Citation Nr: 0000589 Decision Date: 01/07/00 Archive Date: 01/11/00 DOCKET NO. 95-07 310 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for muscle strain of the left trapezius. 2. Entitlement to an increased rating for major depression, currently evaluated as 30 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Michael A. Holincheck, Associate Counsel INTRODUCTION The veteran served on active duty from February 1970 to October 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. The veteran's case was remanded for additional development in August 1996. It is again before the Board for appellate review. The Board notes that several events occurred while the case was in a remand status. First, the veteran relocated from Kansas to Missouri and his claims folder was transferred to the RO in St. Louis, Missouri. Second, the veteran was granted service connection for neuropathy of the left wrist, an issue previously remanded by the Board, and assigned a 10 percent rating by way of a rating decision dated in November 1998. As the veteran has not submitted a notice of disagreement with the rating decision, the Board does not have jurisdiction over the issue. Grantham v. Brown, 114 F.3rd 1156, 1159 (1997). Further, the veteran's disability rating for service-connected major depression was increased to 30 percent, effective July 1993. Finally, the Board notes that while the veteran's case was pending appellate review, he submitted additional evidence directly to the Board. The veteran also submitted a waiver of jurisdiction for review by the agency of original jurisdiction. Accordingly, the evidence will be considered in the Board's adjudication of the case. 38 C.F.R. § 1304(c) (1999). FINDINGS OF FACT 1. Service connection for muscle strain of the left trapezius was denied by an unappealed final RO decision in February 1973. The February 1973 rating decision is the last final denial on any basis. 2. Evidence received since the February 1973 RO decision, when considered alone or in conjunction with all of the evidence of record, is not so significant that it must be considered in order to fairly decide the merits of the claim. 3. The veteran's major depression is not manifested by more than definite symptomatology. 4. The veteran's major depression is not manifested by such symptoms as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impaired judgment or impaired abstract thinking. CONCLUSIONS OF LAW 1. Evidence received since the February 1973 final RO decision is not new and material; the veteran's claim may not be reopened. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (1999). 2. The criteria for a rating in excess of 30 percent for major depression have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 1991); 38 C.F.R. § 4.130, Diagnostic Code 9434 (1999); 38 C.F.R. § 4.132, Diagnostic Codes 9207, 9434 (1996). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. New and Material Evidence The veteran served on active duty from February 1970 to October 1972, when he was discharged by reason of physical disability relating to his major depression. Service medical records (SMRs) reflect that the veteran underwent electroshock therapy (EST) for his depression during June and July 1972. During one of his sessions, he strained his left upper trapezius muscle. A physical therapy (PT) consultation sheet, dated in July 1972, noted that the veteran was treated with hot packs and noted a marked decrease in discomfort following application of the hot packs. He has some limitation of motion of his head but no muscle spasm. A PT consultation, dated in August 1972, noted that the veteran's left upper trapezius muscle as "alright." There were no further treatment entries for that condition contained in the veteran's SMRs. The veteran was afforded a physical examination as part of medical board processing in August 1972. While the examination was dated in June 1972, it is clear that it was performed in August 1972 contemporaneous with the medical board. The examination noted that the veteran had muscle strain of the left upper trapezius as secondary to EST. The condition was noted as improved. Physical Evaluation Board findings, dated in August 1972, found the veteran to be disabled due to his depression and hyperkeratosis of the right foot. The veteran's left trapezius was not deemed to be a disability. Prior to the veteran's discharge from service, he was transferred to the VA Hospital in Kansas City, Missouri, for a period of hospitalization in September 1972. The discharge summary for that period of hospitalization made no reference to any type of problem related to the left trapezius muscle. The veteran originally filed a claim in October 1972, seeking service connection for, inter alia, muscle strain of the left trapezius. He was afforded a VA orthopedic examination in January 1973. At the examination the veteran related that he had never had an injury to either shoulder in service and that he was totally asymptomatic. The examiner's objective findings were that there was a full range of motion of the shoulder. There was no periarticular thickening, crepitus, or effusion. Further, there was no paramuscular tenderness or spasm present. The examiner's diagnosis was that there was no orthopedic disease or injury or residuals of injury of the shoulder found during the examination. The veteran's claim was denied in February 1973. He was notified of this action that same month. The veteran failed to perfect an appeal of that decision. Therefore, the February 1973 decision is final. 38 U.S.C.A. § 7105. Accordingly, the veteran's claim may only be reopened and considered on the merits if new and material evidence has been submitted. