BVA9502885 DOCKET NO. 93-07 838 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to an increased evaluation for service-connected post traumatic stress disorder (PTSD), currently evaluated as 30 percent disabling. 2. Entitlement to an increased evaluation for a service- connected left ankle disability (postoperative residuals, status post below-the-knee (BKA) amputation), currently evaluated as 40 percent disabling. 3. Whether new and material evidence has been submitted to reopen a claim for service-connection for a low back disorder, claimed as secondary to the service-connected left ankle disability. 4. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. WITNESSES AT HEARING ON APPEAL Appellant and his brother-in-law ATTORNEY FOR THE BOARD Christopher P. Kissel, Associate Counsel INTRODUCTION The appellant served on active duty in the United States Marine Corps from November 1961 to August 1966. His period of service included two separate tours of duty in the Republic of Vietnam, for which he was awarded the Air Medal in connection with his duties as a helicopter machine gunner and crew chief. This case comes before the Board of Veteran's Appeals (the Board) on appeal from rating decisions of the Seattle, Washington, Department of Veterans Affairs Regional Office (VARO). It is noted that the appellant appeared at a hearing held at VARO on July 20, 1990. A transcript of that hearing has been associated with the record on appeal. With respect to the development of the record on appeal, it is the Board's opinion that VARO fulfilled its statutory duty to assist the appellant in developing the pertinent facts in this case; it appears that all VA and private medical records which are available have been associated with the claims file. See Dusek v. Derwinski, 2 Vet.App. 519 (1992). Accordingly, the Board will now proceed to a disposition on the merits of the claims presently developed and certified for appellate consideration. See Certification of Appeal, VA Form 1-8 (April 1, 1993). CONTENTIONS OF APPELLANT ON APPEAL The appellant contends, in substance, that his service-connected PTSD and left ankle amputation disabilities are more disabling than currently evaluated. He further contends that a low back disorder was caused by the service-connected left ankle disability, thus warranting entitlement to the claimed disability on a secondary basis. Implicit in the appellant's claim is the contention that he has submitted new and material evidence which is sufficient to allow the Board to reopen and review a previously denied claim for that disability. Further, he contends that he is unemployable due to his service-connected disabilities, and that therefore, a total disability rating on the basis of individual unemployability should be granted. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file(s). Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the appellant's service-connected left ankle amputation disability warrants no increase in the currently assigned 40 percent disability rating. Further, it is the decision of the Board that new and material evidence has not been submitted which allows us to reopen and review the record as to the appellant's claim of entitlement to service connection for a low back disorder, claimed as secondary to the service-connected left ankle disability. However, it is the decision of the Board that the appellant's service-connected PTSD is more appropriately rated as 100 percent disabling, according to the pertinent schedular criteria. In view of the Board's favorable action with respect to the appellant's increased rating claim for his service-connected PTSD, thus bringing the combined disability rating to 100 percent, the undersigned concludes that the claim seeking a total disability rating on the basis of individual unemployability has been rendered moot. FINDINGS OF FACT 1. The appellant's service-connected PTSD is currently manifested primarily by anti-social behavior patterns (virtual isolation in his home, compelling need to carry on his person and sleep with loaded firearms), requiring a continuous psychotropic medication regiment and regular outpatient psychiatric treatment and evaluation, resulting in total social and industrial impairment. 2. The appellant's service-connected left ankle disability is essentially manifested by complaints of chronic phantom pains in the area of the amputated stump, requiring the use of a cane for ambulating, with recent clinical findings showing a well-healed stump and no specific points of tenderness, following a January 1992 below-the-knee amputation procedure. 3. In a decision in October 1976, the Board denied the appellant service conneciton for a low back disorder, claimed as secondary to his service-connected left ankle disability. 4. The new evidence submitted by the appellant since the October 1976 Board decision does not objectively establish a cause-and- effect relationship between his low back complaints, noted to be related to intercurrent back injuries sustained on the job in 1978, and his service-connected left ankle disability. CONCLUSIONS OF LAW 1. The appellant's service-connected PTSD produces for all practical purposes total social and industrial impairment; thus, the schedular criteria for a total 100 percent disability evaluation are met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. Part 4, Diagnostic Code 9411 (1993). 2. The service-connected left ankle disability is no more than 40 percent disabling under pertinent schedular criteria. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. Part 4, Diagnostic Code 5262-5165 (1993). 3. The October 1976 Board decision is final; evidence submitted since that decision does not constitute new and material evidence which allows the Board to reopen and review the appellant's claim of service connection for a low back disorder, claimed as secondary to his service-connected left ankle disability. 