel participated in operations that are known to have involved enemy air and naval attack, the Board finds that the veteran was involved in combat. See 38 C.F.R. § 3.304(f); Cohen v. Brown, 10 Vet. App. 128, 145 (1997). Service medical records from the veteran's first period of service noted that the veteran was diagnosed with mild anxiety upon separation from his first tour of duty. There were no mental defects noted during his reentry examination, and there were no complaints of, or treatment for, any psychiatric disorder noted during his second tour of duty. During his second period of duty, the veteran developed muscular atrophy and was ultimately separated from service as medically unfit for duty. Prior to separation, he received several comprehensive medical evaluations in order to determine the nature of the disorder. It appears that he was not given the standard general separation physical examination. In any event, the reports from the examinations that he was given did not indicate the presence of any psychiatric disorder or abnormality. The report from a VA examination conducted in January 1954 included the diagnosis of anxiety reaction, mild. The veteran received another VA examination in December 1956 and no psychiatric disorder was diagnosed. A February 1994 VA examination report noted a diagnosis of PTSD. The examiner indicated that the veteran's stressors included being part of a fleet of vessels that came under enemy aircraft attack, including kamikaze attack, while serving onboard vessels in the Pacific, and handling body parts from a vessel that had been severely damaged during an enemy attack. As noted above, USASCRUR has confirmed that the veteran's ship was part of a fleet of vessels that, on a number of occasions during WWII, came under enemy naval and air attack, including attack from kamikaze airplanes, and that a number of vessels were lost, with many more damaged. In light of the fact that the veteran was involved in combat, and the diagnosis of PTSD linked, in part to coming under enemy naval and air attack, including attack from kamikaze airplanes, as well as the diagnosis of mild anxiety both during service and shortly after separation from service, the Board concludes that the veteran's PTSD was incurred in service and service connection for that disability is established. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.304(f). II. Arthritis The veteran contends that arthritis of the back, shoulders, neck, and legs, was incurred in service. In the alternative, he contends that arthritis is secondary to service connected muscular atrophy. Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty or for aggravation of a preexisting injury or disease contracted in line of duty. 38 U.S.C.A. §§ 1110, 1131. Arthritis may be presumed to have been incurred in service when it is manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Regulations provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection shall be granted for any disability which is proximately due to, the result of, or for the degree of aggravation caused by a service connected disease or injury. 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439, 448 (1995). Before reaching the merits of the veteran's claim, the threshold question which must be answered in this case is whether the veteran has presented a well-grounded claim for service connection. A well grounded claim is a plausible claim, one which is meritorious on its own or capable of substantiation. In this regard, the veteran has "the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded." 38 U.S.C.A. § 5107(a) (West 1991); Grivois v. Brown, 6 Vet. App. 136, 140 (1994); Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). If the evidence presented by the veteran fails to meet this threshold level of sufficiency, no further legal analysis need be made as to the merits of the claim. Boeck v. Brown, 6 Vet. App. 14, 17 (1993). In order for a claim to be well grounded, there must be competent evidence of current disability (established by medical diagnosis); evidence of incurrence or aggravation of a disease or injury in service (established by medical, or in some cases lay, evidence); and competent evidence of a nexus between the inservice injury or disease and the current disability (established by medical evidence). See generally Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997) cert. denied sub nom. Epps v. West, 118 S. Ct. 2348 (1998). The chronicity provision of 38 C.F.R. § 3.303(b) is applicable where evidence, regardless of its date, shows that a veteran had a chronic condition in service or during an applicable presumption period, and still has such condition. Such evidence must be medical unless it relates to a condition as to which, under he court's case law, lay observation is competent. If the chronicity provision is not applicable, a claim may still be well grounded on the basis of 38 C.F.R. § 3.303(b) if the condition is observed during service or any applicable presumption period, continuity of symptomatology is demonstrated