Citation Nr: 0003438 Decision Date: 02/10/00 Archive Date: 02/15/00 DOCKET NO. 93-05 509 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia THE ISSUES Entitlement to service connection for chloracne. Entitlement to an increased evaluation for post-traumatic stress disorder (PTSD), currently rated as 50 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL The veteran ATTORNEY FOR THE BOARD Richard V. Chamberlain, Counsel INTRODUCTION The veteran had active service from January 1970 to August 1971. He served in Vietnam from June 1970 to August 1971. This appeal comes to the Board of Veterans' Appeals (Board) from 1991 and later RO decisions that denied service connection for chloracne, increased the evaluation for PTSD from 30 to 50 percent, and denied a total rating for compensation purposes based on unemployability. In October 1993, the Board remanded the case to the RO for additional development. In the October 1993 remand, the Board asked the RO to develop the issues of whether there was new and material evidence to reopen a claim for service connection for schizophrenia and entitlement to a total rating for compensation purposes based on unemployability. The veteran did not pursue the application to reopen the claim for service connection for schizophrenia and the issue of entitlement to a total rating for compensation purposes based on unemployability is moot in view of the following decision by the Board in regard to the issue of entitlement to an increased evaluation for PTSD. VAOPGCPREC 6-99. Hence, the issues for appellate consideration are only those listed on the first page of this decision. FINDINGS OF FACT 1. The veteran has not submitted competent (medical) evidence demonstrating the presence of chloracne. 2. The veteran's PTSD is manifested primarily by anxiety, irritability, partial insight, and disturbing thoughts of experiences in Vietnam, and occasional anger, rage, and nightmares; symptoms that produce total social and occupational impairment, and that render him demonstrably unable to obtain or retain substantially gainful employment. CONCLUSIONS OF LAW 1. The claim for service connection for chloracne is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 2. The criteria for a schedular 100 percent rating for PTSD are met. 38 U.S.C.A. §§ 1155, 5107(b) (West 1991); 38 C.F.R. §§ 4.7, 4.132, Code 9411, effective prior to November 7, 1996, and 4.130, Code 9411, effective as of November 7, 1996. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Service Connection for Chloracne The threshold question to be answered in this case is whether the veteran has presented evidence of a well-grounded claim for service connection for chloracne; that is, evidence which shows that his claim is plausible, meritorious on its own, or capable of substantiation. 38 U.S.C.A. § 5107(a) (West 1991); Murphy v. Derwinski, 1 Vet. App. 78 (1990). If he has not presented such a claim, his appeal must, as a matter of law, be denied, and there is no duty on the VA to assist him further in the development of the claim. Murphy at 81. 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") has also stated that a claim must be accompanied by supporting evidence; an allegation is not enough. Tirpak v. Derwinski, 2 Vet. App. 609 (1992). In a claim of service connection, this generally means that evidence must be presented which in some fashion links a current disability to a period of military service, or as secondary to a disability which has already been service-connected. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. §§ 3.303, 3.310 (1999); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). "In order for a claim to be well-grounded, there must be competent evidence of current disability (a medical diagnosis) ...; of incurrence or aggravation of a disease or injury in service (lay or medical testimony), ...; and of a nexus between the inservice injury or disease and the current disability (medical evidence)." Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may be granted for a disease based on exposure to agent orange when there is medical evidence linking it to such incident. Combee v. Brown, F. 3d 1039 (Fed. Cir. 1994). 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 U.S.C.A. § 1116 (West 1991 & Supp. 1999) and 38 C.F.R. § 3.307(a)(6) (1999) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption of 38 C.F.R. § 3.307(d) (1999) are also satisfied: Chloracne or other acneform disease consistent with chloracne; Hodgkin's disease; Non- Hodgkin's lymphoma; acute and subacute peripheral neuropathy; porphyria cutanea tarda; prostate cancer; multiple myeloma; respiratory cancers (cancers of the lung, bronchus, larynx or trachea); and soft-tissue sarcoma. 38 C.F.R. § 3.309(e) (1999). The diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne, PCT, and acute and subacute peripheral neuropathy shall have become manifest to a degree of 10 percent or more within one year, and respiratory cancers within 30 years, after the last date on which the veteran was exposed to an herbicide agent during active military, naval or air service. 