Citation Nr: 0002610 Decision Date: 02/02/00 Archive Date: 02/10/00 DOCKET NO. 96-05 310A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for a low back disorder. 2. Entitlement to service connection for rhinitis, including as a result of a tonsillectomy. 3. Entitlement to an increased rating for a chronic psychoneurotic anxiety reaction, currently evaluated as 30 percent disabling. 4. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. L. Wright, Associate Counsel INTRODUCTION The veteran served on active duty from April 1970 to April 1972. This matter comes before the Board of Veterans' Appeals (Board) from several rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. Entitlement to service connection for disc space narrowing at L5-S1 was denied by rating decision of June 1999. Entitlement to service connection for rhinitis was denied by rating decision of September 1995. Entitlement to an increased rating for the veteran's nervous disorder was also denied by rating decision of September 1995. Entitlement to a total disability evaluation based on individual unemployability was denied by rating decision of June 1999. FINDINGS OF FACT 1. There is no competent medical evidence linking the veteran's back disability to his period of active service. 2. There is no competent medical evidence linking the veteran's allergic rhinitis, in any way, to his period of active service. 3. The veteran's anxiety disorder is productive of not more than definite social and industrial impairment. 4. The veteran is not shown to be unable to obtain and sustain substantially gainful employment. CONCLUSION OF LAW 1. The veteran's claim of entitlement to service connection for a low back disorder is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 2. The veteran's claim of entitlement to service connection for allergic rhinitis is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 3. The schedular criteria for an increased rating in excess of 30 percent for the veteran's anxiety disorder have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.31, 4.132 (1996-1997) 4.130 (1999), Diagnostic Codes 9505 (1996) and 9400 (1999). 4. The criteria for a total disability rating based on individual unemployability due to service-connected disabilities have not been met. 38 U.S.C.A. § 5107 (West 1991); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18, 4.19 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Service Connection The veteran contends that he is entitled to service connection for a low back disorder and allergic rhinitis. Generally, in order to establish service connection for a claimed disability, the facts, as shown by the evidence, must demonstrate that a particular disease or injury resulting in current disability was incurred during active service or, if preexisting active service, was aggravated therein. 38 U.S.C.A. § 1110 (West 1991). In making a claim for service connection, however, the veteran has the initial burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. 38 U.S.C.A. § 5107(a). A well-grounded claim is "a plausible claim, one which is meritorious on its own or capable of substantiation." See Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). The veteran must satisfy three elements for his claim for service connection to be well grounded. First, there must be competent evidence of a current disability (a medical diagnosis). Second, there must be evidence of incurrence or aggravation of a disease or injury in service, as shown through lay or medical evidence. Lastly, there must be evidence of a nexus or relationship between the in-service injury or disease and the current disorder, as shown through medical evidence. Unless the claimant meets his burden of establishing a well-grounded claim, VA has no duty to assist the claimant in developing his claim. See Epps v. Gober, 126 F.3d 1464, 1467-1469 (1997). A. Low Back Pain The veteran's service medical records show that the veteran did report low back pain while in service. Specifically, as early as November 1970, the veteran complained of low back pain. In December 1971, the veteran was recommended to be cross-trained into a career field where he would not be required to actively use his back. Further, he was diagnosed with low back pain with unknown etiology in January 1972. A report made in February 1972 noted the veteran to have low back pain of one year's duration. In March 1972, the veteran was noted to have chronic back strain. The veteran underwent a VA examination in June 1972 and while he complained of low back pain, no orthopedic disease of the back was found. The veteran underwent a more recent VA examination in July 1995 where he was diagnosed with lumbar strain with associated muscle spasms. X-rays were normal at that time. Regarding other VA treatment, the Board notes that the veteran was found to have flank pain due to right ureteral stone during a VA hospitalization in 1981. Further VA outpatient treatment records also show treatment for low back problems. In January 1994, the veteran complained of low back pain although the x-rays were normal. He was diagnosed with chronic low back pain in March 1994. Records from June 1994 to June 1995 also describe the veteran's ongoing problems with low back pain. Similar findings were made in outpatient visits in November 1997 and December 1998, while x-rays taken in January 1999 showed minimal narrowing of L5- S1. Private medical