BVA9501611 DOCKET NO. 92-12 143 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to an increased rating for post-traumatic stress disorder, currently evaluated as 10 percent disabling. 2. Entitlement to restoration of service connection for degenerative arthritis of the right hand, residual of shell fragment wound. 3. Entitlement to restoration of service connection for degenerative arthritis of the left hand, residual of shell fragment wound. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. Ehrman, Associate Counsel INTRODUCTION The veteran had honorable active service from December 1941 to November 1945. The appeal comes before the Board of Veteran's Appeals (the Board) from a January 1991 rating decision of the Houston, Texas, Regional Office (the RO). The veteran appealed that determination's denial of entitlement to an evaluation in excess of 10 percent for post-traumatic stress disorder (formerly evaluated as anxiety). That determination also established service connection for degenerative arthritis, right hand, residual of a shell fragment wound, and degenerative arthritis, left hand, residual of a shell fragment wound. That rating decision assigned separate 10 percent evaluations for each of these two (2) disabilities. By a determination in December 1991, notice of which was provided in February 1992, the RO severed service connection for the hand disabilities based on a finding of clear and unmistakable error in the January 1991 rating decision as to those disabilities. The veteran's representative provided notice of disagreement with that determination in November 1992. The Board, by determination of April 1993, remanded the case for the completion of additional requested development. That Remand determination also directed that the RO develop the issues of entitlement to restoration of service connection for degenerative arthritis, right hand, residual of a shell fragment wound, and entitlement to restoration of service connection for degenerative arthritis, left hand, residual of a shell fragment wound. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends, in essence, that the RO erred in denying the claim for entitlement to an increased rating for post- traumatic stress disorder (formerly evaluated as anxiety) (PTSD herein), currently rated as 10 percent disabling. He claims that his service-connected PTSD includes nightmares, flashbacks, fear of thunderstorms and lightening, intolerance to stress, and anxiety. He contends that he has psychoneurotic symptoms bordering on gross repudiation of reality, which render him virtually isolated in the community and demonstrably unable to obtain or retain employment. He also essentially contends that the RO erred in severing service connection for degenerative arthritis, right hand, residual of shell fragment wound, and degenerative arthritis, left hand, residual of shell fragment wound. He contends that he received shell fragment wounds and injuries to his left and right hands in December 1944 when a shell exploded in the Headquarters Battery Kitchens of the 81st Field Artillery Battalion, while fighting in Europe. It is asserted that the evidence of record at the time of the January 1991 RO determination provided a basis for the grant of service connection. For reasons which will be outlined in the Remand portion of this decision, the issue of entitlement to an increased rating for PTSD will not be decided in this decision. 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 original grants of service connection for degenerative arthritis, right hand, residual of shell fragment wound, and degenerative arthritis, left hand, residual of shell fragment wound, are legally supportable, and restoration of service connection is therefore warranted. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's claims for entitlement to restoration of service connection for degenerative arthritis, right hand, residual of shell fragment wound, and for degenerative arthritis, right hand, residual of shell fragment wound, has been obtained. 2. The rating decision of January 18, 1991, which, in relevant part, established service connection for degenerative arthritis, right hand, residual of shell fragment wound, and which established service connection for degenerative arthritis, left hand, residual of shell fragment wound, was supported by the evidence of record at that time. CONCLUSION OF LAW The criteria for restoration of service connection for degenerative arthritis, right hand, residual of shell fragment wound, and for degenerative arthritis, left hand, residual of shell fragment wound, are met. 38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R. §§ 3.105, 3.303 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has found that the veteran's claims for restoration of service connection are well-grounded within the meaning of 38 U.S.C.A. § 5107 (West 1991); that is, he has presented claims that are plausible. Murphy v. Derwinski, 1 Vet. App. 78 (1990). The Board is also satisfied that all relevant facts have been properly developed, and neither the appellant, nor his representative contends that records not already associated with his claims file exist. Accordingly, the Board is satisfied that all relevant facts have been properly developed to their full extent and that the Department of Veterans Affairs (the VA herein) has met its duty to assist, as mandated by 38 U.S.C.A. § 5107 (West 1991). Based upon a review of the evidence then of record, including the available service medical records, post-service private and VA treatment records, the veteran's contentions, and the September 1990 VA surgical consultant report, the rating decision of January 18, 1991 established service connection for degenerative