Citation Nr: 0001340 Decision Date: 01/14/00 Archive Date: 01/27/00 DOCKET NO. 96-09 738 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for a heart disorder secondary to service-connected post-traumatic stress disorder (PTSD). 2. Entitlement to an increased evaluation for PTSD, currently rated as 50 percent disabling. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD J.R. Bryant, Counsel INTRODUCTION The veteran served on active duty from March 1968 to October 1969. This matter originally came to the Board of Veterans' Appeals (Board) on appeal from rating decisions in September 1994 and June 1995 by the RO. By a rating action in June 1999, a 50 percent evaluation was assigned to the service-connected PTSD. On a claim for an original or increased rating, the veteran will generally be presumed to be seeking the maximum benefit allowed by law; it follows that such a claim remains in controversy where less than the maximum available benefit is awarded. AB v. Brown, 6 Vet.App. 35 (1993). Thus, the claim for a higher evaluation for PTSD remains in appellate status before the Board. This case was previously before the Board and was remanded in October 1997 and April 1998. FINDINGS OF FACT 1. Although a private physician has opined that it is possible that PTSD could have played a contributory role in the development of the veteran's heart disease, the preponderance of the persuasive medical evidence of record establishes that there is no medical nexus between the veteran's heart disorder and his service-connected PTSD. 2. The veteran's PTSD is manifested by depression, intrusive thoughts, nightmares, intense psychological stress and markedly diminished interest in activities, all productive of no more than considerable social and industrial impairment or occupational and social impairment with reduced reliability and productivity. The veteran maintains full-time employment as a construction building inspector. CONCLUSIONS OF LAW 1. The veteran's heart disorder is not proximately due to or the result of his service-connected PTSD. 38 U.S.C.A. §§ 1110, 5107 (West 1991 & Supp. 1999); 38 C.F.R. § 3.310(a) (1999). 2. The criteria for an evaluation in excess of 50 percent for PTSD have not been met. 38 U.S.C.A. § 1155 (West 1991 & Supp. 1999); 38 C.F.R. § 3.321, 4.1, 4.2, 4.7, 4.130, Diagnostic Code (DC) 9411 (1999);38 C.F.R. § 4.132, DC 9411 (1995). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Factual Background Service connection for PTSD was established by a May 1986 rating decision and a 10 percent evaluation was assigned. In April 1994, the veteran filed claims for an increased evaluation for his service-connected PTSD and for service connection for heart disorder secondary to PTSD. In support of his claims, he submitted a statement indicating that he had a heart attack in February 1994. He stated that because he did not have a family history of heart disease in his immediate family, he believed his time overseas contributed to his heart condition. He also submitted an excerpt from a book regarding biological reactions to stress. On VA examination in June 1994, the veteran was mildly anxious and mildly depressed. His medical history was significant for heart disease and his primary complaint was of an increase in nervousness, hyperactivity and nightmares since a heart attack in February 1994. During evaluation the veteran was cooperative and there were no motor abnormalities noted. His stream of speech was of normal productivity, spontaneity, rate and volume. There were no perceptual disturbances observed. He was well oriented and his sensorium was clear. His recent and remote memory were both very good. The diagnosis was PTSD, relatively mild and alcohol abuse, relatively mild but increasing since his heart attack. The evidence of record also includes private medical records which show evaluation and treatment of the veteran for coronary artery disease and a myocardial infarction between February and September 1994. The veteran underwent a quadruple coronary artery bypass in October 1994. Also of record are VA outpatient treatment records pertaining to an Agent Orange examination in April 1979. The veteran attributed burning chest pain with shortness of breath to Agent Orange exposure during service in Vietnam. He underwent a fat wall biopsy in order to determine if there was any residual herbicide. An April 1995 VA outpatient treatment record shows the veteran was undergoing weekly evaluation for PTSD which was to continue for an additional six months up to one year. The examiner noted the veteran had not made much progress and remained tense, quick-to-anger, mistrustful, depressed and preoccupied with how Vietnam had damaged him both physically and emotionally. The veteran described his job as a building inspector as "difficult" and that he is "hassled by disgruntled citizens" and "pushed by an inflexible boss." He stated that he becomes agitated and is unable to calm down which causes him to engage in excessive drinking on the weekends. In a statement received by the RO in May 1995, the veteran stated that his health problems were directly related to service. He indicated that he has had numerous jobs that have lasted only a day or more with many job changes. He also stated that his quality of life has suffered as a result of his Vietnam experiences. Of record is a limited report of the veteran's employment history. During his personal hearing in September 1995, the veteran testified that being under a lot of tension and stress in Vietnam changed his cardiac profile compared to his brothers. He testified that he was first aware of having a heart condition during a VA Agent Orange examination in April 1979. He also testified that his blood pressure has always been borderline during his entire life but that he was not on any hypertension medication prior his heart attack in February 1994. With respect to his PTSD symptoms the veteran testified that he suffers from severe depression and unsatisfactory relationships with people