Citation Nr: 0003885 Decision Date: 02/15/00 Archive Date: 02/23/00 DOCKET NO. 94-41 039 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to an increased rating for post traumatic stress disorder, currently rated as 50 percent disabling. 2. Entitlement to service connection for arthritis of the neck and back. 3. Entitlement to service connection for a cardiovascular disability, to include hypertension. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant, his spouse, and his sister-in-law ATTORNEY FOR THE BOARD Thomas D. Jones, Associate Counsel INTRODUCTION The veteran served on active duty from September 1965 to September 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 1992 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA), which In the course of this appeal, the veteran was awarded an increased rating, to 50 percent, for his service connected post traumatic stress disorder. However, because there has been no clearly expressed intent on the part of the veteran to limit his appeal to entitlement to a specified disability rating, the VA is required to consider entitlement to all available ratings for that disability. Fenderson v. West, 12 Vet. App. 119, 126 (1999) [citing AB v. Brown, 6 Vet. App. 35, 38 (1993)]. As the veteran was award a disability rating of less than the maximum available rating for his service connected disability, this issue remains in appellate status. The veteran requested a personal hearing before a member of the Board. Such a hearing was afforded him in September 1999. At that time, the veteran requested a total disability rating due to individual unemployability. While this issue has not been developed for appellate review, and therefore will not be considered by the Board at this time, the RO is invited to develop this claim as the facts warrant. FINDINGS OF FACT 1. The veteran engaged in combat during his term of military service. 2. The veteran has a current diagnosis of degenerative disc disease of the cervical spine. 3. Medical evidence has not been presented which would indicate that the veteran's current degenerative disc disease was first incurred in service, or within a year thereafter, or is due to or results from the conditions of service. 4. The veteran has been awarded service connection for post traumatic stress disorder. 5. The veteran has a current diagnosis of hypertension. 6. The veteran did not incurred a cardiovascular disability during military service, or within a year thereafter. 7. Medical evidence has not been presented which would indicate that the veteran's current cardiovascular disability is due to or results from a service connected disability. CONCLUSIONS OF LAW 1. Service connection for arthritis of the neck and back is denied as not well grounded. 38 U.S.C.A. §§ 1110, 1112, 1113 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (1999). 2. Service connection for a cardiovascular disability is denied as not well grounded. 38 U.S.C.A. §§ 1110, 1112, 1113 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.310 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Background According to the veteran's service medical records, he had no history of disability of the neck or abdomen at the time he entered service in September 1965, and none was noted upon physical examination. His service medical records are likewise without mention of any diagnosis of or treatment for a disability of the neck or back, including arthritis, and his September 1968 service separation examination report indicates no abnormalities of these areas. In February 1992, the veteran filed a claim for an increased rating, in excess of 30 percent, for post traumatic stress disorder, and for service connection for arthritis of the toes, neck, and spine, and a cardiovascular disability. According to the veteran's contentions, the stress and anxiety resulting from his service connected post traumatic stress disorder has caused hypertension. He has also alleged that the medication he takes to control his anxiety and panic attacks causes high blood pressure as a side effect. In May 1992, the RO issued a rating decision denying the veteran's claim for an increased rating for his post traumatic stress disorder. Also denied was service connection for arthritis of the neck and spine, and for a cardiovascular disability, among other issues. In July 1992, the veteran filed a notice of disagreement regarding the denial of an increased rating for his post traumatic stress disorder, and service connection for arthritis of the neck and spine, and a cardiovascular disability. He was sent an August 1992 statement of the case, and in turn filed an October 1992 VA Form 9. He also requested a personal hearing. VA treatment records obtained by the RO reveal that the veteran has been receiving outpatient medical treatment and psychiatric counseling since at least 1989. According to these VA clinical notes, he has reported pain of the spine and neck. A May 1991 X-ray of the cervical spine revealed degenerative disc disease, with joint space narrowing, and straightening of the normal lordotic curve due to muscle spasm. Osteoarthritis of the cervical spine was also diagnosed. A subsequent July 1992 consultation report indicated cervical spondylosis, for which physical therapy was recommended. The veteran's VA outpatient treatment records also reflect a diagnosis of hypertension. He was afforded a VA EKG in November 1995, and a sinus tachycardia and anterolateral ischemia were suspected. He continues to receive VA medical treatment on an intermittent basis. In March 1993, the veteran filed a written statement with the VA concerning his claimed disabilities. He asserted that the poor living conditions which he endured in Vietnam resulted in his current arthritis of multiple joints. The