38 U.S.C.A. §§ 5108, 7104 (West 1991); 38 C.F.R. § 3.156(a) (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Initially, the Board finds that the appellant has submitted evidence which is sufficient to justify a belief that his claims are well grounded. 38 U.S.C.A. § 5107(a) (West 1991) and Murphy v. Derwinski, 1 Vet.App. 78 (1990). Furthermore, the undersigned believes that this case has been adequately developed for appellate purposes by VA and that a disposition on the merits is now in order. I. Increased Rating Claims The appellant is seeking a higher disability evaluations for his service-connected PTSD and residuals of a left ankle amputation. 38 U.S.C.A. § 1155 (West 1991). Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 C.F.R. Part 4 (1993). Separate diagnostic codes identify the various disabilities. Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2 (1993); Peyton v. Derwinski, 1 Vet.App. 282 (1991). PTSD The schedular criteria provide that a psychoneurosis, such as PTSD, resulting in definite social and industrial impairment warrants a 30 percent disability rating; a 50 percent disability rating is warranted for considerable impairment of social and industrial adaptability; a 70 percent disability rating is warranted for severe social and industrial impairment. See 38 C.F.R. § 4.132, Diagnostic Code 9411 (1993). A total schedular disability rating (100 percent) for psychoneurosis under code 9411 is warranted for one or more of the following conditions: All personal contacts with the veteran except the most intimate are so adversely affected as to result in virtual isolation in the community; or, for 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, when the evidence reflects that the service- connected psychoneurosis results in demonstrable inability to obtain or retain employment. The United States Court of Veterans Appeals has recently concluded that any one of the above-cited criteria is a separate and independent basis for an award of a total disability rating under code 9400 et seq. See Johnson v. Brown, No. 93-98 (U. S. Vet. App. September 28, 1994). A longitudinal review of all of the evidence of record persuades the Board that the appellant's service-connected PTSD is appropriately assigned a total 100 percent disability rating according to the schedular criteria set forth under diagnostic code 9411. The prevailing Axis I diagnosis of record is PTSD, with panic disorder manifested by agoraphobia, and alcohol abuse, in partial remission. See Report of VA psychiatric examination (VAX) conducted in October 1991. The examining VA physician on VAX conducted in 1991 proffered the following assessment of the appellant's PTSD disability: The veteran has apparently been diagnosed with PTSD since 1983. He still suffers from this disorder. He did stop drinking heavily in 1983 or 1984. Since then, his behavior has been less violent. He is troubled by panic attacks and these are one of the factors that keep him in his room most of the time. He has not worked since 1978 and does have some significant physical problems. Current symptoms of PTSD include daily intrusive thoughts about events in Vietnam. The veteran has had some flashback experiences. He had nightmares and dreams about the war in the past, but has not had them recently because he is taking amitriptyline. He generally avoids things that remind him of the war. He feels detached and estranged from others and shows a restricted range of affect. Over the years he has had a lot of trouble controlling his anger and has gotten into many fights and altercations. He has difficulty sleeping. He reports [an] exaggerated startle response, hypervigilance, poor concentration and survivor guilt. The Board notes that the above-cited opinion was based on the results of the mental status examination given on the October 1991 VAX as well as on the examining VA physician's review of the all the evidence contained in the appellant's voluminous claims file. The evidentiary record in this case reflects a long history of progressive anti-social behavior patterns as manifested by the appellant's inability to relate to or get along with others. It also appears from the record that the appellant's only significant social contact is his brother-in-law whom he served with during his wartime service in Vietnam. Moreover, there is no evidence that his long-term medication regimen or outpatient counseling has improved his psychiatric disorder so as to make him employable or improve his relations with others. Upon consideration of the appellant's description of his symptoms, coupled with the objective medical evidence of record, the Board believes that the record supports a finding of functional impairment which more nearly approximates the criteria for a total 100 percent schedular evaluation for impairment due to PTSD-type symptomatology causing "virtual isolation in the community." 38 C.F.R. §§ 4.7, 4.20 (1993). Postoperative Residuals, Left Ankle Amputation The medical evidence in this case reflects a long history of progressively disabling residuals due to a service incurred left ankle fracture. In the years after service, the appellant has undergone left tibial osteotomy, ankle fusion, subtalar fusion which subsequently required bone grafting for non-union of the subtalar fusion, and finally, in January 1992, a below-the-knee amputation. The appellant now wears a prosthetic device and is followed on a routine basis in the STAMPS Clinic, VA Medical Center, Seattle, WA. On the basis of the above medical course, VARO awarded a 40 percent combined schedular disability rating under diagnostic code 5262-5165 in September 1992. Further, VARO awarded special monthly compensation on account of anatomical loss of use of the left foot. On recent VAX for evaluation of his left ankle disability in July 1992, the amputated stump was well-healed and there were no specific points of tenderness on palpation. In addition, it was noted that he was not taking any medications for his left ankle disability. However, the examiner noted that the appellant was able to walk with his prosthesis only with the aid of a cane. Also, it was noted that the appellant continued to complain of chronic phantom pains, relieved only by removal of the prosthesis and elevation of his leg. After having reviewed the relevant medical evidence, as essentially related above, the Board is of the opinion that the appellant is appropriately rated for his service-connected left ankle disability at the 40 percent disability rating level. According to VA regulations, a lower extremity amputation, permitting prosthesis, is rated 40 percent disabling. 