Citation Nr: 0005837 Decision Date: 03/03/00 Archive Date: 03/14/00 DOCKET NO. 98-13 477 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include post traumatic stress disorder (PTSD). 2. Entitlement to a rating greater than 40 percent for a lumbar spine disorder. 3. Entitlement to a rating greater than 40 percent for a right ulnar nerve neuropathy with atrophy of the interossei muscles, status post fracture. 4. Entitlement to a total disability rating for compensation purposes due to individual unemployability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD G. Strommen, Associate Counsel INTRODUCTION The veteran served on active duty from August 1969 to June 1971. This case comes before the Board of Veterans' Appeals (Board) from a rating decision rendered in May 1998, in which the New Orleans, Louisiana, Regional Office (RO) of the Department of Veterans Affairs (VA) denied entitlement to service connection for an acquired psychiatric disorder, entitlement to an increased rating for a lumbar spine disorder, right ulnar nerve neuropathy with atrophy of the interossei muscles, status post fracture, and entitlement to a total disability rating for compensation purposes due to individual unemployability. The veteran subsequently perfected an appeal of that decision. A video conference hearing on this claim was held on September 29, 1999, before Jeff Martin, who is a member of the Board and was designated by the chairman to conduct that hearing, pursuant to 38 U.S.C.A. § 7102(b) (West 1991). The veteran's claim of entitlement to an increased rating for right ulnar nerve neuropathy with atrophy of the interossei muscles, status post fracture, will be addressed in the remand portion of this decision. FINDINGS OF FACT 1. All information necessary for an equitable disposition of the veteran's claims has been developed. 2. There is competent medical evidence relating the veteran's acquired psychiatric disorder, identified as anxiety disorder, to his period of active service. 3. The veteran's lumbar spine disorder is manifested by radiculopathy to his lower extremities, motor weakness of both lower extremities, severe pain on motion, no forward flexion, backward extension is 10 degrees, no left or right lateral flexion, no left or right rotation, decreased sensation in right leg, and reflexes not intact at L3-4 and L5-S1. 4. The veteran's service-connected disabilities preclude him from securing and maintaining gainful employment. CONCLUSIONS OF LAW 1. An acquired psychiatric disorder was incurred during active service. 38 U.S.C.A. § 1101, 1110, 5107 (West 1991); 38 C.F.R. §§ 3.102, 3.303 (1999). 2. The criteria for a 60 percent evaluation for a lumbar spine disorder are met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.71a, Diagnostic Code 5293 (1999). 3. The criteria for a total evaluation for disability purposes due to individual unemployability are met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 1. Entitlement to service connection for an acquired psychiatric disorder, identified as anxiety disorder. Initially, the Board finds that the veteran's claim is well grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991); that is, he has presented a claim that is plausible. He has not alleged that any records of probative value that may be obtained, and which have not already been associated with his claims folder, are available. The Board accordingly finds that all relevant evidence has been properly developed, and the duty to assist in this case, has been satisfied. 38 U.S.C.A. § 5107(a). Entitlement to service connection for a particular disability requires evidence of the existence of a current disability and evidence that the disability resulted from a disease or injury incurred in or aggravated during service. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303(a) (1999). Service connection may also 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) (1999). In determining whether service connection is warranted for a disability, the VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In making this determination, the veteran is entitled to the benefit of all reasonable doubt arising from the evidence. 38 C.F.R. § 3.102 (1999). In the present case, the veteran was normal from a psychological standpoint at entry into service. During service the veteran was treated for anxiety in March 1970, but was discharged in 1971 with a finding that he was normal psychologically. The veteran specifically asserts that his anxiety is related to an incident in service wherein he was sleeping and a mortar landed nearby and the resultant impact threw him across the room into the bunk of another soldier. He injured his back at this time and is currently service- connected for the back disorder. Post-service treatment records show that the veteran has been treated for anxiety disorder since at least 1988, and the veteran maintains that his anxiety has been constant since discharge. A review of the record also shows that in September 1992, the veteran's private physician, a Dr. L., submitted a statement asserting that the veteran's anxiety is related to his service in Vietnam. There is no evidence of record contradicting this statement or suggesting a different onset or etiology for the veteran's psychiatric impairment. In light of the above evidence, the Board finds that the evidence is in equipoise as to whether there is a reasonable basis for concluding that the veteran's current psychiatric disorder is related to his period of active service. He was treated for anxiety in service, his first documented post- service treatment is in 1988, and a medical opinion relates his anxiety to his period of active service. It is felt that to further delay reaching a final decision in this case in order to try to obtain another medical opinion regarding this matter would not be in the best interests of the veteran. Therefore, resolving doubt in the veteran's favor, the Board finds that the veteran's current psychiatric disorder, identified as anxiety disorder, is related to his period of active service, and that service connection is warranted therefor. 38 U.S.C.A. §§ 1110, 5107(b); 38 C.F.R. § 3.102 (1999). Accordingly, the veteran's claim of entitlement to service connection for an acquired psychiatric disorder, identified as anxiety disorder, is granted. 