records have also been considered in this matter. From June 1989 to June 1993, the veteran complained repeatedly of low back pain by a team of doctors and was diagnosed with back pain secondary to muscle spasms in April 1993. These physicians noted that the veteran reported being told his back pain was secondary to kidney stones, but the doctors merely described the veteran's ongoing back pain, they did not provide an opinion as to its etiology. The record also contains documentation that shows the veteran has been determined disabled by the Missouri Department of Social Services. And while the veteran was deemed disabled due to his back, the Department did not make any findings regarding the etiology of the veteran's low back disorder. As there is no medical evidence relating the veteran' low back pain to his period of service or a service connected disability, the Board must deny the claim as not well grounded. The veteran has provided statements as to his belief that his ongoing problems are related to service. However, the Board notes that where the issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. See Jones v. Brown, 7 Vet.App. 134, 137 (1994); Espiritu v. Derwinski, 2 Vet.App. 492, 494-95 (1991). Since the record does not indicate that the veteran possesses the medical training and expertise necessary to render a cause of his disability, his lay statements alone cannot serve as a sufficient predicate upon which to find his claim for service connection to be well grounded. See Heuer v. Brown, 7 Vet.App. 379, 384 (1995) (citing Grottveit v. Brown, 5 Vet.App. 91, 93 (1993)). B. Allergic Rhinitis In this matter, the veteran's service medical records are devoid of diagnosis of allergic rhinitis. These records do show that the veteran complained of sore throats and congestion in July 1970 and that he had an upper respiratory infection in March 1972. However, these records do not show the veteran to have ever been diagnosed with rhinitis while in service. Medical evidence covering the period since service shows that the veteran has sought treatment several times for rhinitis. He has not undergone a VA examination in this matter, the medical record consists of VA and private treatment records. The Board also notes that the veteran underwent a tonsillectomy during a VA hospitalization in October 1973. In June 1978, a VA doctor noted in the veteran's chart that the veteran had requested an opinion linking the veteran's sinus problems with his anxiety. The doctor thus provided the statement that a relationship can exist between sinus trouble and emotions. More recent outpatient treatment records from VA medical facilities note that the veteran was diagnosed with allergic rhinitis on at least three occasions from January 1994 to June 1995. These records do not provide an etiology of the rhinitis. Private medical records from June 1989 to February 1991 also show repeated diagnoses of allergic rhinitis with no provided opinion as to etiology. The Board here acknowledges that the veteran has submitted a VA opinion to the effect that sinus trouble may be linked to emotions. However, there is no opinion relating the veteran's disorder to either service or his service connected disability. The doctor does not, as necessary, provide a diagnosis of rhinitis that is related to either his anxiety disorder or his period of active service. Also, there is no evidence relating the rhinitis to a tonsillectomy. The veteran himself has stated that his rhinitis is, in some way, related to his period of service. However, as discussed above, he is a lay person and thus unable to provide a medical opinion of causation and nexus between the current disability and service. See Grottveit, 5 Vet.App. at 93. Therefore, his claim of entitlement to service connection for rhinitis must be denied as not well grounded. II. Increased Rating The veteran also asserts that his present disability evaluation does not adequately reflect the severity of his anxiety disorder. Specifically, he argues that his disorder is getting worse and thus warrants a higher evaluation than the 30 percent presently assigned. A veteran who submits a claim for benefits under laws administered by VA shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. See 38 U.S.C.A. § 5107(a) (West 1991). A mere allegation that a service-connected disability has become more severe is sufficient to establish a well-grounded claim for an increased rating. See Caffree v. Brown, 6 Vet. App. 377, 381 (1994); Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). Accordingly, the Board finds that the veteran's claim for an increased evaluation is well grounded. Once a veteran has presented a well-grounded claim, VA has a duty to assist him in developing facts that are pertinent to the claim. See 38 U.S.C.A. § 5107(a) (West 1991). The Board finds that all relevant facts have been properly developed, and that all evidence necessary for an equitable resolution of the issues on appeal has been obtained. Therefore, no further assistance to the veteran with the development of the evidence is required. Disability ratings are determined by evaluating the extent to which the veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.312, 4.20, 4.114 (1999). Where entitlement to compensation has already been established and an increase in disability ratings is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Historically, service connection