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). New and material evidence means evidence not previously submitted to agency decisionmakers which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in connection with evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156 (a). New and material evidence must be presented or secured since the time that the claim was finally disallowed on any basis. Evidence presented since the last final disallowance need not be probative of all elements required to award the claim, but need be probative only as to each element that was a specified basis for the last disallowance. The United States Court of Appeals for Veterans Claims (Court) has held that VA must first determine whether the veteran has presented new and material evidence under 38 C.F.R. § 3.156(a) in order to have a finally denied claim reopened under 38 U.S.C.A. § 5108. Elkins v. West, 12 Vet. App. 209, 219 (1999). If new and material evidence has been presented, immediately upon reopening the claim VA must determine whether, based upon all the evidence of record in support of the claim is well grounded pursuant to 38 U.S.C.A. § 5107(a). If the claim is well grounded, VA may then proceed to evaluate the merits of the claim but only after ensuring that his duty to assist under 38 U.S.C.A. § 5107(b) has been filled. Id. Evidence of record at the time of the RO's February 1973 denial consisted of: the veteran's SMRs; VA hospital summary dated in September 1972; and VA examination reports dated in January 1973. Based on this evidence, the RO denied the veteran's claim on the basis that there was no indication of a current disability. In July 1993, the veteran filed to reopen his claim for service connection for muscle strain of the left trapezius. The Board notes that since the RO's February 1973 decision, the evidence added to the file includes: (1) duplicate copies of SMRs furnished by the veteran (2) reply from Munson Army Hospital, Ft. Leavenworth, Kansas, received in November 1993; (3) VA treatment records dated from January 1993 to January 1994; (4) private treatment records from Thomas A. Janes, D. C., for the period from June 1987 to February 1994; (5) reply from DiRenna Clinic, received in March 1994; (6) VA examination reports dated in November 1994 and February 1998; (7) statements from the veteran; (8) VA outpatient treatment record dated in June 1999; and, (9) incident report and accompanying statements from the veteran's employer, dated in May and June 1999. Significantly, however, after carefully considering the evidence submitted since the last final RO decision, in light of evidence previously available, the Board is compelled to find that the veteran has not submitted evidence which is new and material. With the exception of the duplicate SMR entries, all of the evidence received after the February 1973 RO decision is new to the record. The next step is to determine if any of the material is so significant that it must be considered in order to fairly decide the claim. The response from Munson Army Hospital is a negative reply to a request for records. The statement from the DiRenna Clinic also indicates that no records of treatment were available for the veteran as it appeared he was the patient of a physician that had been retired for ten years and the clinic only retained records for five years. The records from Dr. Janes did not reflect any treatment for the veteran's left trapezius muscle. Several conditions were noted but none pertinent to the issue on appeal. The VA examination reports from 1994 and 1998 contained no reference to the veteran's left trapezius muscle. Finally, the VA outpatient treatment record, dated in June 1999, and the incident report materials from the veteran's employer contain no evidence pertinent to the issue. In light of the foregoing discussion, the Board finds that this evidence is not material to the veteran's claim as it neither provides any evidence of past treatment for the claimed disability or provides a current diagnosis of a disability that is linked to service. The VA treatment records do reflect treatment for complaints of left shoulder pain in July 1993. The veteran's past history of a strained left trapezius was noted. However, the veteran's current complaint of pain was noted to consist of mild discomfort to palpation, diffusely in the posterior area of the left trapezius muscle, nonradiating. The pain was not related to his previous strain in service by the treating physician. Subsequent VA treatment records made no reference to any type of left shoulder complaints or problems. Accordingly, these records do not present evidence that is material to resolving the issue on appeal. Finally, the veteran has opined that his left shoulder never stopped troubling him since service. He also stated that he believed that any body part that is injured is never restored to full capacity. However, as a lay person the veteran is not competent to proffer the necessary medical evidence of current disability or nexus evidence showing a link between any current claimed disorder and service. Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). Accordingly, the Board finds that the veteran's statements, by themselves, or in conjunction with the other evidence of record, are not so significant that they must be considered in order to fairly decide the merits of the claim. In light of the foregoing, the benefit sought on appeal is denied. In reaching this decision the Board views its discussion as sufficient to inform the veteran of the elements necessary to reopen his claim. See Graves v. Brown, 9 Vet. App. 172, 173 (1996). In this regard, the discussion above informs the veteran of the steps he needs to fulfill in order to reopen his claim, and an explanation why his current attempt to reopen the claim must fail. Finally, the Board notes that the veteran's representative has argued that the RO used an incorrect standard in adjudicating whether new and material evidence had been submitted. Specifically, the RO relied upon a standard which required that, "there must be a reasonable possibility that the new evidence, in the context of all the evidence, both new and old, would change the outcome." See Supplemental Statement of the Case (SSOC), dated in November 1998. This standard was struck down by the United States Court of Appeals for the Federal Circuit in Hodge v. West, 155 F.3d. 1356, 1359-64 (Fed. Cir. 1998). The Board finds that while the RO may have erred in articulating the old standard in issuing its SSOC, any error is cured by the foregoing analysis. I. Increased Rating for Major Depression As a preliminary matter, the Board finds that the veteran's claim for an increased evaluation for major depression is plausible and, thus, well grounded within the meaning of 38 U.S.C.A. § 5107(a); see Proscelle v. Derwinski, 2 Vet. App. 629 (1992) (a claim of entitlement to an increased evaluation for a service-connected disability is a well- grounded claim). The Board is also satisfied that all relevant facts have been properly developed and no further assistance is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a). The veteran was discharged from service in October 1972 due to his physical disability. His diagnosis at the time of his discharge, as per his medical board, was psychotic depressive reaction. Upon filing his claim for benefits in October 1972, he was afforded a VA psychiatric examination where he was diagnosed with psychotic depression. He was granted service connection for psychotic depression in February 1973 and assigned a 10 percent rating. The veteran's rating remained at the 10 percent level until he filed his current claim for an increase and was subsequently granted a 30 percent rating in November 1998. VA treatment records for the period from January to August 1993 reflect several entries related to psychiatric treatment. The entries reflect that the veteran was concerned and depressed about gaining weight. He denied any suicidal or homicidal thoughts or plans. He was referred to the nutrition clinic for dietary advice. The veteran was hospitalized and treated for fatigue at the VA medical center (VAMC) in Ft. Leavenworth, during the period from October 4, 1993 to October 8, 1993. The veteran underwent an extensive work-up. However, the discharge summary states that it was felt that the most likely etiology of his fatigue was his depression, adjustment disorder, and probable sleep apnea with obesity a significant component. The veteran was afforded a VA mental disorders examination in November 1994. His past history of problems in the Army was noted. The examination report also notes that the veteran had been married from 1974 to 1992 but was now divorced. He had three children and saw them frequently on weekends. In regard to employment, the veteran had been essentially continually employed since his discharge from service, with several changes in jobs. His latest employment was with the Postal Service where he had worked since 1987. He worked as a mail handler at a bulk mail center. He lived alone in a house. He had little of a social life. He ate most of his meals out. He planned to get his driver's license back soon and then begin playing with a community band as he was a musician in the Army. The examiner reported that the veteran had a clean and casual appearance. He was oriented times three and cooperative. His affect was flattened. His judgment and insight were described as fair, as was his peer relationships. He was not anti-social but did not mix much. He did not see many people at work and had no social life. His temper was controlled most of the time. He denied nightmares. His memory and concentration were adequate. His energy was on the low side and he would get, and stay, depressed. He denied crying spells or suicidal ideation. He had moderate mood swings. The veteran denied auditory or visual hallucinations or delusion. He further denied paranoia but said that he felt somewhat paranoid and uneasy around people because he felt they were watching him. The examiner's diagnoses were chronic depression with anxiety and history of alcohol dependence. The examiner commented that the veteran's symptoms were moderate to moderately severe. He noted that the veteran functioned on a rather marginal basis, although he did work regularly. The veteran was afforded a VA mental disorders examination in February 1998. At the time of the examination, the veteran was remarried to his previous spouse. He was still employed by the Postal Service. He recently had opened a new station. He described an incident at the new station and related that he had become angry with his boss when he was criticized for how he handled the situation. The veteran related that he frequently would go into a rage with people. The veteran was again described as having a clean and casual appearance. He was oriented times three. His affect was somewhat surly and angry. His judgment, insight, and peer relationships were described as fair. He said that he tried to get along with people but sometimes had a short temper. He denied nightmares. His memory and concentration were adequate. He said that he was depressed but denied any suicidal or homicidal ideations. His moods were variable. He denied hallucinations or delusions. He again remarked about how he sometimes felt paranoid around people. The examiner's diagnosis was major depression. The examiner assigned a global assessment of functioning (GAF) score of 65. He stated that the veteran's prognosis was guarded. He described the veteran's symptomatology