2. Entitlement to increased evaluations for a lumbar spine disorder. The veteran's contentions regarding the increase in severity of his lumbar spine disorder constitute a plausible or well- grounded claim. Proscelle v. Derwinski, 2 Vet. App. 629 (1992). The Board further finds that the VA has met its statutory obligation to assist him in the development of his claim. 38 U.S.C.A. § 5107(a) (West 1991). The veteran's claim of entitlement to service connection for a lumbar spine disorder was originally granted in a November 1994 RO decision. The RO assigned a 10 percent rating effective September 24, 1992, the date of the veteran's claim. In May 1996 the RO granted the veteran an increase in the evaluation of his lumbar spine disorder to 20 percent effective back to the veteran's originally filing date of September 24, 1992. In July 1996 the RO again increased the evaluation of the veteran's lumbar spine disorder, this time to 40 percent, effective November 22, 1995. The degree of impairment resulting from a disability is a factual determination and the Board's primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994); see also Solomon v. Brown, 6 Vet. App. 396, 402 (1994). With regard to the veteran's request for an increased schedular evaluation, the Board will only consider the factors as enumerated in the applicable rating criteria. See Massey v. Brown, 7 Vet. App. 204, 208 (1994); Penorio v. Derwinski, 2 Vet. App. 625, 628 (1992). Finally, we note that governing VA regulations, set forth at 38 C.F.R. § 4.40 (1999) provide for consideration of a functional impairment when evaluating the severity of a musculoskeletal disability. The United States Court of Appeals for Veterans Claims (Court) has held that a higher rating can be based on "greater limitation of motion due to pain on use." DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). However, any such functional loss must be "supported by adequate pathology and evidenced by the visible behavior of the claimant." See 38 C.F.R. § 4.40 (1999). Pursuant to VA's Schedule for Rating Disabilities, 38 C.F.R. § 4.71a (1999) (Schedule), the RO ascertained the severity of the veteran's lumbar spine disorder by application of the criteria set forth in Diagnostic Code 5294 governing lumbosacral strain. Under this provision, the veteran's current 40 percent rating is the highest evaluation available. The only provisions relating to the lumbar spine which provide for a higher evaluation are Diagnostic Codes 5285, 5286, and 5293. Diagnostic Code 5285, which covers evaluation of vertebral fractures, is not applicable since there is no medical evidence that the veteran has ever fractured his vertebral bodies. Additionally, application of Diagnostic Code 5286 is not warranted because this provision governs the evaluation of ankylosis of the spine, and the medical evidence does not support a finding that the veteran's lumbar spine is ankylosed. Thus, the only Diagnostic Code permitting an increase that is possibly applicable to the veteran is Diagnostic Code 5293 governing intervertebral disc syndrome. Under this provision, a 60 percent rating is appropriate for a pronounced impairment with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to the site of the diseased disc, little intermittent relief. The veteran's most recent VA examination report, from January 1998, diagnosed low back pain with lumbar radiculopathy, the examiner did not find true sciatica but noted back pain and motor weakness in both lower extremities. However, this examination report focuses almost exclusively on the veteran's right hand disability and does not provide much in the way of explanation or observation about the veteran's low back disability. In June 1996 the veteran was provided what the Board finds is a more thorough examination of the veteran's back. This examination report notes that the veteran complained of right leg radiculopathy that caused his legs to get numb, tingly and have pain. He had no forward flexion, backward extension of 10 degrees, with 35 degrees being normal, no left or right lateral flexion and no left or right rotation, with pain on all motion. He had decreased motor and sensation in the right leg, and reflexes "not intact" at L3-4 or L5-S1, and "toes down Babinski." Deformity was noted in the way the veteran walked. He was diagnosed with degenerative osteoarthritis, lumbar spine, right radiculopathy. The examiner also noted that the veteran's pain increased with exertion. As noted, the Board finds that the June 1996 examination report is more thorough and indicative of the veteran's back disorder. Given this evidence, the Board finds that the veteran has demonstrated a pronounced impairment of his lumbar spine. His range of motion is extremely reduced, with pain, he has indications of neurological deficit related to his lumbar spine, and his symptoms are persistent. Moreover, there is objective evidence of pain on usage resulting in functional impairment. Accordingly, the Board finds that the medical evidence of the veteran's low back disorder more nearly approximate the criteria for a 60 percent evaluation under Diagnostic Code 5293, and his claim of entitlement to an increased rating is granted. Preliminary review of the record does not reveal that the RO expressly considered referral of the case to the Chief Benefits Director or the Director, Compensation and Pension Service for the assignment of an extraschedular rating under 38 C.F.R. § 3.321(b)(1) (1999). This regulation provides that to accord justice in an exceptional case where the schedular standards are found to be inadequate, the field station is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. The governing criteria for such an award is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. The Court has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance, however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). The Court has further held that the Board must address referral under 38 C.F.R. § 3.321(b)(1) only where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Having reviewed the record with these mandates in mind, the Board finds no basis for further action on this question. VAOPGCPREC. 