38 U.S.C.A. §§ 1113, 1116 (West 1991 & Supp. 1999); 38 C.F.R. § 3.307(a)(6)(ii). The service and post-service medical records do not show the presence of chloracne. A claim for service connection for a disability is not well grounded where there is no evidence of current disability. Caluza, 7 Vet. App. 498. The Board recognizes that the veteran served in Vietnam and that agent orange was used in this area during the time of this service, but there is no medical evidence of record demonstrating the presence of chloracne. While the veteran believes that he has this condition, his lay statements are not sufficient to demonstrate the presence of a medical condition. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). In this case, there is no competent (medical) evidence of chloracne. Hence, the claim for service connection for this condition is not plausible, and it is denied as not well grounded. II. Increased Evaluation for PTSD A. Factual Background An October 1986 Board decision granted service connection for PTSD. A January 1987 RO rating decision implemented the Board's decision and assigned a 30 percent rating for PTSD, effective from November 1983. March 1990 and May 1991 Board decisions denied an increased rating for PTSD (rated 30 percent). The 30 percent rating for the PTSD remained unchanged until a February 1995 RO rating decision increased it to 50 percent, effective from September 1991. VA and private medical reports show that the veteran was treated and evaluated for psychiatric problems in the 1990's. The more salient medical reports with regard to his claim for an increased evaluation for PTSD are discussed in the following paragraphs. A July 1991 VA report from a social worker notes that the veteran had PTSD symptoms with disturbed thoughts and behavioral processes that resulted in profound retreat from mature behavior in the community, and that he was demonstrably unable to obtain or retain employment. The social worker opined that the veteran was permanently disabled due to PTSD. An August 1991 Vet Center report from a social worker notes that the veteran had been seen for individual and group counseling for psychiatric problems since June 1985. The veteran's symptoms included disturbed thought processes, most notably, paranoia; and immature thought processes evidence by poor insight and inability to exercise good judgment. It was noted that the veteran's life had been demonstrably adversely affected by his Vietnam combat experience. The social worker opined that the severity and persistence of the veteran's symptoms prevented him from either obtaining or retaining employment. A VA memorandum from a counseling psychologist dated in November 1991 notes that the veteran had been evaluated for VA vocational rehabilitation and found not to be reasonably feasible for achieving a vocational goal. It was noted that the veteran had PTSD, a service-connected disability, and schizophrenia, a non-service-connected disability. The counselor opined that the veteran's psychiatric problems prevented him for completing a training program or maintaining himself in any sort of employment. A VA report dated in January 1992 from a vocational specialist notes that the veteran was self-employed part time. It was noted that he had one year of college and that he was working in a special project with the VA Medical Administration Service. It was noted that he attended the program daily and worked steadily 4 hours each day. He functioned easily with only a suggestion as to what was expected of him and he could be depended upon to complete tasks in an efficient manner. It was noted that the special project was completed and that the veteran was not interested in attending another project. The veteran underwent a VA psychiatric examination in February 1992. It was noted that he was then divorced and living alone in a small house where he had been for the past 9 years. He had been unemployed for about the last 5.5 years and he reported that he could not work because of psychiatric problems. He was angry, irritable, anxious, and depressed. The diagnosis was PTSD. A statement from a service comrade and current acquaintance of the veteran dated in March 1992 is to the effect that the veteran was excellent soldier in service who never made mistakes. The signatory also noted that he met the veteran in 1971 after separation from service and that the veteran was unable to order dinner and obviously had significant mental problems. Statements from relatives of the veteran received in the 1990's are to the effect that the veteran had psychiatric problems after service. A summary of the veteran's VA hospitalization in July 1992 shows an Axis I diagnosis of schizoaffective disorder. The Axis V diagnosis was 50. The veteran underwent psychological evaluation at a VA medical facility in November 1992. The impressions were schizophrenia, paranoid, chronic; and PTSD. The veteran was evaluated by the Social Work Service at a VA medical facility in December 1993. The social worker opined that the veteran was at least moderately to severely disabled socially, and totally disabled industrially due to his PTSD. On an application for increased compensation based on unemployability dated in February 