as moderate to moderately severe. He noted that the veteran had a regular job but would get aggravated and irritated at people. However, he worked six days a week and had done this for ten years. Finally, the veteran submitted additional evidence in November 1999. The evidence consisted of a VA outpatient clinical record entry along with several forms and statements related to an incident at the veteran's place of employment (post office). The incident occurred in April 1999. According to the veteran's statement, he felt stressed out during his period of work and "clocked" out to go home. He then sought out his supervisor to inform him of his actions. The statements provided document a confrontation between the veteran and his supervisor. The veteran was sent home. Letters from his supervisor reflect that the veteran's absence was charged as absent without leave (AWOL) from the date of the incident until May 24, 1999. From that point on the veteran's absence was noted as pending documentation. The veteran submitted two National Postal Mail Handlers Union/FMLA Certification of Health Care Provider statements on form NPMHU/FMLA Form 4. The first, dated in May 1999, was signed by a family practice physician, Steven K. Cherry, M. D., and indicated that the veteran had ongoing situational anxiety with exacerbation of major depression. Dr. Cherry indicated that he first saw the veteran in March 1998 and that the problem presented greater than five years. He also indicated the problems as a life duration. Dr. Cherry deferred to the veteran's psychiatrist in regard to a question of whether medical leave was required for his absence from work. Subsequent to receipt of the certification by Dr. Cherry, the veteran was informed in June 1999 of several specific requirements he must fulfill before he could return to work. Included in the requirements was a certification that he was fit for full duties without hazard to himself or others or indicating the duties which he would be capable of performing. The veteran then submitted an NPMHU/FMLA Form 4, that was prepared by his treating VA psychiatrist. The form indicated that the veteran had a serious health condition and that it was due to recurrent job stresses and easy anger and irritability and some paranoia and disturbance to other employees. The form also indicated that the veteran would require continued psychiatric management and psychological counseling. The VA psychiatrist indicated that no medical leave was required for the veteran's absence from work, and did not indicate that the veteran was unable to work. The form further reflected that the veteran might not be able to perform some of the requirements of his job but this required a medical evaluation. Finally, the VA psychiatrist noted that the veteran would need only intermittent or part-time care until he got emotionally and mentally stable. The veteran also submitted a VA outpatient treatment note, dated June 8, 1999. The note reflects that the veteran had been followed in the clinic since July 1993 with depression and severe anxiety, mostly on his job related problems with the post office. However, the veteran also had problems with weight gain, family problems, and associated medical problems. He required further psychiatric follow-up. The note adds that with his current continued emotional problems, as well as his on the job stresses, he might not be able to do some of the basic functions as listed for his job activities. He required a physical evaluation to help assess his capability for further work or limitations. It was the psychiatrist's opinion that the veteran's illness could be aggravated by his employment. Disability ratings are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (1999). Where entitlement to compensation has already been established and an increase in the assigned evaluation is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7. Vet. App. 55, 58 (1994). Although the recorded history of a particular disability should be reviewed in order to make an accurate assessment under the applicable criteria, the regulations do not give past medical reports precedence over current findings. Id. 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). In this case, the veteran is evaluated under Diagnostic Code 9434, for major depression. Effective November 7, 1996, VA revised the criteria for diagnosing and evaluating psychiatric disabilities. 61 Fed. Reg. 52,695 (1996). On and after that date, all diagnoses of mental disorders for VA purposes must conform to the Fourth Edition of the American Psychiatric Association's DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS. 61 Fed Reg. 52,700 (1996) (codified at 38 C.F.R. § 4.125 (1999)). The new criteria for evaluating service connected psychiatric disability were codified at newly designated 38 C.F.R. § 4.130 (1999). The new rating criteria are sufficiently different from those in effect prior to November 7, 1996. Nonetheless, in Karnas v. Derwinski, 1 Vet. App. 308, 312-13 (1991), the United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (hereinafter, "the Court"), held that where the law or regulation changes after a claim has been filed or reopened, but before the administrative or judicial appeal process has been concluded, the version more favorable to the appellant applies unless Congress provided otherwise or permitted the Secretary of Veterans Affairs to do otherwise and the Secretary did so. In light of Karnas, the Board will proceed to analyze the veteran's major depression claim under both sets of criteria to determine if one is more favorable to the veteran. The Board notes that the veteran's psychiatric disability was previously rated under Diagnostic Code 9207, psychotic depression, prior to the change