6-96 (1996). 3. Entitlement to a total disability rating for compensation purposes due to individual unemployability. With regard to the veteran's claim for a total disability rating due to individual unemployability, the veteran's service-connected disabilities consists of his right ulnar nerve neuropathy with atrophy of the interossei muscles, status post fracture, assigned a 40 percent rating by the RO, his lumbar spine disorder, which the Board increased to 60 percent, and his newly service-connected anxiety disorder, which has not been evaluated yet. To meet the requirements for total disability rating due to individual unemployability, the veteran's schedular rating must be less than total, and he must be found to be unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16 (1999). A review of the record, reveals that the veteran meets the statutory requirement in that his combined service-connected evaluations are greater than 70 percent. As for his inability to secure and follow a substantially gainful occupation by reason of his service-connected disabilities, in his claim for a total rating based on individual unemployability filed in January 1998, the veteran stated that he has been unable to find adequate employment since discharge because no one would hire him due to either his back or his hand disability, and that his post-service work experience has consisted solely of work as a self- employed trader of antiques and jewelry to 1994. He is a high school graduate. As noted in the medical evidence discussed previously, the veteran's back is extremely painful on motion and has limited range of motion. He also has neurological impairment from his back disorder. January 1998 VA Medical evidence of record pertaining to his right hand disability indicates that the veteran is right handed, and that his right hand has pain, weakness and numbness, and that he is unable to make a hand grip or extend the wrist. He was also unable to move the fingers on his right hand. Additionally, an October 1996 statement from a VA vocational rehabilitation counselor indicates that the veteran was not a feasible candidate for retraining, and that he cannot engage in any type of labor intensive work. The counselor noted that his right upper extremity was severely limiting of employment opportunities. Given the limitation on the veteran's functional ability due to his service-connected disabilities, and the October 1996 conclusion by a VA vocational counselor that his disabilities rendered him unable to work. The Board finds that the veteran is unemployable due to his service-connected low back and right hand disabilities, and his claim of entitlement to a total disability rating due to individual unemployability is granted. ORDER Entitlement to service connection for an acquired psychiatric disorder, identified as anxiety disorder, is granted. Entitlement to a 60 percent evaluation for a lumbar spine disorder is granted, subject to the laws and regulations governing the disbursement of monetary benefits. A total disability rating based on individual unemployability due to service-connected disability is granted. REMAND After a review of the record, it is the opinion of the Board that additional development of the evidence should be accomplished prior to further consideration of the veteran's claim of entitlement to a rating greater than 40 percent for his service-connected right ulnar nerve neuropathy with atrophy of the interossei muscles, status post fracture. The most recent examination of this disability was performed in January 1998, however, the examiner did not adequately address degree of disability manifested by the veteran's right hand neuropathy. The veteran testified at his video conference hearing that he has loss of use of his right hand due to his service-connected disability, and that he has "griffin claw" deformity. The January 1998 examination does not address these aspects of the veteran's impairment. Accordingly, the Board finds that the claims should be remanded for another examination. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). While the Board regrets the delay involved in remanding this case, under the circumstances discussed above, the case is simply not ready for appellate review. To ensure due process, and to ensure that the VA has met its duty to assist the veteran in developing the facts pertinent to his appeal, the case is REMANDED to the RO for the following development: 1. The RO should notify the veteran that if he has any additional lay or medical evidence he wishes to submit to support his claim he may do so, particularly evidence he may have obtained which may not currently be in the claims file. 2. Upon receipt of any and all such records, the RO should associate them with the claims file and accord the veteran an examination of his right hand, in order to ascertain the severity of his disorder. The RO should also inform the veteran of the consequences of failing to report for the scheduled examination. The veteran's claims folder should be provided to the examiner prior to his or her evaluation of the veteran. After reviewing the claims folder and examining the veteran, the examiner should, on the examination report, indicate an opinion as to whether the veteran's impairment of the right hand amounts to loss of use of the hand, whether he has griffin claw deformity or the equivalent, the range of motion of the right wrist, fingers and thumb, if any, any pain on motion or use, any atrophy or flexion contraction, and any loss of extension of the fingers. Any necessary tests or studies should be performed and explained in the examination report. 3. After the development requested above has been completed to the extent possible, the RO should again review the record and consider all the additional evidence. If any benefit sought, for which an appeal has been perfected, remains denied, the veteran and his representative should be furnished a supplemental statement of the case, and given the opportunity to respond thereto with additional argument and/or evidence. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The veteran need take no action until notified. This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. JEFF MARTIN Member, Board of Veterans' Appeals