arthritis, right hand, residual of shell fragment wound, and service connection for degenerative arthritis, left hand, residual of shell fragment wound. By rating action of December 1991, the RO severed service connection under the provisions of 38 C.F.R. § 3.105 (1991), finding that the January 1991 grants of service connection for degenerative arthritis, right hand, residual of shell fragment wound, and degenerative arthritis, left hand, residuals of shell fragment wound, were clearly and unmistakably erroneous. The law in effect at the time of the January 18, 1991 RO determination provided that service connection may be established for a disability resulting from a personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury or disease in the line of duty. 38 U.S.C.A. §§ 1110, 5107 (West 1991). Regulations also provided that service connection may be granted for any disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (1990). The criteria that must be satisfied for severance of service connection are set forth in 38 C.F.R. § 3.105(a) (1993), the provisions of which stipulate, in pertinent part, that "[p]revious determinations on which an action was predicated, including decisions of service connection...will be accepted as correct in the absence of clear and unmistakable error." (Emphasis added). In addition, under the provisions of 38 C.F.R. § 3.105(d) (1993), "service connection will be severed only where evidence establishes that it is clearly and unmistakably erroneous (the burden of proof being upon the Government)." (Emphasis added). 38 C.F.R. § 3.105(d) (1993). Furthermore, the United States Court of Veterans Appeals (the Court) has held that "[a] determination that there was 'clear and unmistakable error' must be based on the record and the law that existed at the time of the prior...decision." Russell and Collins v. Principi, 3 Vet. App. 310, 314 (1992). The Board finds that this initial burden has not been met, and accordingly, restoration of service connection for degenerative arthritis, right hand, residual of shell fragment wound, and for restoration of service connection for degenerative arthritis, left hand, residual of shell fragment wound, is warranted. Service medical records reveal no indication of complaints, treatment, or diagnosis of shell fragment wounds. A November 1945 report of examination prior to discharge from service is silent as to any complaints, clinical findings, or diagnosis of shell fragment wounds, and the veteran's discharge document, Enlisted Record and Report of Separation Honorable Discharge, notes no wounds were received in action. Also of record at the time of the January 1991 rating decision were private medical records dated from March 1955 to May 1969, and VA examination reports, dated in June 1969 and June 1976, which are silent as to any complaints, clinical findings, treatment or diagnoses of residuals of shell fragment or shrapnel wounds. VA treatment records included X-ray reports, dated in March 1989 and September 1989, which show bilateral hypertrophic degenerative osteoarthritic changes involving the proximal and distal interphalangeal joints of both the right and left hands, with occasional radiopaque foreign bodies within the soft tissue of the left hand. There were sclerotic changes of the right and left first and second carpal-metacarpal joints, with a slight deformity of the base of the right first metacarpal bone, which had the appearance of post-traumatic osteoarthritic changes. X- rays of September 1989 were unchanged when compared with X-rays of March 1989. Later dated VA treatment records also indicate the veteran's complaints of pain in his hands, with notation of post-traumatic degenerative joint disease, secondary to shrapnel wounds received in World War II. In a statement dated in March 1990, a private physician reported the veteran "has fragments of shrapnel in both hands as a result of World War II injuries in battle." The veteran's claim for service connection, dated in March 1990, indicates that in Germany during WWII, he received treatment for shrapnel wounds to the right and left hands at the field aid station for the 81st Field Artillery. The September 1990 VA surgical consultation report notes this history of "shrapnel wounds to both hands in early 1945" while stationed in Germany. It was noted that the veteran reported that at the time of the injuries, he received a tetanus shot with no other treatment or complications. The veteran recalled complaining of stiffness in the fingers, approximately one year later, which later was accompanied with swelling of the knuckles and pain. The veteran complained of current weakness in the hands. Physical examination revealed multiple minimal hairline scars from shrapnel wounds over the dorsal aspect of both hands. Bilateral hand weakness, tremor, and swollen and tender metacarpophalangeal joints were noted. The diagnosis was severe arthritis of both hands following multiple shrapnel wounds, with progressively worsening disability, and residual foreign bodies. It was based upon a review of the above evidence, that the RO granted service connection for degenerative arthritis of the right and left hands as residuals of shell fragment wounds. The RO's December 1991 severance decision was based on findings that "[t]he evidence in file at that time did not show that the [veteran] incurred shell fragment wounds of the hand during his service nor did it show that he had degenerative arthritis of the hands during his service or within year following service discharge." The RO further elaborated on the probative value of evidence of record at the time of the grant of service connection. The U.S. Court of Veterans Appeals has held that in order for there