Citation Nr: 0003534 Decision Date: 02/10/00 Archive Date: 09/08/00 DOCKET NO. 95-24 768 DATE FEB 10, 2000 On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to an increased rating for bilateral weak feet, currently rated as 10 percent disabling. 2. Entitlement to an increased rating for psychiatric disability, currently rated as 50 percent disabling. REPRESENTATION Appellant represented by: American Ex-Prisoners of War, Inc. WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD Michael P. Vander Meer, Counsel INTRODUCTION The veteran served on active duty from March 1950 to October 1953; he was a prisoner of war of the North Korean government from December 1950 to August 1953. This case is before the Board of Veterans' Appeals (Board) on appeal from an April 1995 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The appeal was last before the Board in February 1998, at which time it was remanded for further development. Following completion of the requested development, the RO, in a rating decision entered in July 1998, continued to deny each issue on appeal. A Supplemental Statement of the Case was mailed to the veteran the same month. Thereafter, the appeal was returned to the Board. The first issue on the title page will be addressed in the decision below. The final issue listed on the title page will be addressed in a remand appearing at the end of the decision. FINDING OF FACT Current manifestations of the veteran's service-connected bilateral weak feet include persistent pain, callosities, and swelling involving the dorsum of each foot, productive, collectively, of severe overall disability. CONCLUSION OF LAW The criteria for a 30 percent rating for bilateral weak feet have been. met. 38 U.S.C.A. 1155, 5107 (West 1991); 38 C.F.R. Part 4, Diagnostic Codes 5277, 5276 (1999). 2 REASONS AND BASES FOR FINDING AND CONCLUSION The Board finds that the veteran's claim for an increased rating for bilateral weak feet is well grounded within the meaning of 38 U.S.C.A. 5107(a). That is, the Board finds that this claim is plausible. The Board is also satisfied that all relevant facts have been properly developed, and that no further assistance to the veteran is required to comply with 38 U.S.C.A. 5107(a). Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R. Part 4 (1999). The Board attempts to determine the extent to which the veteran's service- connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. 1155; 38 C.F.R. 4.1, 4.10 (1999). Service connection is in effect for bilateral weak feet, for which the RO has assigned a 10 percent rating in accordance with the provisions of Diagnostic Code 5277 of the Rating Schedule. In accordance with 38 C.F.R. 4.1 and 4.2 (1999), and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the veteran's service-connected bilateral weak feet. The Board has found nothing in the historical record which would lead it to conclude that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary consideration,; which would warrant an exposition of the remote clinical histories and findings pertaining to such disability. In accordance with Diagnostic Code 5277, a 10 percent rating is warranted, as the minimal evaluation, for bilateral weak foot which is symptomatic. Pursuant to the provisions of Diagnostic Code 5276, a 30 percent rating is warranted for "severe" bilateral acquired flatfoot, with objective evidence of marked deformity (pronation, 3 abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, and characteristic callosities. The veteran contends that his feet hurt in the morning such that he is unable to walk for the first two hours after rising. He also indicates that his feet swell on occasion and that he is able to obtain relief by elevating his feet. In this regard, when he was examined by VA in March 1995, the veteran complained that his feet "hurt". His feet, on physical examination, were described as being "flat and warm with good pedal pulses". The veteran was noted not to be able to tandem walk "very well"; his toe walking was described as being "poor". The pertinent examination diagnosis was pes planus. Most recently, when examined by VA in June 1998, the veteran alluded to having since service experienced pain in the area of his metatarsal arches. On physical examination, he was noted to have pes planus as well as what was described as being "a brawny-type of nonpitting" swelling involving each ankle and the dorsum of each foot. The pertinent examination diagnosis was pes planus, second degree, symptomatic. In considering the veteran's claim for an increased rating for bilateral weak feet, the Board has no reason to question his veracity relative to his assertion of experiencing apparently persistent and long-term foot pain. In addition, while it is unclear whether the VA examiner in June 1998 may have overlooked whether the same were present, the Board has no reason not to believe the veteran's testimony at his June 1995 personal hearing that he experiences recurrent calluses on his feet, suggestive of pertinent disablement warranting a 30 percent rating under Diagnostic Code 5276, which he was obliged to remove approximately every other week. Moreover, on the June 1998 VA examination, the veteran was noted to have swelling involving the dorsum of his feet, the same being consistent with a 30 percent rating under Diagnostic Code 5276. The foregoing clinical characteristics are deemed to be productive of severe overall disability. Therefore, the Board concludes that a 30 percent rating for the veteran's bilateral weak feet is in order. In the absence, however, of any clinical indicia equating with a 50 percent rating under Diagnostic Code 5276, such as marked pronation or extreme tenderness of the 4 plantar surface of either foot, the Board readily concludes that a disability rating in excess of 30 percent is not warranted. 