Citation Nr: 0001883 Decision Date: 01/24/00 Archive Date: 02/02/00 DOCKET NO. 97-12 604 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Entitlement to secondary service connection for left hip replacement. 2. Entitlement to secondary service connection for alcoholism. 3. Entitlement to an increased evaluation for post-traumatic stress disorder (PTSD), currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: New York Division of Veterans' Affairs ATTORNEY FOR THE BOARD Grace Jivens-McRae, Counsel INTRODUCTION The veteran served on active duty from January 1968 to December 1969. This appeal arises from a February 1996 rating decision of the Buffalo, New York, Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for a left hip replacement secondary to the veteran's service-connected shrapnel of the left thigh; found that there was no clear and unmistakable error in the February 1992 rating decision which denied service connection for aseptic necrosis of the left femoral head; denied an increased evaluation for PTSD; and found that the claim for service connection for alcoholism secondary to the veteran's service-connected PTSD, was not well-grounded. In the veteran's February 1997 substantive appeal (SA), he withdrew his claim asserting clear and unmistakable error in a February 1992 rating decision denying service connection for aseptic necrosis. Therefore, that issue is not before the Board of Veterans' Appeals (Board) and is not reflected on the title page. Although the RO apparently denied service connection for aseptic necrosis of the left femoral head in a February 1992 rating decision, the notice letter to the veteran dated later that month did not mention the denial. Accordingly, the Board is considering the current claim for service connection for left hip replacement on a de novo basis, rather than as an attempt to reopen the claim by the submission of new and material evidence. FINDINGS OF FACT 1. The veteran's claim that he had a left hip replacement as a result of his service-connected residuals of shrapnel wounds of the left thigh is not accompanied by medical evidence to support that allegation. 2. The claim for service connection for a left hip replacement secondary to the veteran's service-connected residuals of shrapnel wounds of the left thigh is not plausible. 3. The veteran filed a claim for service connection for alcoholism secondary to his service-connected PTSD after October 31, 1990. 4. The veteran's PTSD is productive of no more than mild disablement. CONCLUSIONS OF LAW 1. The veteran's claim for service connection for a left hip replacement secondary to his service-connected residuals of shrapnel wounds of the left thigh is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 2. Service connection for alcohol abuse secondary to the veteran's service-connected PTSD is not warranted. 38 C.F.R. § 3.301(a) (1999); VAOPGCPREC 2-97. 3. The criteria for an evaluation in excess of 10 percent for service-connected PTSD are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.129, 4.130 Diagnostic Code 9411 (before and after November 1997). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Factual Background The veteran served on active duty from January 1968 to December 1969. He sustained booby-trap injuries in October 1968, specifically to the left knee, left thigh and left transverse colon. By rating decision of March 1970, service connection was granted for, amongst other disabilities, sequela laceration of the left knee and thigh. A noncompensable evaluation was assigned. The veteran underwent VA examination in July 1984. At the time of the examination, it was indicated that the veteran suffered a left thigh laceration as a result of a shell fragment wound suffered in service. He related that the scars of the left thigh did not cause him any symptoms. Physical examination of the left thigh revealed two scars each measuring about the size of a silver dollar on the lateral upper aspect of the left thigh. They were well- healed and non-tender without any accompanying muscle defect. No functional impairment was noted. The pertinent diagnosis was scars of the left thigh, asymptomatic. By rating decision of August 1987, service connection was granted for PTSD. A 10 percent evaluation was granted, effective February 1987. The 10 percent evaluation remains in effect to this date. In July 1991, the veteran was seen in the VA orthopedic clinic. He complained of left hip discomfort. He had a private x-ray which showed some shrapnel present. Clinical examination revealed the veteran walked with a cane in his left hand instead of his right. He had very definite loss of motion in his left hip in all planes, particularly rotation and abduction. X-rays showed some small fragments of shrapnel about the joint but had absolutely not involved the joint itself. In the femoral head there was an area of aseptic necrosis. In September 1991, the veteran underwent VA examination. The veteran gave a history of sustaining shrapnel wounds in the left thigh while in Vietnam. Three to four years prior to the examination, he began to notice some pain and discomfort in the left hip which did not become severe until the spring of 1991. He was diagnosed by VA as having aseptic necrosis of the left femoral head. X-rays were showing a partial area of necrosis in the head and the soft tissue surrounding, but not involving the