to be clear and unmistakable error warranting revision of a previous decision, "[e]ither the correct facts, as they were known at the time, were not before the adjudicator or the statutory or regulatory provisions extant at the time were incorrectly applied." Russell and Collins v. Principi, at 313. Such error has not been demonstrated. No error of fact or law has been established. Rather, the January 18, 1991 grant of service connection is supportable by the then evidence of record applied to the then extant law, to include the provisions of 38 C.F.R. § 3.303(d). Whether or not a different adjudicatory panel may disagree as to how those facts were weighed or evaluated is not for consideration. A severance of service connection determination may not be based on no more than a disagreement as to how the facts were weighed or evaluated. Russell and Collins, at 313. As such, the severance of service connection was inappropriate, and criteria for restoration of service connection for degenerative arthritis, right hand, residuals of shell fragment wound, and the criteria for restoration of service connection for degenerative arthritis, left hand, residuals of shell fragment wound, are met. 38 U.S.C.A. §§ 1110, 5107(a) (West 1991); 38 C.F.R. §§ 3.105, 3.303 (1993). ORDER Restoration of service connection for degenerative arthritis, right hand, residual of shell fragment wound, is granted. Restoration of service connection for degenerative arthritis, left hand, residual of shell fragment wound, with retained foreign bodies, is granted. REMAND The Board notes that the veteran was last afforded a VA psychiatric examination in September 1990, a period of time well over 4 years ago, and the September 1990 VA psychiatric examination report is inadequate for determining the parameters of the PTSD diagnosis. The report indicates that the veteran's claims folder was not available, a Global Assessment of Functioning (GAF) score was not obtained, and a social and industrial survey was not conducted. Specifically, while the veteran reported flashbacks and recurrent intrusive thoughts about his war experiences, the examiner failed to indicate the frequency of such symptoms. Similarly, although the examiner noted that the veteran "cries frequently," the report fails to indicate the frequency, duration, or intensity of this symptom. His mood was noted as "about moderately depressed," and the diagnosis included indication that "past medical records are needed." The examiner diagnosed PTSD, however, without indication of severity of the condition. The Board has reviewed VA treatment records, dated from March 1990 to December 1993, with an eye to determining the severity of PTSD symptomatology from more recent records. Mental hygiene clinic records of November 1993 indicate complaints of sleep difficulty, and an assessment at that time included major depression. Mental hygiene records of December 1993 indicate that the veteran feels "more depressed," with guilt and crying spells. Assessment was major depression, and the veteran's medication was increased. As such, a current VA psychiatric examination of the veteran would be helpful in the determination of his claim. The Board is mindful that this case has already been previously remanded for additional development. However, recent decisional precedent of the Court, issued since the time of our April 1993 Remand determination, has determined that the Board may not violate the statutory duty to assist, mandated by 38 U.S.C.A. § 5107 (West 1991). Talbert v. Brown, No. 92-1275, slip op. at 8 (U.S. Vet. App. Dec. 1, 1994). In that decision, the Court underlines the importance of thorough and contemporaneous medical examinations, so that the evaluation of the claimed disability will be a fully informed one. Id. at 8. (Emphasis in original). To ensure that VA has met its duty to assist the appellant in developing the facts pertinent to the claim, the case is REMANDED to the RO for the following development: 1. The veteran should be afforded a VA social and industrial survey to assess the veteran's employment history and day-to-day functioning. A written copy of the report should be inserted into the claims folder. 2. Upon completion of the above requested development, the veteran should be scheduled for a VA psychiatric examination by an examiner who has not previously seen him. All indicated tests and studies should be performed, and the claims folder must be made available to the examiner for use in the study of the case. A definitive diagnosis should be entered, with a description of the severity of PTSD symptomatology and the degree of resulting social and industrial impairment. The examiner should make reference to the findings contained in the social and industrial survey, and a GAF score should be obtained and noted in the examination report. The examiner is to set forth all findings and conclusions, along with rationale and support therefor, in a clear, comprehensive and legible manner, with reference to supporting evidence. 3. Thereafter, the RO should readjudicate the issue of entitlement to an increased rating for post-traumatic stress disorder, currently evaluated as 10 percent disabling. If the decision, in whole or in part, remains adverse to the veteran, he and his representative should be provided a supplemental statement of the case, and the veteran and his representative should be afforded an opportunity to respond thereto. Evidence recently submitted and not previously considered should be reviewed. Thereafter, if indicated, the case should be returned to the Board for appellate consideration. No action is required on the veteran's part until further notice. U. R. POWELL 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.