38 U.S.C.A. 1155, 5107; 38 C.F.R. Part 4, Diagnostic Codes 5277, 5276. ORDER An increased rating for bilateral weak feet is granted, to the extent indicated, subject to the controlling regulations governing the payment of monetary benefits. REMAND With respect to the veteran's claim for an increased rating for his service-connected psychiatric disability, the Board observes that when he was examined by VA in November 1995 and June 1998, he was assigned scores of 40 and 4.5, respectively, as being representative of his Global Assessment of Functioning (GAF). Despite the higher GAF on the latter examination, it is uncertain, based on the overall findings of such examination, whether any improvement in the veteran's service- connected psychiatric has in fact occurred. In view of the foregoing, then, the Board is of the opinion that another VA examination, as specified in greater detail below, would be helpful prior to undertaking further appellate action. Further development to facilitate the accomplishment of the same is, therefore, specified below. Accordingly, the case is REMANDED for the following: 1. The RO should arrange for the veteran to undergo a VA examination by a board certified psychiatrist, if available, to determine the current severity of his service-connected psychiatric disability. Further, the examiner is specifically requested to assign a score representative of the veteran's service-connected psychiatric disability-related Global Assessment of 5 Functioning and, in addition, comment on the extent of impairment indicated by such score. Any special diagnostic studies deemed necessary should be performed, and. the claimsfolder should be made available to the examiner for review prior to the examination. 2. The RO should then review the report pertaining to the VA examination performed in response to the previous numerical directive to ascertain whether such examination is in compliance with the Board's examination instructions. 3. Then, after undertaking any development deemed necessary in addition to that specified above, the RO should readjudicate the veteran's claim for an increased rating for psychiatric disability; in readjudicating such claim, the RO should consider the revised criteria pertaining to the evaluation of mental disorders, 38 C.F.R. Part 4 (effective November 7, 1996), as well as the criteria in effect prior to November 7, 1996, rating the veteran under the criteria most favorable to him. 4. If the remaining benefit sought on appeal is not granted to the veteran's satisfaction, or if he expresses disagreement pertaining to any other matter, both he and his representative should be provided with an appropriate Supplemental Statement of the Case. The veteran should also be provided appropriate notice of the requirements to perfect an appeal with respect to any issue(s) addressed therein which does not appear on the title page of this decision. 6 Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. In taking this action, the Board implies no conclusions, either legal or factual, as to any ultimate outcome warranted. No action is required of the veteran unless he is otherwise notified. F. JUDGE FLOWERS Member, Board of Veterans' Appeals 7 028712433 000215 810224D2 DOCKET NO. 91-14 148 DATE FEB 15, 2000 On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to service connection for angioedema, claimed secondary to exposure to herbicide agents. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Jeffrey J. Schueler, Counsel INTRODUCTION The appellant had active service from July to December 1959 and from October 1963 to July 1972. This matter comes to the Board of Veterans' Appeals (Board) from a December 1989 rating decision of the Department of Veterans Affairs (VA) Boston Regional Office (RO). * In that determination, the RO denied the appellant's claims of service connection for a skin disorder, post-traumatic stress disorder (PTSD), and angioedema, and denied the claim for an evaluation in excess of 10 percent for a right leg disorder. He disagreed with the decision and this appeal ensued. By August 1990 rating decision, the rating assigned the right leg disorder was increased to 30 percent. Because the appellant presumably seeks the maximum benefit allowed, the claim for an evaluation in excess of 30 percent remained in controversy. AB v. Brown, 6 Vet. App. 35, 38-39 (1993). The Board remanded these four claims (service connection for a skin disorder, PTSD, and angioedema, and an evaluation in excess of 30 percent for a right leg disorder) in October 1991. Subsequently, procedural actions included the following: By July 1992 rating decision, the RO granted service connection for PTSD. That decision constituted a full award of that benefit sought on appeal. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997); Holland v. Gober, 124 F.3d 226 (Fed. Cir. 1997). For this reason, the Board no longer has jurisdiction over the claim of service connection for PTSD. ---------------------------------------------------------------- During the pendency of this appeal, the appellant relocated to an area served by the Denver RO. Thus, the case is on appeal from the Denver RO. Any references to an RO should be interpreted as either to the Denver RO or Boston RO, unless otherwise specifically noted. 