veteran was afforded VA hospitalization in April 1996 for removal of a left adrenal adenoma. A longstanding history of hypertension, dating back to 1974, was noted as part of his medical history. In September 1999, the veteran, accompanied by his wife and sister-in-law, testified on his own behalf at a personal hearing before a member of the Board. He reported experiencing neck pain which began during his second tour of duty in Vietnam. The veteran's wife also testified that she has known him since he was discharged from service, and he has had pain of the neck since that time. Regarding his post traumatic stress disorder, the veteran stated the stress associated with this service connected disorder has caused cardiovascular problems, including hypertension. Analysis I. Service connection - Arthritis of the neck and back The veteran seeks service connection for arthritis of multiple joints, including the neck and back. Service connection will be awarded for a current disability which is due to or the result of a disease or injury incurred in or aggravated by service in order for service connection to be warranted. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. §§ 3.303, 3.304 (1999). Certain statutorily enumerated disorders, including arthritis, may be presumed to have been incurred in service if they manifest to a compensable degree within one year after separation from service. 38 U.S.C.A. §§ 1110, 1112, 1113 (West 1991 & Supp. 1999) ; 38 C.F.R. §§ 3.307, 3.309 (1999). However, the preliminary requirement for establishing entitlement to any VA benefit is that the applicant submit a claim which is 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). The U. S. Court of Appeals for Veterans Claims (Court) has defined a well- grounded claim as "a plausible claim, one which is meritorious on its own or capable of substantiation." Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). Such a claim need not be conclusive, but only possible, to satisfy the initial burden of § 5107. Id. Case law promulgated by the Court has resulted in what is in effect a three pronged test to determine whether a claim is well grounded. There must be competent evidence of a current disability (medical diagnosis), of incurrence or aggravation of a disease or injury in service (lay or medical evidence), and of a nexus between the injury or disease in service and the current disability (medical evidence). See Rabideau v. Derwinski, 2 Vet. App. 141 (1992); Grottveit v. Brown, 5 Vet. App. 92 (1993); Grivois v. Brown, 6 Vet. App. 136 (1994); Caluza v. Brown, 7 Vet. App. 498 (1995). To be well grounded, a claim must be supported by evidence that suggests more than a purely speculative basis for an award of benefits; evidence is required, not just allegations. Tirpak v. Derwinski, 2 Vet. App. 609 (1992); Dixon v. Derwinski, 3 Vet. App. 261 (1992). In support of his claim, the veteran has submitted VA medical records which contain a current diagnosis of degenerative disc disease of the cervical spine, confirmed by X-ray. As this competent medical evidence is not contradicted elsewhere in the medical record, a current diagnosis of degenerative disc disease of the cervical spine is conceded by the Board. Nonetheless, for the reasons to be noted below, the veteran's claim for service connection for arthritis of the neck and back must be denied as not well grounded. As the veteran claims to have been awarded the Purple Heart medal, his participation in combat is conceded by the Board. As a combat veteran, the statutory benefits of 38 U.S.C.A. § 1154(b) are applicable to the veteran's claim. 38 U.S.C.A. § 1154(b) (West 1991); 38 C.F.R. § 3.304(d) (1999). Under these presumptions, the veteran's lay testimony regarding diseases and injuries incurred in or aggravated by service will be accepted as true in the absence of evidence to the contrary, if they are consistent with the circumstances, conditions, or hardships of service. In the present case, the veteran has stated that he endured poor living conditions during his service in Vietnam. These conditions consisted of constant exposure to the elements, including rain, mud, and cold, no dry change of clothes, and no facilities for cleaning himself or his clothing. This testimony is accepted as true by the Board. Nevertheless, while it is accepted by the Board that the veteran endured difficult living conditions while serving in Vietnam, the current record does not include all the elements of a well-grounded claim. The record does not include medical evidence showing that the difficult living conditions in Vietnam caused the arthritis the veteran has now. The statutory presumptions of 38 U.S.C.A. § 1154(b) do not exempt the veteran from the prior requirement of medical nexus evidence, linking the injury or disease in service and the current disability, in order for his claim to be well grounded and, ultimately, to succeed on the merits. Kessel v. West, 13 Vet. App. 9, 16-17 (1999). Likewise, 38 U.S.C.A. § 1154(b) does not qualify the veteran to state that the living conditions he found in Vietnam ultimately resulted in arthritis of the neck and spine, as this assertion requires medical expertise not possessed by him. See Pearlman v. West, 11 Vet. App. 443, 447 (1998) [citing Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992)]. In the absence of such medical nexus evidence, the veteran's claim is not well grounded. Caluza, supra. The veteran, along with his wife, has also testified that he has had chronic pain of the neck and back since his separation from service, and the continuity of this pain demonstrates that his current arthritis has existed since that time. Regarding his claimed pain of the neck and back, the veteran is certainly competent to offer credible lay testimony