hip joint proper were small non-reactive imbedded shrapnel fragments. The veteran was on underarm crutches which he placed on the floor with the left foot with no weight bearing. Laterally, in the mid thigh area was a flat smooth irregular circular shaped scar measuring 1 inch in diameter. There was a similar scar just proximal to the left hip greater trochanter confined to the skin which measured 1/2 inch across the greater diameter. The scar was not tender and there was no significant involvement of the underlying tissues. There was no actual limitation of movement of the left hip, but all hip movements were increasingly painful as they progressed. The pertinent diagnosis was residuals of old shrapnel wounds in the left lateral hip and lateral left thigh area with scars with retained soft tissue fragments. In October 1991, a letter from the veteran's mother was received by VA on behalf of the veteran's claim. She stated, in pertinent part, that the veteran was hurt in service and had retained shrapnel in his system. In November 1991, the veteran underwent VA examination. Medical history noted that the veteran had shrapnel in his left thigh which was removed. His most recent problem was complaints of hip pain. Diagnosis by VA examiner showed septic necrosis of the left femoral head. The rest of his joints were normal. The veteran had a few soft tissue densities consistent with progressive increase in pain in the left hip. He walked with a cane. Physical examination showed healed scars where he had shrapnel removed from the left lateral thigh. He had pain on range of motion in the hip in all directions. It was noted that the veteran walked with a definite limp and used crutches on the left side. The diagnostic impression was history of possible septic necrosis of the left hip. The examiner stated that in his limited expertise of the hip, the question was whether or not the hip disability was related to the veteran's shrapnel wounds. In July 1994, the veteran was hospitalized at Robert Packer Hospital for a painful left hip. It was noted that the veteran sustained an injury to the left hip during the Vietnam War when he was hit with shrapnel. He reported discomfort in the hip since that time but the pain became especially severe in 1991. Preadmission x-rays revealed avascular necrosis of the left hip. He was scheduled for a left total hip arthroplasty. Physical examination of the left hip revealed flexion of 90 degrees, flexion contracture of 30 degrees, and external rotation of 10 degrees. The pertinent discharge diagnosis was aseptic necrosis of the left hip with secondary osteoarthritis of the left hip. In July 1995, the veteran was seen in the Guthrie orthopedic clinic. It was noted that he had undergone a left total arthroplasty for treatment for aseptic necrosis and secondary osteoarthritis. He reported pain in the left hip and back. Physical examination revealed he walked without a limp. Range of motion of the left hip revealed flexion of 100 degrees, flexion contracture of 0 degrees, external rotation of 40 degrees, internal rotation of 20 degrees, abduction of 40 degrees, and adduction of 30 degrees. X-rays of the hip showed no evidence of loosening. Good position of the acetabular and femoral components was noted. The examiner stated that he suspected that the veteran's symptoms may be a sciatic-type discomfort. He also had elements of what appeared to be a trochanter bursitis. In December 1995, VA received a Readjustment Counseling Service Contract Initial Assessment Form, dated in March 1995. The veteran was noted to have current symptoms at that time of recurrent nightmares, intrusive thoughts and recollections, feelings as if the event was reoccurring, numbing of responsiveness, reduced interest in activities of former interest, isolation and distancing from family or peers, emotional numbness, hyperalertness and startle response, sleep disturbance, memory impairment and trouble concentrating, avoidance of situations, depression, past substance abuse, anger and rage, and low self esteem. The counselor noted the veteran's affect was constricted and insight was fair. Motivation was good, behavior was cooperative, his mood was agitated and he was depressed. The counselor's assessment revealed that the veteran had lived a withdrawn life, sometimes in the extreme in relation to intrusive symptoms of PTSD. A treatment plan was established. In February 1999, the veteran underwent a VA psychiatric examination. When asked to describe the nature of his problems, the veteran was fairly vague and had to be directed as to what he called PTSD. He stated that sometimes he had flashbacks from Vietnam when he heard a helicopter. When he had flashbacks, he felt frightened and nervous. At that time, he sometimes broke out in sweats. He related dreaming about Vietnam twice a week and he was awakened by the dreams. He denied psychiatric treatments or hospitalizations in the past. He reported that other than periods of flashbacks and sleep disturbances, there was "nothing else I can think of that is a problem." Mental status examination found the veteran to be pleasant, alert, calm and cooperative with clear sensorium and minimal evidence of anxiety while talking about Vietnam. He gave no history of panic episodes and denied experiences of auditory or visual hallucinations. He manifested no ideas of reference or delusional