thereafter, and competent evidence relates the present condition to that symptomatology. Savage v. Gober, 10 Vet. App. 488, 498 (1997). Service medical records noted no complaints of, or treatment for, any symptoms attributable to arthritis of the back, shoulders, neck, and legs. The report from the examination conducted upon separation from his first period of duty indicated no abnormalities of the spine and extremities. During his second period of duty, the veteran developed muscular atrophy and was ultimately separated from service as medically unfit for duty. Prior to separation, he received several comprehensive medical evaluations in order to determine the nature of his disorder. None of these evaluations indicated the presence of arthritis. Neither private medical records from December 1953, nor the report from a January 1954 VA examination contained a diagnosis of arthritis. The veteran received treatment from the military hospital at Fort Leonard Wood, Missouri, for a number of different disorders between February 1969 and February 1995. Acromioclavicular degenerative joint disease was diagnosed in April 1973. The veteran received another VA examination in March 1981. X-rays of the thoracic and cervical spine were noted to be normal. X-rays of the lumbar spine revealed "very minimal degenerative arthritic changes, otherwise normal lumbar spine." X-rays of both shoulders and elbows were noted to be normal. Additional treatment records from Fort Leonard Wood, from November and December 1983, noted that the veteran complained of right neck and arm pain. X-rays indicated degenerative changes, and cervical spondylosis was diagnosed. In December 1984, the veteran was diagnosed with right shoulder impingement syndrome and in January 1985, with acromioclavicular arthritis. By April 1987 the veteran had "significant arthritis" and right shoulder impingement, and he underwent an acromioplasty. In December 1990 and February 1992, the veteran complained of back pain. In November 1992, there were degenerative changes with minimal osteophytes at L3 through L5, and moderate osteopenia. A VA X-ray of the shoulders was taken in November 1993. The radiologist stated that "appearance of the shoulder is fairly normal for the age of the patient." Another VA examination was conducted in February 1994. The veteran complained of a 40 year history of neck pain. He also complained of chronic, non-radicular back pain at the beltline, and bilateral shoulder pain with locking of the right shoulder joint, and limitation of motion of the left shoulder joint. Following physical examination of the veteran, the examiner diagnosed suspect moderate to severe osteoarthritis of the neck, suspect osteoarthritis of the lumbosacral spine, and status post repair surgery to the right shoulder with improvement of arthritis symptoms, although the examiner indicated that bilateral osteoarthritis was still present with moderate to severe pain of the left shoulder. The examiner indicated that X-rays of all the joints were pending. Following a series of X-rays, the radiologist's impression was degenerative changes of the cervical spine, cannot exclude changes of discogenic disease. X-rays of the lumbosacral spine indicated small osteophytes in the spine consistent with degenerative changes, osteopenia consistent with the age of the patient, and a slight scoliosis of the spine. X-rays of the knees indicated mild degenerative changes at the knees. X-rays of the shoulders indicated old post surgical changes of lateral resection and absence of the right clavicle. In March 1994, X-rays taken at Fort Leonard Wood indicated minimal spurring at several lower thoracic vertebral bodies. At his personal hearing in February 1995, the veteran testified that arthritis of the right shoulder was first diagnosed in 1953 by a private physician in Oakley, California, but that he could not obtain those medical records because he could not remember the doctor's name or address. He further testified that he received treatment for arthritis of the hip and back in service and continued to receive treatment for arthritis of the back at Fort Leonard Wood, from 1956 on. He said that he was told at the time that he had calcium deposits in his back. Following the veteran's personal hearing, the RO obtained the treatment records from Fort Leonard Wood. As noted above, these contained records of treatment from February 1969 to February 1995. Correspondence from the records department at Fort Leonard Wood indicated that no additional records were available. The contents of the available records have been discussed above. Correspondence received in June 1998 from a VA nurse indicated that the veteran had been receiving care for numerous disorders, including arthritis. Following a careful review of all the evidence in this case, the Board finds that the veteran has not met all of the requirements for a well-grounded claim. Significantly, there is no competent evidence of a diagnosis of arthritis in service, or within one year of service. The earliest documented medical evidence of arthritis is not until April 1973. Furthermore, there is no competent medical evidence of a nexus between arthritis and either service, or a service- connected disability. The veteran has indicated that arthritis is either due to service, or to service-connected muscular atrophy. As a layperson, however, the veteran is not competent to provide an opinion requiring medical knowledge, such as a question of medical relationship. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Because of the lack of competent evidence of a medical relationship between arthritis and either service, or a service-connected disability, the claim for service connection for arthritis of the back, shoulders, neck, and legs is not well grounded and must be denied on that basis. The Board is not aware of any information in this matter that would put the VA on notice that any additional relevant evidence may exist, which, if obtained would well ground the veteran's claim. See generally McKnight v. Gober, 131 F.3d 1483 (Fed. Cir. 1997). III. Increased Rating for Muscular Atrophy As a preliminary matter the Board finds that the veteran's claim is well grounded within the meaning of 38 U.S.C.A. § 5107(a). When a veteran is seeking an increased rating (as opposed to entitlement to service connection), an assertion of an increase in severity is sufficient to render the increased rating claim well grounded. Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). Service connection for progressive muscular atrophy, myelopathic, was granted in November 1953, and a 50 percent evaluation was assigned, effective August 1953. This decision was based on service medical records that noted that the veteran developed objective weakness of the upper and lower extremities, a forty pound weight loss, vertigo on exertion, visible fasciculations in the arms and shoulder girdles, and atrophy of the anterior tibial muscle groups bilaterally. A 24 hour urine sample contained 264 milligrams of creatinine and 102 milligrams of creatine. The veteran was diagnosed with progressive muscular atrophy, myelopathic, and was recommended for separation as medically unfit for duty. The 50 percent evaluation has remained in effect to the present. Medical treatment records from February 1969 and February 1995 from Fort Leonard Wood, Missouri, noted treatment for a number of different disorders, but did not indicate any treatment for progressive muscular atrophy. A VA neurological examination conducted in March 1981 noted an impression of "no neurologic disease." VA treatment records from November 1993 noted that the veteran complained of a two year history of pain, numbness, and tingling in the left arm. Following a series of nerve condition studies, the impression was "no signs of medial or ulnar neuropathy on left. Significance of isolated fasciculations in left [first dorsal interosseus] uncertain." In February 1994, the veteran submitted a statement from friend who said that he had known the veteran for the past 35 years, had worked with the veteran for the past 16 years, and that the veteran's health had recently been deteriorating to the point that the veteran "doesn't need to be working at all now." The veteran also submitted a letter from a private physician, dated in February 1994, who stated that the veteran should be considered permanently disabled due to a cardiac condition. The physician also mentioned that the veteran had severe arthritis and hypertension, but made no mention of muscular atrophy. At his personal hearing, the veteran testified that he felt weak in the arms and legs, and that his legs would sometimes "sleep." He also said that he suffered from headaches and blackouts, "sometimes two or three times a day," with dizziness and nausea. The veteran conceded that his symptoms were essentially unchanged since he was discharged from service, but argued that he felt that the initial rating assigned had always been too low. He indicated that his feelings of weakness pre-dated his cardiac condition, and that, due to incoordination or weakness in the arms and hands, he was unable to pick up small objects or write with a pen. In February 1998, the veteran submitted correspondence from David K. Showers, D.O., a private physician. Dr. Showers reported that the veteran complained that "he ha[d] problems performing his daily activities due to difficulty handling small objects and weakness in his arms and legs." Dr. Showers noted, however, that examination of the veteran revealed only muscle weakness, the exact extent of which Dr. Showers stated he was "unable to determine." He did not indicate that such weakness was due to muscular atrophy, nor did he offer a current diagnosis of muscular atrophy. Dr. Showers further stated that "range of motion appeared good," and that other body systems appeared normal. Correspondence received in June 1998 from a VA nurse indicated that the veteran had been receiving care for numerous disorders over the years. Muscular atrophy was not included among the disorders listed. A July 1998 VA examination report noted that the veteran complained