in general. He has frequent nightmares and intrusive thoughts about Vietnam and has difficulty concentrating at work. The veteran was divorced but maintains a positive relationship with his daughter and generally sees his brothers during family gatherings and holidays. He described his relationship with his son as "distant". A July 1995 statement from the veteran's private psychologist, P.J. Coe, Ph.D., indicates that the veteran had been in therapy for the prior eight months. He described the veteran as unhappy, bitter and quick to react to provocation or slights with explosive anger. Dr. Coe stated this may have played a role in the development of the veteran's heart disease noting his history of heart attack, angioplasty and subsequent by-pass surgery. The examiner further stated that now that the veteran has a damaged heart, there was a serious risk that his psychological problems could contribute to a subsequently and potentially fatal heart attack, (citing to the Journal of American College of Cardiology 1994 Dec;24:1645-51). Dr. Coe then concluded that given the fact that there was no heart disease in the veteran's family, it was possible that PTSD could have played a significant contributory role in the development of his heart disease. A 30 percent evaluation was assigned by a rating decision in February 1996. On VA examination in January 1999 the veteran's primary complaints were of increased depression following heart surgery, intrusive thoughts, nightmares, guilty feelings and isolation. He stated that he did not feel comfortable going to group and did not know what the group could contribute to him. He also could not share his feelings with his wife or children. He complained that his physical activity was limited and that he had problems with concentration, memory and sleeplessness. He stated that he is more distant with people than before and more irritable. The veteran's occupational history includes employment as a carpenter from 1979 to 1986 and later as a construction building inspector. He is currently employed and continues to work as building inspector. He claimed he is becoming more tired and unable to perform his duties or work with people and that increasingly his condition is becoming more of a problem for him at work. He has been hospitalized in the past and received occasional treatment for PTSD. However, at the time of the examination he was not attending any VA clinic for PTSD. The veteran's medical history is also significant for coronary artery disease, with bypass surgery in 1994, hypercholesterolemia, hypertension and back surgery in 1986. The veteran reported that intrusive thoughts of his Vietnam experiences have increased since his heart attack and that at times he finds himself very depressed. He feels that chronic stress has contributed to his heart attack as he did not have any family history of heart problems. He reported that after he Vietnam he was evaluated by VA and complained of chest pain, anxiety and elevated blood pressure, but at that time was more worried about Agent Orange. On psychiatric examination, the veteran was alert and oriented. There was no thought disorganization or perceptual disturbances noted. His affect was appropriate and his mood depressed. His memory was intact and competent. The veteran experiences crying spells, intrusive thoughts, distressing recollections of Vietnam experiences and intense psychological distress. He also has guilt feelings and markedly diminished interest in activities. He denied suicidal plans, but admitted to having suicidal ideation. The clinical impression was severe PTSD and depressive disorder. The veteran's Global Assessment of Functioning Scale (GAF) score was 45-50. The psychiatrist noted that the veteran had remarried and had been employed as a building inspector for the last eight months. He had performed the same type of work for ten years prior to that and was previously employed as a carpenter for 14 years. The examiner concluded that although the veteran's significant medical conditions may lead to job difficulties in the future, he was currently employed full-time. As regards the question of a relationship between PTSD and the veteran's heart condition, the psychiatrist stated that the causes and aggravation of heart disease and hypertension were normally multifactorial and noted the veteran's history of chronic smoking, obesity and hypercholesterolemia, prior to before he his heart attack in 1994. The examiner concluded it was less likely than not that the veteran's heart disease was caused by his PTSD. During a VA heart examination in April 1999, the veteran's history was traced back to his 1984 back surgery when he was told that he had borderline hypertension and given medication. At that time he was also told that he had hypercholesterolemia, but did not have a cardiac diagnosis until 1994. The veteran reported that in 1979, during examination for Agent Orange exposure, he complained of shortness of breath, chest pain and anxiety but was not told that the had angina or cardiac problems. The clinical impression was hypertension, hypercholesteremia, coronary artery disease, status post myocardial infarction, status post angioplasty, status post coronary artery bypass graft. The examiner opined that it was less likely than not that the veteran's heart condition was either caused or aggravated by his PTSD. A rating decision was issued in June 1999 that increased the evaluation to 50 percent. Additional evidence submitted in support of the veteran's claim includes lay statements from his brothers and fellow servicemen relating their observations of the veteran's mental and physical condition during and subsequent to active duty. The veteran has submitted several articles as well as documentation of his combat experiences during his tour of duty in Vietnam. II. Analysis A. Service connection The law permits the grant of service connection for a disability that results from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110. Service connection also may be granted for a "[d]isability which is proximately due to or the result of a service- connected disease or injury. .. " 38 C.F.R. § 3.310(a) (1996); Harder v Brown, 5 Vet. App. 183, 187-89 (1993). That regulation has been interpreted to permit service connection for the degree of disability resulting from aggravation of nonservice-connected disorder by a service-connected disorder. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). 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). The United States Court of Veterans Appeals-now the United States 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." Such a claim need not be conclusive but only possible to satisfy the initial burden of 38 U.S.C.A. § 5107. Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). If the claim is not well grounded, the claimant cannot invoke the VA's duty to assist in the development of the claim, and the claim must fail. See 38 U.S.C.A. § 5107(a) (West 1991 & Supp. 1999); Slater v. Brown, 9 Vet. App. 240, 243 (1996); Gregory v Brown, 8 Vet. App. 563, 568 (1996) (en banc); Grivois v. Brown, 6 Vet. App. 136, 140 (1994); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). To support his assertions that chronic stress associated with his service connected PTSD caused his heart disorder, the veteran has submitted a statement from his private psychologist indicating that PTSD could possibly have played a significant contributory role in the development of his heart disease. Such medical opinion is sufficient to well ground the claim. However, the Board finds that such opinion is outweighed by more definitive opinions by the VA examiners in April and May 1999, each of whom effectively ruled out such a relationship. As noted above, the May 1999 psychiatrist indicated that it was less likely than not that the veteran's PTSD caused his heart condition, whereas the April 1999 cardiologist offered that it was less likely than not that the veteran's PTSD caused or aggravated his heart condition. Clearly, both VA examiners had access to the veteran's claims file, and each report reflects consideration of the veteran's documented medical history; Dr. Coe's consideration of the veteran's medical/psychological history appears to be based only upon what the veteran told him. The Board also finds that at least one of the negative VA opinions is better reasoned that Dr. Coe's positive opinion. Whereas Dr. Coe pointed to the lack of a family history of heart disease as a primary basis for his conclusion, it is significant that, in his report, the VA psychiatrist identified other risk factors for the veteran developing heart disease-namely, his history of chronic smoking, obesity, and hypercholesterolemia. Interestingly, none of these risk factors were addressed in Dr. Coe's report. In short, the Board concludes that of the opinions offered, greater weight is to be accorded the recent VA examiners' findings and conclusions for the purpose of deciding this appeal. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) ("It is the responsibility of the BVA to assess the credibility and weight to be given the evidence") (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). See also Guerrieri v. Brown, 4 Vet.App. 467, 470-471 (1993) (the probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board). Again, the Board notes that the VA examination reports were comprehensive and the opinion contained therein rendered after a contemporaneous examination of the veteran and thorough review of the veteran's service medical records and extensive post-service medical evidence, both VA and private, comprising the claims file. There is no similar indication in the record that Dr. Coe had the benefit of such a longitudinal review. The veteran's testimony and the lay statements of his relatives and friends also have been considered, but these statements are not competent evidence of causality. As laymen without medical training or expertise, they are not competent to give a medical opinion on diagnosis or etiology of a disorder. See LeShore v. Brown, 8 Vet.App. 406 (1995) and Dean v. Brown, 8 Vet.App. 449 (1995), citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992). In light of the foregoing, the Board finds that the preponderance of the evidence is against a holding that the veteran's heart disorder is in any way related to his PTSD, either causally or on the basis of aggravation. The Board has considered the applicability of the benefit of the doubt doctrine; however, as the preponderance of the evidence is against the veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 1991); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991). II. Increased Rating The Board finds that the veteran's claim for an increased rating is well grounded within the meaning of 38 U.S.C.A. § 5107(a). A claim that a service-connected condition has become more severe is well grounded where the claimant 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). The Board is also satisfied that all relevant facts have been properly developed, and that no further assistance to the veteran is required in order to comply with 38 U.S.C.A. § 5107(a). Prior to November 7, 1996, psychoneurotic disorders were evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.132, Code 9411 (1995). As the veteran's claim for an increased rating for PTSD was pending when the regulations pertaining to psychiatric disabilities were revised, he is entitled to the version of the law most favorable to him. See Karnas v. Derwinski, 1 Vet.App. 308, 312-313 (1991). As reflected in the June 1999 Supplemental Statement of the Case, the RO has considered the veteran's claim under both the former and revised applicable schedular criteria, and applied the more favorable result. The Board will do likewise. Under the former applicable criteria, a 50 percent rating contemplates that the ability to establish and maintain effective or favorable relationships with people is considerably impaired, and by