thinking. His behavior during the interview was appropriate and he ambulated with a cane. He denied any periods of suicidal or homicidal thoughts or anger. He was able to take care of his trailer and his personal needs. He stated that he had a girlfriend. His recent and remote memory was intact with good immediate recall. He did not present with any obsessive features. His speech was relevant, coherent and appropriate, as well as logical. Except for sleep disturbance due to Vietnam dreams, there was no evidence of vegetative signs of depression or mood disorder. The examiner stated that there did not appear to be a need for specific psychological testing. The diagnosis was PTSD, chronic. His global assessment of functioning (GAF) was 70 at the time of the examination and in the past year it was also 70. Analysis Secondary Service Connection for left hip replacement The threshold question as to the issue of entitlement to service connection for a left hip replacement secondary to the veteran's service-connected residuals of shrapnel wounds of the left thigh is whether the veteran has presented a well-grounded claim; that is, one that is plausible. If not, the appeal must fail and there is no duty to assist him further in the development of his claim as additional development would be futile. 38 U.S.C.A. § 5107(a) (West 1991); Murphy v. Derwinski, 1 Vet.App. 78 (1990); Tirpak v. Derwinski, 2 Vet.App. 609 (1992). The Board finds that the veteran's claim is not well grounded. Disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered part of the original condition. 38 C.F.R. § 3.310(a). To sustain a well-grounded claim, the veteran must provide evidence demonstrating that the claim is plausible; mere allegation is insufficient. Tirpak v. Derwinski, 2 Vet.App. 609 (1992). A well-grounded claim is 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(a). Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). To be well grounded, a claim must be accompanied by supportive evidence and such evidence must justify a belief by a fair and impartial individual that the claim is plausible. Where the determinative issue involves either medical etiology or medical diagnosis, competent medical evidence is required to fulfill the well-grounded claim requirement of 38 U.S.C.A. § 5107(a). Lathan v. Brown, 7 Vet.App. 359 (1995). When a veteran contends that his service-connected disability had caused a new disability, he must submit competent medical evidence of a causal relationship between the two disabilities to establish a well-grounded claim. Jones (Wayne L.) v. Brown, 7 Vet.App. 134 (1994). Service connection is in effect for sequela laceration of the left thigh and knee, evaluated as noncompensable, since December 1969. In this case, the veteran claims that he had a left hip replacement, determined necessary due to his service- connected residuals of shell fragment wounds to his left thigh. The medical records associated with the claims folder show the veteran complained of left hip and thigh complaints, more severely beginning in 1991. However, there is no medical evidence of record that establishes a causal relationship between the hip replacement necessitated by necrosis of the left hip and the veteran's service-connected shell fragment wounds of the left thigh disability. There is only the veteran's belief that his left hip replacement was necessitated because of shell fragment wounds of the left thigh. In a July 1991 VA orthopedic consultation, the examiner noted that x-rays showed some small shrapnel fragments about the joint but absolutely not involving the joint itself. The examiner also indicated that the aseptic necrosis was in the femoral head. In November 1991, a VA examiner indicated that in his limited expertise with the hip, he was unable to tell if the necrosis of the left hip was related to the shrapnel wounds of the left thigh, especially at such a late date. He indicated that he was awaiting a report and recommendations from another VA examiner. The other VA examiner, who examined the veteran in September 1991, indicated that there was a partial area of necrosis in the femoral head and in the surrounding soft tissue, but the necrosis was not involving the hip joint proper where there was found small, non-reactive imbedded shrapnel fragments. This examiner indicated that there was no actual limitation of movement of the left hip, although all hip movements were increasingly painful. He also never attributed the necessity of a hip replacement to inservice shrapnel wounds of the left thigh. The only person attributing the left hip replacement to shrapnel wounds sustained in service is the veteran. The United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (Court) has held that lay persons cannot provide testimony when an expert opinion is required. Espiritu v. Derwinski, 2 Vet.App. 492 (1992) (also See Moray v. Brown, 5 Vet.App. 21 (1993) wherein the Court commented that lay assertions of medical causation will not suffice initially to establish a well-grounded claim). The veteran has not met his initial burden under 38 U.S.C.A. § 5107(a) as his belief alone constitutes no more than mere allegation. Based on the foregoing, there has been no medical evidence that clearly shows that there is a causal relationship between the veteran's left hip replacement and his service- connected residuals of shrapnel wounds of the left thigh disability, sufficient to establish a well-grounded claim. Therefore, service connection for a left hip replacement secondary to the veteran's service-connected residuals of shell fragment wounds of the left thigh is not warranted. Secondary Service Connection for Alcoholism The veteran claims that service connection is warranted for alcohol dependence secondary to his service-connected PTSD. Under applicable criteria, service connection will be granted for disability resulting from personal injury suffered or disease contracted in the line of duty not the result of the veteran's own willful misconduct. 