BVA9500111 DOCKET NO. 93-06 195 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for a left leg condition. 2. Whether new and material evidence has been presented to reopen a claim for service connection for a duodenal ulcer. 3. Entitlement to an increased rating for post-traumatic stress disorder, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs ATTORNEY FOR THE BOARD Patrick J. Costello, Associate Counsel INTRODUCTION The veteran had active military service from December 1941 to December 1946. This matter came before the Board of Veterans' Appeals (hereinafter the Board) on appeal from a June 1992 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), in Portland, Oregon, which denied the veteran's claim for service connection for a left leg condition. The decision also denied reopening the veteran's claim for service connection for an ulcer condition. Additionally, the veteran appeals the RO's granting of service connection for PTSD and the assignment of a 10 percent disability for this condition. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that the RO erred when it failed to grant service connection for a left leg condition. He avers that while this condition was not noted in his record, he did incur an injury while in service and that he currently suffers from the residuals of said injury. Also, he claims that the RO was incorrect when it decided not to reopen his claim for an ulcer. Finally, the veteran maintains that his PTSD causes more severe problems than currently rated, and requests an increased evaluation for this psychiatric disability. 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. 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 issue of service connection for a left leg condition is not well-grounded. Furthermore, it is also the decision of the Board that the evidence does not support a reopening of the claim for service connection for a duodenal ulcer. Finally, it is however the decision of the Board that the evidence supports an evaluation of 30 percent for the veteran's PTSD. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the agency of original jurisdiction. 2. The veteran's service medical records are negative for any treatment of a left leg injury while in service. Additionally, recent medical records are negative for any treatment of a left leg condition. 3. The RO denied entitlement to service connection for a duodenal ulcer in December 1950; the claimant did not file a timely appeal, and that decision became final. 4. Additional evidence proffered by the veteran since 1950 include personal statements and recent medical records. This evidence does not demonstrate that the duodenal ulcer had its onset during the veteran's military service or within the presumptive period. The evidence submitted is not relevant and probative, and is not sufficient to reopen the claim for entitlement for service connection for a duodenal ulcer. 5. A VA social worker classifies the veteran as being moderately impaired in his current functioning which is due to the severity of his PTSD. A VA physician's report supports the social worker's findings. 6. Neither an exceptional nor unusual disability picture has been presented so as to render impractical the application of the regular schedular standards. CONCLUSIONS OF LAW 1. The claim for entitlement to service connection for a left leg disability is not well-grounded. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107(a) (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1994). 2. Evidence received since the appellate denial in December 1950 of entitlement to service connection for a duodenal ulcer is not new and material, and the veteran's claim for that benefit has not been reopened. 38 U.S.C.A. §§ 1110, 1131, 5108, 7105 (West 1991); 38 C.F.R. §§ 3.104(a), 3.156(a) (1994). 3. The criteria for a 30 percent evaluation for PTSD have been met. 38 U.S.C.A. §§ 1155, 5107(a) (West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.2, 4.7, 4.10, Part 4, Diagnostic Code 9411 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Service Connection for Left Leg Condition Per 38 U.S.C.A. §§ 1110, 1131 (West 1991), compensation will be provided if it is shown that the veteran suffers from a disease or injury incurred in or aggravated by service. In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (1994). Moreover, under 38 C.F.R. § 3.310 (1994), a disability that is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is established for a secondary condition, the secondary condition shall be considered as part of the original condition. Yet, before service connection may be decided, the initial question for resolution is whether the veteran has submitted a well-grounded claim in accordance with 38 U.S.C.A. § 5107 (West 1991), and Murphy v. Derwinski, 1 Vet.App. 78 (1990). We find that this requirement has not been satisfied for this claim. Per 38 U.S.C.A. § 5107 (West 1991), and subsequently Tirpak v. Derwinski, 2 Vet.App. 609 (1992), a well-grounded claim requires more than just a mere allegation. The appellant in this case must submit supporting evidence that would justify the belief that the claim is plausible. In this instance, the appellant asserts that he currently suffers from the residuals of a leg injury that he incurred while in service. However, the record does not contain any positive evidence corroborating the