of weakness, but denied numbness. The examiner stated that there was no evidence of striking or focal muscular atrophy. The veteran's station and gait were normal, he could walk on toes or heels without difficulty, cranial nerves II through XII were noted to be intact, and motor examination revealed normal strength, tone and volume throughout. Tendon reflexes were 2+ at the biceps and triceps, 1+ finger flexor, 3+ at the knees, and 2+ at the ankles. Plantar reflexes were flexor, and superficial and deep sensibility were intact in both lower extremities. Cerebellar function tests were performed normally. The examiner's diagnosis was that the neurological examination was normal, with no localized or focal muscular atrophy. Disability evaluations are based on the comparison of clinical findings with the relevant scheduler criteria. 38 U.S.C.A. § 1155. While a disability must be evaluated in relation to its history, 38 C.F.R. § 4.1, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). 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 (1999). Under 38 C.F.R. § 4.124a, except where otherwise noted, disability from neurological conditions and convulsive disorders may be rated from 10 percent to 100 percent in proportion to the impairment of motor, sensory or mental function. Psychotic manifestations, complete or partial loss of the use of one or more extremities, speech disturbances, impairment of vision, disturbances of gait, trembling, visceral manifestations, etc., are to be considered , with reference made to the appropriate bodily system of the schedule. Id. Under Diagnostic Code 8023, the minimum rating to be assigned for progressive muscular atrophy is 30 percent. For such a minimum rating, there must be ascertainable residuals. Subjective residuals will be accepted when consistent with the disease. When ratings in excess of the prescribed minimum ratings are assigned, the diagnostic codes utilized as bases of evaluation must be cited. 38 C.F.R. § 4.124a, note. The Board observes that progressive muscular atrophy has been evaluated as 50 percent disabling since the grant of service connection in November 1953, and there is no evidence to show that the rating was based on fraud. The 50 percent evaluation is therefore protected under 38 C.F.R. § 3.951(b). The Board notes, in addition, that the 50 percent evaluation is in excess of the minimum rating for the disability. However, the diagnostic codes used as bases for the evaluation have not been cited. The Board has considered remanding this case in order to determine which portions of the body are affected and thus which diagnostic codes are for consideration in this case. The Board finds, however, that the preponderance of the medical evidence indicates that the veteran currently suffers from no residuals related to muscular atrophy. The VA examination reports in March 1981 and July 1998 noted that the veteran's neurological examination was normal, and there was no evidence of muscular atrophy. Dr. Showers, the veteran's private physician noted only that the veteran suffered from generalized weakness, but Dr. Showers was unable to determine the extent of such weakness, and he did not indicate that such weakness was due to muscular atrophy, nor did he offer a current diagnosis of muscular atrophy. The veteran's medical records indicate that he has been treated for numerous disorders from February 1969 to the present, but do not indicate any treatment for muscular atrophy. In view of the lack of evidence of any current residuals of progressive muscular atrophy, the Board finds that no useful purpose would be served by remanding this case in order to determine which portions of the body would hypothetically be affected if symptoms were present, and thus which diagnostic codes are for consideration. In Winters v. West, 12 Vet. App. 203 (1999) the United States Court of Appeals for Veterans Claims (Court) noted that, while prejudicial error must be considered, the law does not require a useless act. While Winters involved the question of remanding a not well- grounded claim, as opposed to the present case which is well grounded, the Court in Winters, in affirming the Board, went on to note that the action would impose additional burdens upon the Board with no possibility of any benefit flowing to the appellant. The same principle applies in the present case because, as there are no current residuals, the preponderance of the evidence is against an increased evaluation, and consideration of various diagnostic codes by the RO would not result in such an increased evaluation. Accordingly, a remand for the RO to re-evaluate this disability is not warranted. The preponderance of the evidence is against an increased evaluation for progressive muscular atrophy, and, accordingly, the veteran's claim will be denied. ORDER Service connection for PTSD is granted. Service connection for arthritis of the back, shoulders, neck, and legs is denied. An evaluation in excess of 50 percent for muscular atrophy is denied. JAMES A. FROST Acting Member, Board of Veterans' Appeals