2 - By July 1992 rating decision, the RO rated PTSD as 30 percent disabling from July 28, 1989, as 100 percent disabling under 38 C.F.R. 4.29 from March 6 to April 30, 1992, as 50 percent disabling from May 1 to May 31, 1992, as 100 percent disabling under 38 C.F.R. 4.29 from June 1 to July 31, 1992, and as 50 percent disabling from August 1, 1992. The appellant perfected an appeal seeking higher ratings during these periods when the disability was assigned less than a 100 percent evaluation. In August 1992, the appellant filed a claim for a total disability rating based on individual unemployability (TDIU). The RO denied the claim in a December 1992 rating decision. He disagreed and perfected an appeal. In a January 1995 statement, the appellant contended that he was exposed to herbicide agents during service in Vietnam and that this exposure caused angioedema. The RO, in April 1995, denied service connection for angioedema secondary to exposure to herbicide agents. By August 1995 rating decision, the RO increased the rating assigned his PTSD to 100 percent, effective August 12, 1992. That action left unresolved the claims for evaluations in excess of 30 percent from July 28, 1989 to March 5, 1992 and in excess of 50 percent from May 1 to May 31, 1992 and from August 1 to August 11, 1992. At the conclusion of these actions, the issues- for appellate review were entitlement to service connection for angioedema, including as secondary to exposure to herbicide agents, entitlement to higher ratings for PTSD and a right leg disorder, and TDIU. In September 1995, the appellant noted that his TDIU claim was mooted, and requested that "my case to BVA be stop[p]ed" as "my only concern now" involved his Agent Orange claim. Thus, the sole issue for appellate review is service connection for angioedema secondary to exposure to herbicide agents, as all other matters have been reasonably construed as withdrawn pursuant to express written instruction, noted above. 38 C.F.R. 20.204(b). 3 - FINDING OF FACT Competent evidence has been submitted linking the post-service findings of angioedema to service. CONCLUSION OF LAW The claim of service connection for angioedema secondary to exposure to herbicide agents is well grounded. 38 U.S.C.A. 5107(a) (West 1991). REASONS AND BASES FOR FINDING AND CONCLUSION In general, service connection may be established for disability resulting from disease or injury suffered in line of duty. 38 U.S.C.A. 1110; 38 C.F.R. 3.303. VA regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. 3.303(d). VA regulations pertaining to Agent Orange exposure, now expanded to include all herbicides used in Vietnam, provide that a claimant who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era and has a disease listed at 3.309(e) (1996), as amended by 61 Fed. Reg. 57,586-589 (Nov. 7, 1996), shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. A "herbicide agent" is a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. 38 C.F.R. 3.307(a)(6)(i). "Service in the Republic of Vietnam" includes service in the waters offshore and service in other locations if the conditions of - 4 - service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. 3.307(a)(6)(iii) (1996), as amended by 61 Fed. Reg. 57,586- 589 (Nov. 7, 1996). The evidence of record documents the appellant's service in Vietnam. A Department of Defense (DD) Form 214, Certificate of Release or Discharge from Active Duty, indicated that he received the Vietnam Service Medal and the Vietnam Campaign Medal, service awards signifying service in Vietnam. The record thus supports the conclusion that the appellant served in Vietnam, and thereby had qualifying service in the Republic of Vietnam during the Vietnam era. See 38 C.F.R. 3.307(a)(6)(iii), 3.313(a). As indicated above, a disease associated with exposure to certain herbicide agents listed in 38 C.F.R. 3.309 (1996), as amended by 61 Fed. Reg. 57,586-589 (Nov. 7, 1996), will be considered to have been incurred in service even though there is no evidence of such disease during the period of service. 38 U.S.C.A. 1116 (West 1991 & Supp. 1996); 38 C.F.R. 3.307(a) (1996), as amended by 61 Fed. Reg. 57,586-589 (1996). VA regulations provide that if a veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service- connected if the requirements of 38 C.F.R. 3.307(a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. 3.307(d) are also satisfied: chloracne or other acneform disease consistent with chloracne; Hodgkin's disease; non-Hodgkin's lymphoma; porphyria cutanea tarda; multiple myeloma; respiratory cancers (cancers of the lung, bronchus, larynx, or trachea); and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). The term "soft-tissue sarcoma" includes the following: adult fibrosarcoma; dermato- fibrosarcoma protuberans; malignant fibrous histiocytoma; liposarcoma; leiomyosarcoma; epithelioid leiomyosarcoma (malignant leiomyoblastoma); rhabdomyosarcoma; ectomesenchymoma; angiosarcoma (hemangiosarcoma and lymphangiosarcoma); proliferating (systemic) angioendotheliomatosis; malignant glomus tumor; malignant hemangiopericytoma; synovial sarcoma (malignant - 5 - synovioma); malignant giant cell tumor of tendon sheath; malignant schwannoma, including malignant schwannoma with rhabdomyoblastic differentiation (malignant Triton tumor), glandular and epithelioid malignant schwannomas; malignant mesenchymoma; malignant granular cell tumor; alveolar soft part sarcoma; epithelioid sarcoma; clear cell sarcoma of tendons and aponeuroses; extraskeletal Ewing's sarcoma; congenital and infantile fibrosarcoma; and malignant ganglioneuroma. 38 C.F.R. 3.309(e). Effective November 7, 1996, presumptive service connection is warranted for two additional diseases: acute and subacute peripheral neuropathy and prostate cancer. 