BVA9500143 DOCKET NO. 93-09 742 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to an increased (compensable) evaluation for hepatitis. 2. Entitlement to an increased evaluation for tinnitus, currently rated as 10 percent disabling. 3. Entitlement to an increased (compensable) evaluation for depressive neurosis. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant and Miss Vicki Wright ATTORNEY FOR THE BOARD Thomas C. Taylor, Associate Counsel INTRODUCTION Appellant served on active duty from September 1971 to February 1974. This matter came before the Board of Veterans' Appeals (Board) on appeal of a June 1991 rating determination by the Department of Veterans Affairs (VA) Regional Office (RO) which denied entitlement to compensable evaluations for hearing loss and depressive neurosis. During the development of the case, the issues appealed changed to entitlement to a rating in excess of 10 percent for tinnitus, entitlement to a compensable evaluation for hepatitis, and entitlement to an compensable evaluation for depressive neurosis. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that symptoms of his tinnitus have increased in severity and warrant a greater rating. He contends that the ringing in his ears is constant and detracts from his concentration, drives him to drink until he "blacks out," and causes him to be forgetful. The veteran also contends that his anger, violent moods, abusive behavior, alcohol abuse, polysubstance abuse, and inability to maintain friendships or a job are symptoms of depressive neurosis and warrant a compensable rating. The veteran does not contend that he has any symptoms of hepatitis. 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 veteran has not presented a well-grounded claim for an increased rating for hepatitis, that entitlement to a rating in excess of 10 percent for tinnitus is not warranted, and that entitlement to a compensable evaluation for depressive neurosis is not warranted. FINDINGS OF FACT 1. The veteran has not asserted, or submitted any evidence, that any symptoms of chronic hepatitis are currently present. 2. The veteran has asserted that symptoms of depressive neurosis have increased in severity. 3. Psychological and psychiatric examiners attribute all of the veteran's current psychiatric symptoms to antisocial personality disorder, alcohol dependence, polysubstance abuse, and/or narcissistic traits. 4. The veteran's tinnitus is evaluated as 10 percent disabling, the maximum rating provided by any applicable Diagnostic Code of the rating schedule. CONCLUSIONS OF LAW 1. The veteran has not submitted a well-grounded claim for entitlement to an increased rating for chronic hepatitis. 38 U.S.C.A. § 5107(a) (West 1991). 2. A rating in excess of 10 percent for tinnitus is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.102, 3.321(b), 4.1, 4.2, 4.3, 4.7, 4.87, Code 6260 (1993). 3. A compensable evaluation for depressive neurosis is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.102, 3.321(b), 4.1, 4.2, 4.3, 4.7, 4.20, 4.27, 4.125, 4.127, 4.132, Code 9405 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION The threshold question in all cases is whether the claim is well- grounded under 38 U.S.C.A. § 5107(a). A well-grounded claim is a plausible claim, one which is meritorious on its own or capable of substantiation. Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). There must be more than a mere allegation; the claim must be accompanied by evidence that justifies a belief by a fair and impartial individual that the claim is plausible. Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992). Where the issue is factual in nature, e.g., whether an incident occurred during service or whether a clinical symptom is present, competent lay testimony may constitute sufficient evidence to establish a well- grounded claim. Cartright v. Derwinski, 2 Vet.App 24 (1991); Layno v. Brown, 6 Vet.App. 465 (1994). However, where the determinative issue involves medical causation or a medical diag- nosis, competent medical evidence to the effect that the claim is "plausible" or "possible" is required. Grottveit v. Brown, 5 Vet.App. 91 (1993). Furthermore, such medical evidence must be more than speculative. Tirpak, at 611 (term "may or may not" renders opinion speculative). Any adjudication on the merits of a claim which is not well-grounded would constitute error. Grivois v. Brown, 6 Vet.App. 136 (1994). A claim for an increase rating is regarded as a new claim and is subject to the well-groundedness requirement. Proscelle v. Derwinski, 2 Vet.App. 629, 631 (1992). In order to present a well-grounded claim for an increased rating of a service connected disability, a veteran need only submit his or her competent testimony that symptoms, reasonably construed as related to the service-connected disability, have increased in severity since the last evaluation. Proscelle, 2 Vet.App. at 631, 632; See also Jones v. Brown, No. 93-315 (U.S. Vet.App. Nov. 14, 1994). Chronic Hepatitis. The veteran was separated from service with severance pay for chronic persistent hepatitis, following acute viral hepatitis in June 1973. VA examination in April 1974 resulted in the following diagnosis: History of hepatitis without sequelae or complications. By a decision dated in July 1974, the RO granted service connection for chronic hepatitis and assigned a 10 percent disability rating pursuant to Diagnostic Code 7345. Healed, nonsymptomatic infectious hepatitis warrants a noncompensable evaluation. A 10 percent evaluation requires demonstrable liver damage with mild gastrointestinal disturbance. 