regarding such easily observable symptomatology as pain. See Falzone v. Brown, 8 Vet. App. 398 (1995); Layno v. Brown, 6 Vet. App. 465 (1994). However, reports of continuous pain since service are insufficient to demonstrate that any in-service disease or injury resulted in the veteran's current disability. When confronted with similar facts in the case of Savage v. Gober, 10 Vet. App. 488 (1997), the Court stated that "notwithstanding the appellant's showing of post-service continuity of symptomatology . . . , medical expertise is required to relate the appellant's present arthritis etiologically to his post-service symptoms." Id. at 497-98 [citing Epps v. Gober, 126 F.3d 1464, 1468-69 (Fed. Cir. 1997)]; see also Hodges v. West, No. 98-1275 (U.S. Vet. App. Jan. 12, 2000). The Court's holdings are especially applicable in the present case where arthritis, or any other abnormality, of the neck and back, was not noted on the veteran's September 1968 service separation examination, and arthritis was first diagnosed in the 1990's, more than 20 years after his separation from service. In conclusion, the veteran's claim for service connection for arthritis of the neck and back lacks evidence that this disability was incurred in or aggravated by service. While it is conceded by the Board that the veteran endured substandard living conditions while serving in Vietnam, he has not presented medical evidence that these conditions resulted in his current disability of arthritis. The evidence of record also does not otherwise demonstrate the onset of arthritis of the neck and back during service, or within a year thereafter. For these reasons, the claim is not well-grounded, and must be denied. Caluza, supra. II. Service connection - Cardiovascular disability The veteran seeks service connection for a cardiovascular disability, identified as hypertension, which allegedly is due to or results from post traumatic stress disorder. Service connection will be awarded for a current disability which is due to or the result of a disease or injury incurred in or aggravated by service in order for service connection to be warranted. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. §§ 3.303, 3.304 (1999). Certain statutorily enumerated disorders, including certain cardiovascular disabilities, may be presumed to have been incurred in service if they manifest to a compensable degree within one year after separation from service. 38 U.S.C.A. §§ 1110, 1112, 1113 (West 1991 & Supp. 1999) ; 38 C.F.R. §§ 3.307, 3.309 (1999). Service connection may also be awarded for a disability which is proximately due to or the result of a service connected disability. 38 C.F.R. § 3.310 (1999). However, the preliminary requirement for establishing entitlement to any VA benefit is that the applicant submit a claim which is 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). The requirements of a well grounded claim are noted above. For the reasons to be discussed below, the veteran's claim for service connection for a cardiovascular disability, to include hypertension, is not well grounded, and must be denied. As an initial matter, direct service connection for a cardiovascular disability must be considered. The veteran has submitted medical evidence of a current cardiovascular disability, diagnosed as hypertension; however, the service medical records do not demonstrate, and the veteran does not allege, that hypertension or any other cardiovascular disease or injury was incurred in or aggravated by service, or manifested to a compensable degree within a year thereafter. His September 1968 service separation examination is negative for any cardiovascular abnormality at that time, and a concurrent chest X-ray and EKG were both within normal limits. Thereafter, the veteran was not diagnosed with a cardiovascular disability until the mid 1970's at the earliest, a time gap of more than one year after service separation, and no medical evidence of record indicates his current cardiovascular disability had its onset during service, or within a year thereafter. 38 U.S.C.A. §§ 1110, 1112, 1113 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (1999). For this reason, the claim for service connection, on a direct basis, for a cardiovascular disability is not well grounded. Caluza, supra. However, the veteran has repeatedly alleged that his hypertension is secondary to the stresses associated with his service connected post traumatic stress disorder. According to his statements, various physicians have told him that his hypertension is a direct result of his post traumatic stress disorder, and medications he takes thereto. While the RO has requested all the medical records indicated by the veteran, none of these records contain such a statement by a competent medical expert. A current diagnosis of hypertension is confirmed by the medical evidence, and sinus tachycardia and anterolateral ischemia were suspected based on the results of a November 1995 VA EKG examination, but no medical professional of record has suggested any of these disabilities is due to or the result of the veteran's service connected post traumatic stress disorder, or his associated medication. The veteran himself has repeatedly asserted that his cardiovascular disabilities result from his service connected post traumatic stress disorder, but he is not shown to be a medical expert qualified to offer medical opinion evidence; therefore, his lay assertions are not binding on the Board, and are insufficient to well grounded his claim. See Pearlman v. West, 11 Vet. App. 443, 447 (1998) [citing Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992)]. In conclusion, the veteran's claim must be denied as not well grounded. Evidence has not been provided which would demonstrate that the veteran incurred or aggravated a cardiovascular disability in service or within a year thereafter. 