1994, the veteran reported that he last worked in 1986, and that he had become too disabled to work on July 1, 1986. The veteran underwent VA psychiatric evaluation in April 1994 by 2 psychiatrists. He gave a history of various stressors while in Vietnam and reported that he had last worked about 7 years ago. He was agitated and appeared to be in some distress. He was belligerent at times. He was alert and oriented times four. Affect was full in range and somewhat labile ranging from hostile to smiling. He described his mood as "okay". Thoughts were remarkable for some occasional mild looseness of association but overall were logical, linear, and goal directed, and he did not indicate any current level of delusional thinking other than some mild grandiose material in his past history. He denied any current homicidal or suicidal ideation and current auditory hallucinations. The examiners concluded that the veteran's primary disability was paranoid schizophrenia or schizoaffective disorder, but that he met some of the criteria of PTSD. The Axis I diagnoses were schizoaffective disorder, PTSD, and polysubstance abuse. The Axis V GAF (global assessment of functioning) was 50. The veteran testified at a hearing in January 1995. His testimony was to the effect that he took medication for his psychiatric problems and that he had daily flashbacks of experiences in Vietnam. A letter dated in August 1995 from a VA counselor notes that the veteran's PTSD had deteriorated so significantly that he had become totally unemployable. It was noted that his symptoms included anger, rage, nightmares, intrusive imagery, flashbacks, and a significant inability to maintain social and working relationships. The veteran underwent a VA psychiatric examination in April 1996. It was noted that he was living alone in a part of his mother's house and that he had not worked for the past 9 years. His mood was anxious, insecure, defensive, and irritable. He did not report any gross symptoms of schizophrenia. He reported intrusive thoughts, distressing thoughts, and memories of traumatic events in Vietnam. He stated that he avoided upsetting reminders of war experiences and reported that he had exaggerated startle responses, sleep difficulties, nightmares of combat, irritability, hypervigilance, and social withdrawal. The diagnoses were PTSD, and history of schizoaffective disorder. On an application for increased compensation based on unemployability dated in August 1996, the veteran reported that he had last worked full time in 1986. He reported employment as a truck driver for about 6 months in 1996 and that the most he had earned at this work was $500. per month. The veteran testified at a hearing in December 1996. His testimony was to the effect that he had last worked in June 1996 and that he had worsening PTSD symptoms. The veteran underwent a VA psychiatric examination in July 1997. He reported having had numerous jobs and periods of hospitalization for treatment of psychiatric problems since separation from service. He reported receiving disability benefits from the SSA (Social Security Administration). It was noted that he lived with his mother. His mood was euthymic and his affect was slightly constricted, but appropriate. Thought processes were linear, logical, and goal directed. There was no evidence of loose associations, tangentially, circumstantiality or flight of ideas. He reported occasional disturbing thoughts of committing violent acts, but these were not related to Vietnam in content. He reported no flashbacks in 12 years. The impressions were PTSD, and schizoaffective disorder by history. The veteran underwent a VA psychiatric examination in April 1999. It was noted that he was divorced and living with his mother. He reported doing odd jobs for something to do and that he was currently receiving SSA disability benefits. His dress, grooming, and hygiene were adequate. He was alert and oriented. His behavior was appropriate and cooperative. His mood was anxious, defensive, and irritable. He appeared to be tense and restless overtly and he had sweaty hands. Eye contact was fair. Affect was appropriate and normal in range. The Axis I diagnoses were PTSD; and schizoaffective disorder in remission. The GAF was 50. B. Legal Analysis The veteran's claim for an increased evaluation for PTSD is well grounded, meaning it is plausible. The Board finds that all relevant evidence has been obtained with regard to the claim and that no further assistance to the appellant is required to comply with VA's duty to assist him. 38 U.S.C.A. § 5107(a) (West 1991). In general, disability evaluations are assigned by applying a schedule of ratings (rating schedule) which represent, as far as can practicably be determined, the average impairment of earning capacity. 