reason of the psychoneurotic symptoms the reliability, flexibility and efficiency levels are so reduced as to result in considerable industrial impairment. A 70 percent disability rating is warranted for severe impairment in the ability to establish and maintain effective or favorable relationships with people and psychoneurotic symptoms are of such severity and persistence that there is severe impairment in the ability to obtain or retain employment. A 100 percent evaluation is warranted where the attitudes of all contacts except the most intimate are so adversely affected as to result in virtual isolation in the community, the veteran has totally incapacitating psychoneurotic symptoms bordering on gross repudiation of reality with disturbed thought or behavioral processes associated with almost all daily activities such as fantasy, confusion, panic and explosions of aggressive energy resulting in profound retreat from mature behavior, or the veteran is demonstrably unable to obtain or retain employment. 38 C.F.R. § 4.132, Code 9411 (1995). Under the new General Rating Formula for Mental Disorders, a 50 percent rating contemplates 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 complete 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. A 70 percent evaluation requires occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near- continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); inability to establish and maintain effective relationships. A 100 percent rating is warranted if there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation or own name. 38 C.F.R. § 4.130, Code 9411 (1999). Considering the evidence of record in light of the applicable schedular criteria, the Board finds that the veteran's ability to establish and maintain effective or favorable relationships with people is not to be so severely impaired as to meet the criteria for at least the next higher 70 percent evaluation under the former criteria. The psychiatric examinations reveal that the veteran's PTSD is manifested by depression, intrusive thoughts, nightmares, intense psychological stress and markedly diminished interest in activities. However, the veteran has maintained a second marriage and has positive relationships with his daughter and brothers. He is also able to maintain his work relationship sufficiently to remain stable in his job as a construction building inspector. He currently requires no ongoing psychiatric treatment. This, the Board finds that his PTSD is shown to produce no more than "considerable" impairment. With respect to the new rating criteria, the Board notes that medical evidence on file, including the clinical findings from the 1999 VA compensation examinations show that the veteran was well oriented and alert with no thought disorganization or perceptual disturbances noted. There was evidence of crying spells, intrusive thoughts, distressing recollections of Vietnam and intense psychological distress; however, these symptoms are consistent with a 50 percent disability evaluation under the revised rating criteria. However, the veteran maintains full time employment and good relationship with his daughter and brothers, although his relationship with his son is strained. There is no evidence the veteran's symptoms so reduce his reliability or efficiency as to severely impair his ability to obtain or retain employment as reflected by the fact that the veteran continues to maintain full time employment. There is evidence of near continuous depression, but no panic attacks. There is no evidence of impaired impulse control such as unprovoked irritability. There is no evidence that the veteran's speech has ever been illogical or irrelevant, that he neglects his personal appearance or hygiene, or that he engages in obsessional rituals which interfere with work. Consequently, an increased rating, to at least 70 percent, is not warranted under the new criteria. The Board acknowledges that the veteran's GAF score has been assessed as 45 to 50, which is consistent with serious symptoms such as suicidal ideation, severe obsessional rituals or frequent shoplifting, or any serious impairment in social, occupation or school functioning. See the Fourth Edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders. However, after considering this GAF score in light of the entire evidence of record, the Board finds that the veteran does not have PTSD symptoms more nearly approximately the criteria for at least a 70 percent evaluation under either the former or revised rating criteria. Inasmuch as the criteria for the next higher 70 percent evaluation under either set of rating criteria has not been met, it logically follows that the criteria for a 100 percent evaluation under either set of rating criteria likewise are not met. The Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 1991); Gilbert, 1 Vet. App. at 55-57. The above determinations are based upon consideration of applicable provisions of the rating schedule. Additionally, however, there is no showing that the veteran's disability currently under consideration reflects so exceptional or so unusual a disability picture as to warrant the assignment of any higher evaluation on an extra-schedular basis. In this regard, the Board notes that the disability is not objectively shown to result in marked interference with employment (i.e., beyond that contemplated in the assigned rating). Moreover, the condition is not shown to warrant frequent periods of hospitalization or to otherwise render impractical the application of the regular schedular standards. In the absence of evidence of such factors as those outlined above, the Board is not required to remand the claim to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1). See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER Service connection for a heart disorder secondary to service- connected PTSD is denied. An evaluation in excess of 50 percent for PTSD is denied. JACQUELINE E. MONROE Member, Board of Veterans' Appeals