38 C.F.R. Part 4, Code 5165 (1993). A 40 percent rating represents the maximum schedular evaluation possible under either code 5165 or code 5262 (non-union of the tibia and fibula). As indicated above, the appellant's amputated left foot has been replaced by a prosthetic device and his stump is well-healed. While he continues to complain of chronic phantom pains, he does not take any pain-relief medications. In view of these findings, it appears that he is receiving the maximum possible disability compensation benefits, with special monthly compensation, that can be awarded for his service-connected left ankle disability. Application of extraschedular provisions is not warranted in this case. 38 C.F.R. § 3.321(b) (1993). There is no evidence that the left ankle disability presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. Hence, referral by VARO to VA officials under the above-cited regulation was not required. The evidence in this case is not so evenly balanced so as to allow application of the benefit of the doubt rule as required under the provisions of 38 U.S.C.A. § 5107(b) (West 1991). II. Service Connection Claim: Low Back Disorder As indicated above, the appellant's claim of service connection for a low back disorder claimed as secondary to his service- connected left ankle disability was the subject of an unfavorable rating decision of the Board in October 1976. That decision is final. 38 U.S.C.A. § 7104(b) (West 1991). Under pertinent law and VA regulations, as interpreted by the United States Court of Veterans Appeals, the Board may reopen and review a claim which has been previously denied only if new and material evidence is submitted by or on behalf of the appellant. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (1993); Manio v. Derwinski, 1 Vet.App. 140 (1991). "New" evidence means evidence which is not merely cumulative or redundant. Colvin v. Derwinski, 1 Vet.App. 171 (1991). "Material" evidence is evidence which is relevant and probative of the issue at hand and which, furthermore, when viewed in context of all of the evidence of record, would change the outcome of the case. Smith v. Derwinski, 1 Vet.App. 178 (1991). In the opinion of the Board, the evidence submitted since the Board denied service connection for a low back disorder in October 1976 which is new is not material to the issue of service connection. That is, it does not lead to a conclusion that, when viewed in the context of all the evidence of record, there is a reasonable possibility it would change the outcome of the case. Smith, 1 Vet.App. 178 (1991). On the contrary, a portion of the current evidence, in particular, the appellant's pleadings and personal statements of record, as well as his testimony before a VARO hearing officer in July 1990 essentially reiterate his previously considered contentions with respect to the claimed disability, and as such are not considered to be new, such as is required to reopen a finally denied claim. See Reid v. Derwinski, 2 Vet.App. 312 (1992). Furthermore, the Board cannot entertain unsupported lay speculation on medical issues. Espiritu v. Derwinski, 2 Vet.App. 492 (1992). Medical records submitted since the Board's October 1976 decision do not provide a basis to establish a cause-and-effect relationship between the appellant's low back complaints reported and treated after service and his service-connected left ankle disability; while a portion of these records show renewed complaints of low back pathology, there is no objective medical evidence which positively relates any of these complaints to the left ankle disability. It is significant to note that the record in this case reflects contemporaneous treatment and evaluation for several, separate intercurrent back injuries which the appellant sustained in the post service years. His medical history reported through the years consistently relates his low back complaints to those intercurrent injuries. In summary, none of this evidence provides a credible basis to establish an etiological relationship between his low back disorder and the left ankle disability. Thus, while the evidence submitted subsequent to the Board's 1976 decision reflects treatment for new complaints of low back pain following injuries sustained on the job in 1978 which were different from those complaints noted by the Board in 1976, none of this evidence would change the outcome of the case. Smith, 1 Vet.App. 178, 180 (1991) This new evidence merely confirms the presence of an etiology to his low back complaints which is wholly unrelated to the left ankle disability. Accordingly, the undersigned concludes that the appellant has not submitted evidence which is new and material such as to form a basis to reopen and review the appellant's claim of entitlement to service connection for a low back disorder. ORDER A total (100 percent) disability evaluation for the appellant's service-connected PTSD is granted, subject to the regulations controlling the payment of monetary benefits. An increased disability evaluation for the service-connected left ankle disability (postoperative residuals, status post below-the- knee amputation) is denied. New and material evidence sufficient to reopen a claim for entitlement to service connection for a low back disorder not having been submitted, the benefit sought on appeal remains denied. C. P. RUSSELL Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.