38 U.S.C.A. § 1155. Although the regulations require that, in evaluating a given disability, that disability be viewed in relation to its whole recorded history, 38 C.F.R. § 4.41, where entitlement to compensation has already been established, and an increase in the disability rating is at issue, it is the present level of disability which is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Also, 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. A 50 percent rating for PTSD requires that the ability to establish or maintain effective or favorable relationships with people be considerably impaired and that reliability, flexibility, and efficiency levels be so reduced by reason of psychoneurotic symptoms as to result in considerable industrial impairment. A 70 percent evaluation is warranted where the ability to establish or maintain effective or favorable relationships with people is severely impaired and the psychoneurotic symptoms are of such severity and persistence that there is severe impairment in the ability to obtain and retain employment. A 100 percent evaluation requires that attitudes of all contacts except the most intimate be so adversely affected as to result in virtual isolation in the community and there be totally incapacitating psychoneurotic symptoms bordering on gross repudiation of reality with disturbed thought or behavioral processes (such as fantasy, confusion, panic, and explosions of aggressive energy) associated with almost all daily activities resulting in a profound retreat from mature behavior. The veteran must be demonstrably unable to obtain or retain employment. 38 C.F.R. § 4.132, diagnostic code 9411, effective prior to Nov. 7, 1996. The regulations for the evaluation of mental disorders were revised, effective November 7, 1996. 61 Fed. Reg. 52695- 52702 (Oct. 8, 1996). When regulations are changed during the course of the veteran's appeal, the criteria that is to the advantage of the veteran should be applied. Karnas v. Derwinski, 1 Vet. App. 308 (1991). Under the revised general rating formula for the evaluation of mental disorders, 38 C.F.R. § 4.130, Code 9411, effective November 7, 1996, PTSD will be rated as follows: 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.-100 percent 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 that 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 worklike setting); inability to establish and maintain effective relationships.-70 percent 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. - 50 percent A longitudinal review of the evidence shows that the veteran has been essentially unemployed since around 1986 due to psychiatric problems. While most of the medical evidence (as distinguished from the reports of various counselors and social workers who do not mention or otherwise indicate awareness of the psychosis) indicates that symptoms due to schizoaffective disorder, a non-service-connected psychiatric disability, have predominated in his work difficulty, the reports of his latest VA psychiatric examinations, beginning in 1996, only note this disorder by history or indicate it is in remission. Under the circumstances, the Board finds that the veteran's current psychiatric symptoms cannot be disassociated from his service-connected PTSD, and all of these symptoms must be considered in the evaluation of this disorder. 38 C.F.R. § 4.14 (1999). The evidence reveals that the veteran has a GAF of 50 or psychiatric symptoms that produce serious impairment in social or occupational functioning under the provisions of the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders, Third or Fourth Edition (DSM III or DSM IV) that is to be used in the evaluation of his PTSD. The Court defines GAF and cites to the DSM-IV in Richard v. Brown, 9 Vet. App. 93, 97 (1997). 38 C.F.R. § 4.125, effective prior to or as of November 7, 1996. While the evidence indicates that the veteran was able to successfully perform part-time work in a VA program in 1992 and does not show many of the psychiatric symptoms noted in the above-noted criteria for establishing entitlement to an evaluation in excess of 50 percent for PTSD, effective prior to or as of November 7, 1996, the Board finds that the evidence is essentially in equipoise as to whether or not the veteran's psychiatric symptoms produce total industrial impairment. Under the circumstances, the Board has resolved this matter in favor of the veteran. 38 U.S.C.A. § 5107(b) (West 1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). After consideration of all the evidence, the Board finds that the veteran's PTSD is manifested primarily by anxiety, irritability, partial insight, and disturbing thoughts of experiences in Vietnam, and occasional anger, rage, and nightmares; symptoms that produce total social and occupational impairment, and that render him demonstrably unable to obtain or retain substantially gainful employment. In Johnson v. Brown, 7 Vet. App. 95, 97 (1994), the Court upheld the VA Secretary's interpretation that the criteria for a 100 percent rating "are each independent bases for granting a 100 percent rating". Accordingly, the Board finds that a total schedular rating for the veteran's PTSD is warranted under the criteria of diagnostic code 9411, effective prior to or as of November 7, 1996. ORDER The claim for service connection for chloracne is denied as not well grounded. A 100 percent evaluation for PTSD is granted, subject to the regulations applicable to the payment of monetary benefits. J. E. Day Member, Board of Veterans' Appeals