for this disability was assigned by rating decision dated September 1972. A 10 percent evaluation was assigned. That rating remained in effect until an increase by rating decision in January 1999. In January 1999, the evaluation was increased to 30 percent and the veteran's disability was restyled "chronic psychoneurotic reaction." The veteran currently asserts that this 30 percent evaluation does not adequately portray his present level of disability. The medical evidence here consists mainly of three VA examinations conducted from July 1995 to August 1999. In July 1995, the veteran was diagnosed with conversion disorder and no residual symptoms were in evidence. The examiner found the veteran to be pleasant, cooperative and responsive to questions in a logical and goal directed manner. He was alert and denied any delusions or hallucinations. He also denied any homicidal or suicidal ideation. His intelligence was estimated to be average and he was oriented to time, place and person. His memory was intact for recent and remote events and he had good insight. In light of the forgoing, the examiner opined that the veteran's conversion disorder was productive of "no incapacity at all." In November 1998, a VA examiner made similar findings as the results in 1995 and added that the veteran reported no obsessions or panic attacks. This examiner, however, found the veteran to have poor insight and motivation for treatment or any other type of rehabilitative effort. The examiner stated that the diagnosis of neurotic skeletal disorder continued to the present and that veteran's complaints were subjective with no noticeable impairment in motion seen. He was assigned a Global Assessment of Functioning Score of 50 indicating mostly social and occupational impairment. See Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, of the American Psychiatric Association (DSM-IV). See 38 C.F.R. § 4.130. Finally, on examination in August 1999, the veteran was well groomed and responded to questions in a cooperative, logical and goal directed manner. He was noted to be a bit argumentative about his case claiming that he was only being compensated for the psychological component of his disability and not the physiological part. He further claimed that his muscle spasms were physical and were the same as he experienced in service. The veteran denied depression, obsession or panic attacks although he did admit to some sleep impairment due to his back problem. Again, his intelligence was deemed about average and he was oriented to time, person and place. His memory and judgment were intact but his insight and motivation were poor. He was diagnosed with a neurotic skeletal disorder consistent with a chronic psychoneurotic anxiety reaction and assigned a GAF of 50. Effective November 7, 1996, the schedular criteria for evaluation of psychiatric disabilities were changed. Where a law or a regulation changes after a claim has been filed or reopened, but before the administrative judicial process has been concluded, the version most favorable to an appellant applies unless Congress provided otherwise or permitted the Secretary to do otherwise and the Secretary does so. Marcoux v. Brown, 9 Vet. App. 289 (1996); Bernard v. Brown, 4 Vet. App. 384 (1993); Karnas v. Brown, 1 Vet. App. 308 (1991). It is noted that the RO has evaluated this disability under both the third and fourth editions of the Diagnostic and Statistical Manual of Mental Disorders of the American Psychiatric Association, with notice to the veteran as to the new regulations. As noted, since the veteran's claim for an increased rating was pending when the regulations pertaining to psychiatric disabilities were revised, he is entitled to the version of the law most favorable to him. Under 38 C.F.R. § 4.126, when a single disability has been diagnosed both as a physical condition and as a mental disorder, the rating agency shall evaluate it using a diagnostic code that represents the more disabling aspect of the condition. The veteran has been evaluated under 38 C.F.R. § 4.132, Diagnostic Code 9505 (psychological factors affecting musculoskeletal condition), the former regulation, and 38 C.F.R. § 4.130, Diagnostic Code 9400 (generalized disorder), the revised regulation. These codes are based upon the nomenclature of the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, of the American Psychiatric Association, and require the application of the general rating formula for mental disorders. As to the reported symptomatology regarding the veteran's lumbar spine, there is no evidence that the injury during service had been of such severity that traction had been required, and early medical records did not show any objective signs of a lumbosacral disorder. Therefore, a rating of the anxiety disorder under 38 C.F.R. § 4.130, Diagnostic Code 9400 is appropriate. In evaluating impairment resulting from psychiatric disorders under the old criteria, social inadaptability is to be evaluated only as it affects industrial adaptability. The principle of social and industrial inadaptability, the basic criterion for rating mental disorders, contemplates those abnormalities of conduct, judgment, and emotional reaction which affect economic adjustment, i.e., which produce impairment of earning capacity. 