38 C.F.R. Part 4, Code 7345. VA examinations in May 1975 and again in June 1976 revealed no pertinent abnormal findings. By a decision dated in August 1976, the RO reduced the rating to the current noncompensable evaluation. The veteran has not submitted any testimony or other evidence that his chronic hepatitis has increased in severity since that time. On VA examination in July 1992 he claimed that he had no liver problem and physical examination was negative; the following diagnosis was given: Hepatitis, history of, normal examination, asymptomatic (Elevated SGPT). (Emphasis added.) At a hearing held in September 1992, when specifically asked if he had any symptoms of chronic hepatitis, the veteran denied any symptoms. The veteran has not submitted a well-grounded claim for a compensable rating for chronic hepatitis. Tinnitus. By a decision dated in January 1988, the RO granted service connection for tinnitus and assigned the current 10 percent disability rating. The veteran has testified that his tinnitus has increased in severity since that rating. The Board finds that this claim is well grounded within the meaning of 38 U.S.C.A. § 5107. That is, he has presented subjective complaints which, given the nature of the disability involved, are sufficient to make his claim plausible. Once a claimant has submitted a well grounded claim which is "capable of substantiation," Section 5107(a) of 38 U.S.C.A. requires VA to "assist such a claimant in developing the facts pertinent to the claim." Sagainza v. Derwinski, 1 Vet.App, 575, 580 (1991). The Board is satisfied that all relevant facts have been properly developed. Moreover, there is no indication that there are other records available which would aid a decision. The Board concludes that the record is complete and there is no further duty to assist the appellant in developing his claim under 38 U.S.C.A. § 5107. In determining an appropriate evaluation for a disability, VA applies a schedule of percentage ratings of reduced earning capacity in civil occupations due to specific injuries or combination of injuries. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. A proper rating evaluation of a veteran's disability contemplates the history of the disability, 38 C.F.R. § 4.1, and must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. When evaluating a disability, any reasonable doubt regarding the degree of disability is resolved in favor of the claimant. 38 C.F.R. § 4.3. If there is a question as to which of two evaluations should apply, the higher rating is assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet.App. 55 (1994). As to the veteran's tinnitus, the maximum schedular rating is 10 percent. 38 C.F.R. Part 4, § 4.87, Code 6260. The veteran is already receiving the maximum compensation available under the rating schedule. The record does not support a finding that the veteran's tinnitus presents such an unusual or exceptional disability picture as to warrant an extra-schedular rating. 38 C.F.R. § 3.321(b). Consequently, a rating in excess of 10 percent is denied. Depressive neurosis. By the decision dated in July 1974, the RO granted service connection for depressive neurosis and assigned a noncompensable disability rating. The veteran has testified that this disability has increased in severity. The Board finds, that this claim is well grounded and that all relevant facts have been properly developed. 38 U.S.C.A. § 5107. A VA psychiatric report, dated in April 1974 and upon which the RO originally based its grant of service connection, reflects a diagnosis of depressive neurosis. The prognosis was "Good, especially if his physical condition improves." The veteran is rated under Diagnostic Code 9405, the code for dysthymic disorder, adjustment disorder with depressed mood, and major depression without melancholia. 38 C.F.R. Part 4, § 4.132, Code 9405. In the report of a more recent VA psychiatric examination , dated in April 1991, the examiner stated "I do not find at this time any evidence of psychiatric disability in this patient." A psychological evaluation completed by R. Klion, Ph.D., in May 1991, contains the following clinical impressions and summary: The patient is a 38 year old male who complains of having an easily aroused temper and of ringing in his ears as well as hearing his mother's voice. These latter two symptoms do not appear related to a psychiatric disorder. The patient certainly is not psychotic and the reports of hearing his mother's voice seem to be illusions rather than hallucinations. The patient reports an extensive history of chemical dependency, interpersonal conflict, and involvement with the criminal justice system. In interview as well as