in regulations. Under Diagnostic Code 9207, 38 C.F.R. § 4.132 (1996), a 30 percent rating is warranted when there is definite impairment in the ability to establish or maintain effective and wholesome relationships with people. The psychoneurotic symptoms result in such reduction in initiative, flexibility, efficiency and reliability levels as to produce definite industrial impairment. A 50 percent rating is for consideration where the veteran's ability to establish or maintain effective or favorable relationships with people is considerably impaired. By reason of psychoneurotic symptoms the reliability, flexibility and efficiency levels are so reduced as to result in considerable industrial impairment. In Hood v. Brown, 4 Vet. App. 301 (1993), the Court stated that the term "definite" in 38 C.F.R. § 4.132 was "qualitative" in character, whereas the other terms were "quantitative" in character, and invited the Board to "construe" the term "definite" in a manner that would quantify the degree of impairment. In a subsequent opinion, the General Counsel of the VA concluded that "definite" is to be construed as "distinct, unambiguous, and moderately large in degree." It represents a degree of social and industrial inadaptablity that is "more than moderate but less than rather large." VAOPGCPREC 9-93; 59 Fed.Reg. 4753 (1994). The Board is bound by this interpretation of the term "definite." 38 U.S.C.A. § 7104(c). Under the new criteria, Diagnostic Code 9434, 38 C.F.R. § 4.130 (1999), a 30 percent rating is warranted where there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is for consideration where there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g. retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. In assessing the evidence of record, it is important to note that the global assessment of functioning score is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health- illness." Carpenter v. Brown, 8 Vet. App. 240, 242 (1995). A GAF score of 61-70 is defined as "Some mild symptoms (e.g., depressed mood and mild insomnia) OR some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, has some meaningful interpersonal relationships. Ibid Here, the record shows that the veteran has exhibited symptoms of depression, at least since he submitted his claim for an increased rating in July 1993. The record also shows that the veteran has maintained employment since his discharge from service in 1972. He has maintained his latest employment with the Postal Service since 1987. The veteran was married for the first time from 1974 to 1992, and according to his 1994 examination, he saw his three children on the weekends frequently after the divorce. Further, as of his February 1998 examination, he was remarried to his former spouse. The veteran has said that he gets, and stays, depressed and that he sometimes has a short temper and goes into a rage against people. However, he has not demonstrated any memory problems, flattened affect subsequent to the 1994 examination, circumstantial speech, panic attacks of more than once a week, or a difficulty in understanding complex commands. His judgment and insight have been described as fair at both the 1994 and 1998 mental disorders examinations. The veteran stated that he did not have much of a social life; however, he worked six days a week. Moreover, while the VA examiner termed the veteran's incapacity as moderate to moderately severe, the GAF score of 65 is usually associated with milder symptomatology. This is especially so given the symptomatology that is described in the 1994 and 1998 examination reports. The Board notes the recently submitted evidence documents a conflict at work for the veteran. However, the veteran has not provided any evidence that he is not able to work or that he is no longer working because of his disability. The statements and forms document that the incident occurred. The veteran relates it to his stress. The two certification forms document that the veteran does have a psychiatric illness and that he will require continued treatment. This is already established and the veteran is in receipt of disability compensation for his illness. However, the form from the veteran's VA psychiatrist does not indicate that he is unable to work. Further, it reflects that any possible limitation to work is more related to a physical problem, rather than the veteran's psychiatric disability. The VA outpatient note does reflect that the veteran's job can aggravate his illness. However, the note also reflects that possible limitations on the job are related to physical reasons. In applying the evidence of record to the rating criteria, the Board finds that the veteran's current level of disability is adequately compensated at the 30 percent level under both the prior and amended regulations. The veteran's symptomatology certainly does not reflect a disability that is more than moderate based on the evidence of record. Nor does the veteran exhibit the aforementioned manifestations necessary to satisfy the criteria for an increased evaluation. Finally, the Board considered the doctrine of reasonable doubt, but finds that the record does not provide an approximate balance of negative and positive evidence on the merits. Therefore, the Board is unable to identify a reasonable basis for granting an increased evaluation for major depression. Gilbert v. Derwinski, 1 Vet. App. 49, 57- 58 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (1998). ORDER New and material evidence not having been submitted to reopen a claim for service connection for muscle strain of the left trapezius, the appeal with respect to this issue is denied. An increased rating for major depression is denied. MILO H. HAWLEY Acting Member, Board of Veterans' Appeals