38 C.F.R. § 4.129 (1996). To warrant a 50 percent evaluation under Diagnostic Code 9505, the ability to maintain effective or favorable relationships with people is considerably impaired and, by reason of psychoneurotic symptoms, the reliability, flexibility, and efficiency levels are so reduced as to result in considerable industrial impairment. A 30 percent disability rating is warranted when there is a definite impairment in the ability to establish or maintain effective and wholesome relationships with people, with psychoneurotic symptoms resulting in such reduction in initiative, flexibility, efficiency and reliability levels as to produce definite industrial impairment. A 30 percent evaluation under the above code comports with a "definite" impairment. In Hood v. Brown, 4 Vet. App. 301 (1993), the United States Court of Veterans Appeals stated that the term "definite" in 38 C.F.R. § 4.132 was "qualitative" in character, whereas the other terms were "quantitative" in character, and invited the Board to "construe" the term "definite" in a manner that would quantify the degree of impairment for purposes of meeting the statutory requirement that the Board articulate "reasons or bases" for its decision. 38 U.S.C.A. § 7104(d)(1) (West 1991). In a precedent opinion, the VA General Counsel concluded that "definite" is to be construed as "distinct, unambiguous, and moderately large in degree." It represents a degree of social and industrial inadaptability that is "more than moderate but less than rather large." VAOPGCPREC 9- 93 (Nov. 9, 1993). The Board is bound by this interpretation of the term "definite." 38 U.S.C.A. § 7104(c). In reviewing the veteran's symptomatology under these criteria, the Board finds that he is not considerably disabled in terms of social and industrial inadaptability due to his conversion disorder. Overall, while the veteran has been assigned a GAF score of 50, denoting serious symptomatology, the examiners have most closely described an individual with "definite" impairment. He has poor motivation and insight, but the examiners have deemed his incapacity to be mild and, with regards to other symptomatology, the veteran has sound memory, perception and judgment. This evidence shows no more than definite social and industrial impairment due to the conversion disorder and, therefore, a higher rating is not warranted under the old rating criteria. Under the revised code, 38 C.F.R. § 4.130, Code 9400, a 50 percent disability requires that there be 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; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 30 percent evaluation is warranted when there is occupational and social impairment with 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, mild memory loss,(such as forgetting names, directions, recent events). In reviewing the veteran's symptoms under these revised criteria, the Board finds that he does not demonstrate symptomatology that would warrant more than a 30 percent rating. VA examination records reveal no complaints or findings of flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks, difficulty in understanding complex commands, impairment of short- and long-term memory, impaired judgment, or impaired abstract thinking. Accordingly, the veteran is not entitled to more than a 30 percent rating under the revised criteria. Accordingly, an evaluation of 30 percent for chronic psychoneurotic anxiety reaction with psychophysiological musculoskeletal components is appropriate. Further, as there is no medical opinion of record that the veteran is unemployable due to his disability and he has not sought treatment for his psychoneurotic disorder, much less undergone frequent periods of hospitalization, it is the decision of the Board that the veteran does not present such "an exceptional or unusual disability picture as to render impractical the application of the regular rating schedule standards." 38 C.F.R. § 3.321(b)(1)(1998). Under these circumstances, the Board finds that the veteran has not demonstrated marked interference with employment so as to render impractical the application of the regular rating schedule standards. In the absence of such factors, the Board finds that criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). The Board also acknowledges the veteran's contention that he is being compensated for only the mental aspect of his disability and not the physical aspect of the back pain. However, the Board notes that the veteran's back symptoms are considered to be a part of his nervous disorder and thus have been compensated. The Board also draws the veteran's attention to the policy against "pyramiding" of disability awards enumerated by 38 C.F.R. § 4.14. In other words, while several diagnostic codes may apply in the instant case, "the rating schedule may not be employed as a vehicle for compensating a claimant twice (or more) for the same symptomatology; such a result would overcompensate the claimant for the actual impairment of his earning capacity." Brady v. Brown, 4 Vet.App. 203, 206 (1993). III. TDIU The veteran contends that he is unable to sustain gainful employment as a result of his service-connected disability. Specifically, he argues that his psychoneurotic disorder is of such severity that he cannot obtain or retain any type of substantially gainful employment. Therefore, he argues that he is entitled to TDIU benefits. As a preliminary matter, the Board finds that the veteran's claim is "well-grounded" within the meaning of 38 U.S.C.A. § 