61 Fed. Reg. 57,586-589 (1996) (codified at 38 C.F.R. 3.309(e)). Notwithstanding the foregoing, the U.S. Court of Appeals for the Federal Circuit has determined that the Veterans' Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, 5, 98 Stat. 2725, 2727-29 (1984) does not preclude an appellant from establishing service connection with proof of actual direct causation. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Here, the appellant contends that he currently has angioedema. That disease is not listed at 38 C.F.R. 3.309(e), thereby precluding service connection under that provision. However, the appellant maintains that his current angioedema is related to exposure to herbicide agents during his service in Vietnam. The threshold question for resolution is whether the appellant has met his burden of presenting competent evidence of a plausible, well-grounded claim. See Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). An allegation of a disorder that is service connected is insufficient; the appellant must submit evidence in support of a claim that would justify a belief by a fair and impartial individual that the claim is plausible. 38 U.S.C.A. 5107(a); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). The quality and quantity of the evidence required to meet this statutory burden of necessity will depend upon the issue presented by the claim. Grottveit v. Brown, 5 Vet. App. 91, 92-93 (1993). - 6 - In order for a claim of secondary service connection for a disorder (clearly separate from the service-connected disorder) to be well grounded, the veteran must present medical evidence to support the alleged causal relationship between the service- connected disorder and the disorder for which secondary service connection is sought. Jones v. Brown, 7 Vet. App. 134, 137 (1994). See Epps v. Gober, 126 F.3d 1464, 1468 (Fed. Cir. 1997); Caluza v. Brown, 7 Vet. App. 498, 506 (1995) (well- grounded claim also requires competent medical evidence of a current disability). The record includes a September 1992 statement from a private physician indicating that the appellant suffers from severe consequences of toxic exposure, extended over several years, including pronounced angioedema. This statement appears to connect the current angioedema and exposure to some toxic substance. While the physician did not specifically indicate that the toxic exposure involved Agent Orange or some other agent used in Vietnam, or even that the exposure may have occurred in service or in Vietnam, those distinctions do not reduce the probity of the physician's opinion. As such, the Board determines that the record includes competent evidence tending to link current angioedema to exposure to a herbicide agent in Vietnam, thereby satisfying the requirements of a well-grounded claim. As the claim is well grounded, VA is under an obligation to assist the veteran in further development of the claim. 38 U.S.C.A. 5107(a); Murphy, 1 Vet. App. at 81. Action consistent with that duty is addressed in the Remand below. ORDER The claim of entitlement to service connection for angioedema secondary to exposure to herbicide agents is well grounded. (CONTINUED ON NEXT PAGE) 7 - REMAND The appellant has not been afforded an examination by VA to specifically address the central question in this case, whether any current angioedema is related to herbicide agent exposure in Vietnam. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1995) (contemporaneous medical examination required where examination report was approximately two years old). In passing, it is noted that, during VA hospitalization in September 1989, the veteran's angioedema was described as of uncertain etiology with symptoms beginning in September 1988. In view of the foregoing, the case is REMANDED for the following development: 1. The RO should request that the appellant supply the names and addresses of any individuals or treatment facilities that have treated him for angioedema since 1995 and the dates of such treatment. After securing any necessary releases, the RO should obtain complete clinical records of such treatment and associate them with the claims folder. 2. The RO should schedule the appellant for an examination to determine the nature and etiology of any current angioedema. The claimsfolder and a copy of this REMAND must be made available to the physician for review in conjunction with the examination. The pertinent history concerning the disabilities should be obtained, and all necessary tests and studies should be accomplished. The examiner should be asked to provide an opinion as to whether it is as least as likely as not that any current angioedema is related to the appellant's exposure to herbicide agents during his service in Vietnam. - 8 - 3. When the aforementioned development has been completed, the RO should review the record to ensure it is in compliance with this REMAND. If not, the RO should undertake remedial action before returning the claim to the Board. See Stegall v. West, 11 Vet. App. 268, 270-71 (1998). After the development requested above has been completed to the extent possible, the RO should again review the record. If any benefit sought on appeal, for which a notice of disagreement has been filed, remains denied, the appellant and his representative should be furnished a supplemental statement of the case and given the opportunity to respond. Thereafter, the case should be returned to the Board. The appellant has the right to submit additional evidence and argument on the matters remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). J.F. Gough Member, Board of Veterans' Appeals 9 -