38 U.S.C.A. § 1110. The simple drinking of alcoholic beverage is not of itself willful misconduct. The deliberate drinking of a known poisonous substance or under conditions which would raise a presumption to that effect will be considered willful misconduct. If, in the drinking of a beverage to enjoy its intoxicating effects, intoxication results proximately and immediately in disability or death, the disability or death will be considered the result of the person's willful misconduct. 38 C.F.R. § 3.301 (c)(2). Disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. In this claim, the veteran believes that service connection is warranted for alcohol dependence. The veteran's medical records reveal the veteran had a drinking problem and had been counseled to quit drinking. In February 1995, he was seen on an outpatient treatment basis by VA. At that time, he stated that he had been in remission from alcohol since March 1991. The Board notes that for claims filed after October 31, 1990, as in this case, service connection may not be granted for disability or death resulting from abuse of alcohol or drugs. 38 C.F.R. § 3.301(a). Although the veteran claims this disability is secondary to his service-connected PTSD, VAOPGCPREC 2-97, indicates, in pertinent part, that the authority to compensate under the regulation for conditions secondarily service connected derives from the U.S. Code sections granting service connection on a direct basis and there is no authority to grant secondary service connection apart from the statute. Section 8052 of the Omnibus Budget Reconciliation Act of 1990 (OBRA 1990) provides that in claims filed after October 31, 1990, disability resulting from a veteran's own alcohol or drug abuse cannot be service connected. VAOPGCPREC 11-96. "Whether service connection for a substance-abuse disability is claimed under section 3.310(a) on the basis that a service-connected disease or injury caused the substance-abuse disability or on the basis that a service-connected disease or injury aggravated the substance-abuse disability, section 8052 prohibits the payment of compensation for the substance-abuse disability." VAOPGCPREC 2-97. Where the law and not the evidence is dispositive, the claim should be denied or the appeal to the Board terminated because of the absence of legal merit or the lack of entitlement under the law. Sabonis v. Brown, 6 Vet.App. 426, 430 (1994). Thus, the law and regulations preclude a grant of service connection on a secondary basis for alcohol dependence. Increased Evaluation for PTSD The veteran and his representative assert that the veteran's PTSD is more severe than the current 10 percent evaluation reflects. At the outset, it is important to determine if the veteran has established a well-grounded claim for an increased evaluation for PTSD, that is, one that is plausible. 38 U.S.C.A. § 5107(a) (West 1991). A claim for an increased evaluation is a well-grounded claim if the claimant asserts that a condition for which service connection has been granted has worsened. Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). In this case, the veteran has asserted that his service-connected PTSD is more severe than currently evaluated. Therefore, he has established a well-grounded claim. Having satisfied this burden, VA has a duty to assist in the development of facts pertinent to this claim. The Board is satisfied that all relevant facts in this case have been properly developed. The veteran was seen in the VA outpatient treatment clinic in February 1995. In March 1995, he was seen at the Readjustment Counseling Service. Finally, he underwent VA psychiatric examination in February 1999. The record is complete, there is no further duty to assist in the development of this claim as mandated by 38 U.S.C.A. § 5107(a). Some of the basic facts are not in dispute. Service connection is in effect for PTSD rated under the provisions of Diagnostic Code 9411. VA Schedule for Rating Disabilities, 38 C.F.R. Part 4. Service connection was established for PTSD by rating decision of August 1987. A 10 percent evaluation was assigned, effective February 1987. The 10 percent evaluation is still in effect to this date. Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Separate diagnostic codes identify the various disabilities. 38 C.F.R. § 4.1 requires that each disability be viewed in relation to its history and that there be emphasis upon the limitation of activity imposed by the disabling condition. 38 C.F.R. § 4.2 requires that medical reports be interpreted in light of the whole recorded history, and that each disability must be considered from the point of view of the veteran working or seeking work. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter under consideration, the benefit of the doubt in resolving the issue shall be given to the claimant. 38 U.S.C.A. § 5107 (West 1991). Furthermore, 38 C.F.R. § 4.7 provides that, where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. The requirements for evaluation of the complete medical history of the claimant's condition operate to protect claimants against adverse decisions based on a single, incomplete or inaccurate report and to enable VA to make a more precise evaluation of the level of the disability and of any changes in the condition. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Moreover, VA has a duty to acknowledge and consider all regulations which are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Prior to November 7, 1996, PTSD was evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.132, Diagnostic Code 9411. Primarily, it was rated on the basis of the degree to which psychoneurotic symptoms impaired the veteran's ability to establish or maintain effective relationships with people, and the degree to which they impaired his industrial ability by affecting his reliability, flexibility and efficiency. If there was no industrial impairment, a zero percent rating was warranted; "mild" social and industrial impairment warranted a 10 percent rating; and "definite" industrial impairment warranted a 30 percent rating. Effective November 7, 1996, PTSD is to be rated under new criteria to be codified at 38 C.F.R. § 4.130, Diagnostic Code 9411. See Schedule for Rating Disabilities; Mental Disorders, 61 Fed. Reg. 52,695 (1996). Under the new criteria, a zero percent rating is warranted where PTSD has been diagnosed, but the symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous medication. A 10 percent rating is warranted where the disorder is manifested by occupational and social impairment due to mild or transient symptoms which decrease work efficiency and the ability to perform occupational tasks only during periods of significant stress, or where the symptoms are controlled by continuous medication. A 30 percent rating is warranted where the disorder is manifested by occupational and social impairment with an occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as depressed mood; anxiety; suspiciousness; panic attacks (weekly or less often); chronic sleep impairment; and mild memory loss (such as forgetting names, directions, and recent events). The Court has held that where the law 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 appellant will apply unless Congress provides otherwise. Karnas v. Derwinski, 1 Vet. App. 308 (1990). The veteran's claim for PTSD was initially filed in June 1995. The law evaluating mental disorders was changed in November 1996. Therefore, it is necessary that the Board evaluate the veteran's claim under both the old and new criteria. It is important to note that the RO has reviewed the claim under both criteria and the veteran has been given adequate notice and the opportunity to submit evidence or argument on the question. The veteran has also been provided a Statement of the Case (SOC) and Supplemental Statement of the Case (SSOC) which provided the veteran with the regulatory requirements. The Board finds that there is no prejudice to the veteran in the final adjudication of this claim. Bernard v. Brown, 4 Vet. App. 384, 393 (1993). In this claim, the veteran's PTSD has been shown to be no more than mild in degree. He complains of nightmares, episodic rage outbursts and anger management problems. Since 1995, he has had no homicidal or suicidal ideation, no psychotic symptoms, and no psychiatric hospitalization. He was seen on one occasion on a private basis, and most recently during a VA examination in February 1999, he reported that other than periodic flashbacks and sleep disturbances, there was "nothing else I can think of that is a problem." He related that he had no psychiatric treatment or hospitalizations in the past and could think of no occasion where he felt the need for either. There were no mood disorders and the examiner found no reason to provide the veteran with psychological testing. Finally, his GAF score was noted to be 70 in the past year and 70 at the time of the examination. This level of functioning on the GAF scale relates to some mild symptoms, or some difficulty in social, occupational, or school functioning, but generally functioning pretty well, and having some meaningful relationships. This is borne out by the fact that he worked for his brother for six years prior to the failure of his brother's business and he presently relates that he has a girlfriend. The most recent examiner attributes the veteran's stressors as related to his fixed, limited income, and the veteran has related his employment problems have been mostly related to his hip replacement and not any psychiatric problems that he might have. Based on the foregoing, the veteran's symptomatology is not reflective of findings warranting an evaluation higher than his current 10 percent, which indicates that his PTSD is no more than mild in degree. Therefore, an evaluation in excess of 10 percent for the veteran's PTSD is not warranted. ORDER Secondary service connection for left hip replacement is denied. Secondary service connection for alcoholism is denied. Entitlement to an increased evaluation for PTSD is denied. BARBARA B. COPELAND Member, Board of Veterans' Appeals