5107(a). See Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). An individual unemployability claim is essentially a claim that service-connected disabilities have increased to a point where substantially gainful employment is precluded. As such, it is in the nature of an increased rating claim and is deemed to be well grounded. See Proscelle v. Derwinski, 2 Vet.App. 629, 632 (1992). The Board also finds that the duty to assist the veteran has been met. The record includes reports of several VA examinations performed in recent years, as well as relevant treatment records, and the Board believes that the record as it stands allows for an equitable review of the veteran's claim. In order to establish service connection for a total rating based upon individual unemployability due to service- connected disabilities, there must be impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is "whether the veteran's service connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. VA regulations establish objective and subjective standards for an award of total rating based on unemployability. When the veteran's schedular rating is less than total (for a single or combination of disabilities), a total rating may nonetheless be assigned when there are two or more disabilities, at least one disability is ratable at 40 percent or more, and any additional disabilities result in a combined rating of 70 percent or more, and the disabled person is unable to secure or follow a substantially gainful occupation. See 38 C.F.R. § 4.16(a). A total disability rating may also be assigned on an extra-schedular basis, pursuant to the procedures set forth in 38 C.F.R. § 4.16(b), for veterans who are unemployable by reason of service- connected disabilities, but who fail to meet the percentage standards set forth in section 4.16(a). Service connection has been established for only a chronic psychoneurotic anxiety reaction. This disability has been assigned a 30 percent evaluation and, as this is the only service connected disorder in effect, the combined rating for the veteran's disability is 30 percent. 38 C.F.R. § 4.25. Thus, the veteran does not satisfy the percentage rating standards for individual unemployability benefits, although consideration to such benefits on an extraschedular basis may be given. The issue is whether his service-connected disabilities preclude him from engaging in substantially gainful employment (i.e., work that is more than marginal, which permits the individual to earn a "living wage"). Moore v. Derwinski, 1 Vet. App. 356 (1991). For a veteran to prevail on a claim for a total compensation rating based on individual unemployability, the record must reflect some factor that takes this case outside the norm. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The veteran does not meet the schedular requirements for a total disability rating based on individual unemployability due to service- connected disability (TDIU) under 38 C.F.R. § 4.16(a). The veteran contends, in essence, that his psychoneurotic disability precludes employment. However, the medical evidence does not support his assertion. It is the Board's judgment that, while the medical evidence indicates that the veteran experiences psychological symptomatology, relating to his back that would result in some functional impairment which undoubtedly limits his employment options, the record does not contain a medical opinion that supports his claim that he is unable to work due to his service connected disability. The board is cognizant that the veteran has been found disabled by the Missouri Department of Human Services. However, the evidence does not establish total disability pursuant to VA regulation. Being unemployed is not the same as being unemployable. There is no probative evidence in the record to suggest that the veteran is incapable of performing some sort of occupation. His application for TDIU shows that the veteran had one year of college education. This application also shows that there have been no recent efforts to find employment, since 1993, and the relevant symptoms do not appear to be of a severity to prevent him from holding a job. The Board makes particular note of records from March to May 1997 where the veteran and his VA psychologist reviewed the veteran's vocational situation. There, the veteran expressed an interest in being a paralegal and took tests showing that the veteran was suited to careers in mechanical activity, medical service, art, writing, teaching, etc. The Board also notes that the veteran has several nonservice connected disabilities, including disc space narrowing, rhinitis, and hypertension, which cannot be considered in the pertinent analysis. While his service-connected disability may limit his employment options, it does not prevent all substantially gainful employment for which he is qualified by reason of his education and work experience. As a result, the Board finds that the criteria for a TDIU rating are not met. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable, and the claim for a TDIU must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER The veteran's claims of entitlement to service connection for a low back disorder and rhinitis are denied as not well grounded. The veteran's claim of entitlement to an increased rating for chronic psychoneurotic anxiety reaction is denied. Entitlement to TDIU is denied. WARREN W. RICE, JR. Member, Board of Veterans' Appeals