by history, he appears to be [an] easily irritated individual who has little tolerance for those who question him or disagree with him. When conflict does arise, it quickly escalates to the extent that the patient threatens violence. As such, a diagnosis of Antisocial Personality Disorder (301.70) seems most indicated. He also admits to an extensive history of drug and alcohol use which has been under control for a year now. Thus, Polysubstance Dependence, In Remission (304.90) also should be noted. (Emphasis in original.) An additional VA psychiatric examination report, dated in June 1992, reflects the following: MENTAL STATUS EXAMINATION: This was a tall white male who walked into the interview holding his back and complaining about his back pain. Curiously, he left the interview with noticeably less problems, though still with a slight stoop. His history centered around his multiple occupational or legal problems due to his alcoholism. He still has a tendency to shift responsibility for his drinking problems onto other problems, which he claims not to be able to do anything about, such as his hearing difficulties, his tinnitus, and his back pain. He seemed to also enjoy portraying himself as [an] "impossible case," and smiled in describing his failure to improve with multiple AA efforts. He's been involved in this for several years. He does not evidence a genuine motivation to want to confront his alcoholism, rather he seems to get some benefit from enjoying the role of a victim. He does not evidence depression at this time and exhibits a full range of affect in our interview. Thought processes were logical and sequential, despite [his] claim that at home he is unable to do anything or concentrate because the tinnitus is so disruptive. He was certainly easily able to process and attend to my questions and gave logical and sequential answers to my attempts to draw a historical account. He is felt to have poor insight and judgment, but to be of average intelligence. DIAGNOSTIC IMPRESSION: Axis I: Alcohol dependence. Mixed substance abuse by history. Axis II: Narcissistic traits DEGREE OF PSYCHIATRIC IMPAIRMENT: Degree of impairment would be purely due to his interpersonal style and substance abuse problems, but probably until these are confronted he is unable to hold employment, and I would judge these to be mild to moderate in impairment. There is no evidence of PTSD or depression at this time. He certainly is competent by VA standards. The field of mental disorders represents the greatest possible variety of etiology, chronicity and disabling effects, and requires differential consideration in these respects. 38 C.F.R. § 4.125. Personality disorder are not considered as disabilities under the terms of the rating schedule. 38 C.F.R. Part 4, § 4.127. The diagnosis of depressive neurosis is necessarily a medical opinion. The mental health professionals who have recently examined the veteran have clearly indicated that the veteran currently does not manifest signs and symptoms warranting a diag- nosis of depressive neurosis. Although the veteran may testify to many "psychiatric" symptoms, he is not competent to diagnose a psychiatric disability. Thus, as is the case here, if competent medical authority has determined that he does not currently have depressive neurosis, neither he, another lay witness, nor his representative can competently ascribe symptoms to depressive neurosis. Current competent medical health professionals have failed to identify the disability of depressive neurosis. Consequently, as he does not currently manifest symptoms sufficient to warrant a diagnosis of depressive neurosis, a compensable rating is not warranted. Additionally, the Board notes that there is no competent evidence to suggest that the veteran's service-connected depressive neurosis is in any way related to the substance abuse disorder and the personality disorder identified on recent examinations. In reaching the above determination, the Board has considered Parts 3 and 4 of 38 C.F.R., but does not find that any potentially applicable provision would warrant a compensable evaluation given the facts in this case. Specifically, there are no exceptional or unusual features present what would warrant an extraschedular evaluation. 38 C.F.R. §§ 3.321(b), 4.7. To the extent that the RO did not expressly address any of these provisions, the Board finds such omission harmless, as there is no basis in the factual record to support an increased rating under any other provisions, and the appellant has had ample opportunity to advance detailed testimony and argument. Bernard v. Brown, 4 Vet.App. 384 (1993). The weight of the most credible and probative evidence being clearly against the claim, the reasonable doubt doctrine does not apply. 38 U.S.C.A. 5107(b); 38 C.F.R. § 3.102. ORDER The claim for entitlement to a compensable evaluation for hepatitis is dismissed. A rating in excess of 10 percent for tinnitus is denied. A compensable evaluation for depressive neurosis is denied. GARY L. GICK 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 determi- nation. 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.