38 U.S.C.A. §§ 1110, 1112, 1113 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (1999). He has also not presented medical evidence indicating that any current cardiovascular disability is due to or the result of a service connected disability. 38 C.F.R. § 3.310 (1999). For these reasons, his claim for service connection for a cardiovascular disability is not well-grounded, and must be denied on that basis. See Caluza, supra. ORDER 1. Service connection for arthritis of the neck and back is denied. 2. Service connection for a cardiovascular disability is denied. REMAND 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). The law requires full compliance with all orders in this remand. Stegall v. West, 11 Vet. App. 268 (1998). Although the instructions in this remand should be carried out in a logical chronological sequence, no instruction in this remand may be given a lower order of priority in terms of the necessity of carrying out the instruction completely. As an initial matter, the veteran's claim for an increased rating for his service connected post traumatic stress disorder is well grounded. A claim for an increased rating for a service connected disability is well grounded where the veteran asserts that a higher rating is justified due to an increase in severity. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); Proscelle v. Derwinski, 2 Vet. App. 629, 631-632 (1992). Because the veteran's claim is well grounded, the VA's statutory duty to assist attaches. 38 U.S.C.A. § 5107(a) (West 1991). At his September 1999 personal hearing before the Board, the veteran argued that subsequent to his most recent VA psychiatric examination, dated September 1997, he has experienced an increase in the severity of his symptomatology resulting from post traumatic stress disorder. Because the VA's statutory duty to assist includes affording the veteran a thorough and contemporaneous medical examination reflecting his current level of impairment, a remand is thus required to fulfill this obligation. See Pond v. West, 12 Vet. App. 341 (1999). As is noted above, this action originates from a May 1992 rating action. The provisions of the rating schedule for determining the disability evaluations for mental disorders were changed effective November 7, 1996. Where a 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 most favorable to the veteran will apply. Karnas v. Derwinski, 1 Vet. App. 308 (1991). Therefore, the veteran is entitled to evaluation of his increased rating claim under both the new and the old criteria. For the applicable period, the RO must continue to consider both the new and the old criteria and apply the criteria that result in the most favorable outcome for the veteran. Thus, in light of the above, this claim is remanded for the following additional development: 1. The RO and any physician to whom this case is assigned for an examination and/or a statement of medical opinion must read the entire remand, to include the explanatory paragraphs above the numbered instructions. 2. The RO must ensure that all pertinent records of treatment are associated with the claims folder. 3. The veteran should be scheduled for a VA psychiatric examination. The claims folder should be reviewed in conjunction with the examination. The psychiatrist should review the new and old rating criteria for mental disorders, and all indicated tests must be conducted. The findings of the psychiatrist must address the presence or absence of the specific criteria, both old and new, set forth in the rating schedule and, if present, the frequency and/or degree(s) of severity thereof. Any necessary special studies or tests are to be accomplished. The examiner should identify diagnostically all psychiatric symptoms and clinical findings which are manifestations of his service-connected post traumatic stress disorder, and render an opinion for the record as to the degree to which those specific symptoms and findings affect the veteran's ability to establish and maintain effective and favorable relationships with people (social impairment), and the degree to which they affect his reliability, productivity, flexibility, and efficiency levels in performing occupational tasks (industrial impairment). See Massey v. Brown, 7 Vet. App. 204 (1994). The examiner should assign a numerical code under the Global Assessment of Functioning Scale (GAF) provided in the Diagnostic and Statistical Manual for Mental Disabilities. This assessment should be based only on the veteran's service connected disability of post traumatic stress disorder. It is imperative that the physician explain the significance of the numerical code assigned in order to assist the RO and the Board to comply with the requirements of Thurber v. Brown, 5 Vet. App. 119 (1993). A complete rationale for any opinion expressed must be provided. 3. After completion of all requested development, if other development is felt necessary it should be accomplished. The RO should review the veteran's claim under both the old and the new rating criteria and rated in accordance with the guidance expressed by the Court in Karnas including the question of the veteran's entitlement to a total rating. If the action taken remains adverse to the veteran in any way, he and his representative should be furnished with a supplemental statement of the case. They should then be afforded a reasonable opportunity to respond. Thereafter, the case should be returned to the Board for further appellate consideration, if such is warranted. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise 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. G. H. SHUFELT Member, Board of Veterans' Appeals