veteran's claim. That is, the veteran's service medical records are negative for any treatment of a leg injury and his most recent medical records do not indicate that he has been afforded treatment for such an injury. Such statements by the appellant are speculative and would not "justify a belief by a fair and impartial individual that the claim is well grounded." Ibid. Moreover, mere contentions of the appellant without supporting evidence do not constitute a well-grounded claim. Fields v. Derwinski, U.S. Vet. App. No. 90-933 (Dec. 2, 1991); King v. Brown, U.S. Vet. App. No. 92-709 (Apr. 20, 1993). Thus, we find that the absences of service medical records and recent medical records or statements that demonstrate a left leg condition outweigh his assertions that he actually injured his leg while in service. In two recent decisions, Grottveit v. Brown, 5 Vet.App. 92 (1993), and Grivois v. Brown, 6 Vet.App. 136 (1994), the United States Court of Veterans Appeals (the Court) has held that claims for service connection denied on the merits by the Board and, preceding the Board's decisions, by the Regional Office, were not well-grounded, and that "the [Board] and the Regional Office erred in not so deciding the claim." Grottveit, 5 Vet.App. at 92. The governing law, 38 U.S.C.A. § 5107(a) (West 1991), [R]eflects a policy that implausible claims should not consume the limited resources of the VA and force into even greater backlog and delay those claims which -- as well- grounded -- require adjudication. . . Attentiveness to this threshold issue is, by law, not only for the Board but for the initial adjudicators, for it is their duty to avoid adjudicating implausible claims at the expense of delaying well-grounded ones. Grivois, 6 Vet.App. at 139. The Court expressed its concern that a decision on the merits, if deemed final, could constitute an unwarranted impediment to the appellant should he seek to reopen the claim because new and material evidence would be required to reopen. The Court deemed it appropriate, where the Board denied on the merits a claim that was not well-grounded, to "recognize the nullity of the prior decisions and allow appellant to begin, if he can, on a clean slate." Grottveit, 5 Vet.App. at 93; Grivois, 6 Vet.App. at 140. In both cases, the Court vacated the Board's decision and remanded with instructions to vacate the decision of the RO. Id.; Grivois, 6 Vet.App. at 141. In view of the clear direction given by the Court, it is imperative that finality in accordance with 38 C.F.R. § 3.104 (1994), not attach to the rating decisions of June 23, 1992, and September 2, 1994, as regards this claim. II. New and Material Evidence In accordance with 38 U.S.C.A. § 5107 (West 1991), and Murphy v. Derwinski, 1 Vet.App. 78 (1990), the appellant has presented a well-grounded claim. The facts relevant to this appeal have been properly developed and the obligation of the Department of Veterans Affairs (VA) to assist the veteran in the development of his claim has been satisfied. Id. In December 1950, the RO denied service connection for a duodenal ulcer. The evidence of record consisted of the veteran's service medical records, current treatment records, and statements made by the veteran. Although the veteran was diagnosed as suffering from an ulcerous condition, the RO determined that said condition was not incurred in service. Thus, service connection for this condition was denied. The veteran was duly notified, but did not timely appeal to the Board. This decision then became final. 38 U.S.C.A. § 7105 (formerly § 4005) (West 1991). Even though this decision is final, the claim shall be reopened, and the former disposition reviewed if new and material evidence is secured or presented. 38 U.S.C.A. §§ 5108, 7104(b), 7105(c) (West 1991). When a veteran seeks to reopen a previously denied claim based upon new evidence, a two-step analysis is required. The first step is to determine if the evidence is new and material; if so, the case is reopened and the merits of the claim must be evaluated on the basis of all of the evidence, both new and old. Manio v. Derwinski, 1 Vet.App. 140, 145 (1991). New and material evidence means evidence not previously submitted to agency decision makers which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which, by itself or in connection with evidence previously assembled, is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a) (1994). To justify a reopening on the basis of new and material evidence, there must be a reasonable possibility that the new evidence, when viewed in the context of all of the evidence, both new and old, would change the outcome. Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991). If new and material evidence has not been submitted, the Board does not need to address the merits of the claim. Sanchez v. Derwinski, 2 Vet.App. 330 (1992). For the limited purpose of determining whether to reopen a claim, the Board must accept the new evidence as credible and entitled to full weight. Justus v. Principi, 3 Vet.App. 510 (1992). This presumption no longer attaches in the adjudication that follows reopening. Id. The veteran petitioned to reopen his claim in July 1991. In support of his claim, he submitted current medical records and personal statements. Upon accepting the veteran's petition, the RO found that the veteran had not submitted new and material evidence. That is, the RO noted that while the evidence submitted was new in that it showed current treatment of a duodenal ulcer, it was not material because it did not link his present condition with his military service. Thus, a change in the previous decision was not warranted. The veteran then appealed that decision to the Board. Reviewing these newly presented pieces of evidence, it is clear to the Board that the veteran's present treatment records do show treatment of an ulcerous condition. However, they did not relate his current condition with his military service forty plus years ago. Moreover, his personal statements are duplicative, redundant, and cumulative, in that they provide information that has been previously before the RO. These items are not new and material. That is, the information provided repeats previously presented information that does not establish any possibility of entitlement to service connection for a duodenal ulcer. Hence, the Board finds that a reasonable possibility does not exist that this new evidence, in the context of all of the evidence, might change the prior outcome. Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991); Rabideau v. Derwinski, 2 Vet.App. 141, 143-144 (1992); 38 C.F.R. § 3.156(a) (1994). III. Increased Rating for PTSD Disability evaluations are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1994). Separate rating codes identify the various disabilities. 38 C.F.R. Part 4 (1994). In determining the current level of impairment, the disability must be considered in the context of the whole recorded history, including service medical records. 38 C.F.R. §§ 4.2, 4.41 (1994). The veteran requested service connection for PTSD in 1991 on the basis that he was having recurrent nightmares, anxiety, and guilt concerning his World War II experiences. After completing a PTSD questionnaire and undergoing a VA psychiatric examination in which a diagnosis of PTSD was made, the RO granted service connection for this condition. VA Form 21-6796, Rating Decision, June 23, 1992. In accordance with 38 C.F.R. Part 4, Diagnostic Code 9411 (1992), a 10 percent disability evaluation was assigned. A 100 percent evaluation will be assigned for PTSD when the attitudes of all contacts except the most intimate are so adversely affected as to result in virtual isolation in the community. 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 will be present. The individual will be unable to obtain or retain employment. A 70 percent rating is warranted when the ability to establish or maintain effective or favorable relationships with people is severely impaired. The psychoneurotic symptoms are of such severity and persistence that there is severe impairment to obtain or retain employment. A 50 percent evaluation will be assigned when the ability to establish or maintain effective or favorable relationships with people is considerably impaired. By reason of psychoneurotic symptoms, the reliability, flexibility, and efficiency levels are so reduced as to result in considerable industrial impairment. When there is definite impairment in the ability to establish or maintain effective or wholesome relationships with people, a 30 percent evaluation is warranted. The psychoneurotic symptoms result in such reduction in initiative, flexibility, efficiency, and reliability levels as to produce definite industrial impairment. A 10 percent evaluation will be assigned when the psychoneurotic symptoms are less than the criteria for the 30 percent rating, with emotional tension or other evidence of nervousness productive of mild social and industrial impairment. 38 C.F.R. Part 4, Diagnostic Code 9411 (1994). In Hood v. Brown, 4 Vet.App. 301 (1993), the Court of Veterans Appeals stated that the term "definite" in 38 C.F.R. § 4.132 (1993) 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 requirements that the Board articulate "reasons and bases" for its decision. 38 U.S.C.A. § 7104(d)(1) (West 1991). In a precedent opinion, dated November 9, 1993, the General Counsel of the VA 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." VA O.G.C. Prec. 9-93 (Nov. 9, 1993). The Board is bound by this interpretation of the term "definite." 38 U.S.C.A. § 7104(c) (West 1991). With these considerations in mind, the Board will address the merits of the claim at issue. The veteran has appealed the June 1992 rating decision that assigned a 10 percent evaluation for his PTSD. We find that the veteran has presented a well-grounded claim and that the VA has met its burden to assist the veteran in the development of his claim. In this instance, the Board has two evaluations to review which may support the veteran's claim for an increased rating. The first is the report by the VA physician who evaluated the veteran on December 10, 1992. In that evaluation, the examiner wrote that the veteran had been ". . . of a generation of men during the WW II era that learned not to discuss their emotions and consequently shunted them into their physical body. . . Consequently his PTSD has not caused him to be dysfunctional, but has maintained [a] silent and agonizing life of its own along with the appearance that everything was okay." The veteran was also seen be a VA social worker on October 23, 1991. In her evaluation the social worker wrote the following: Like many men of his era, this man has held down a job and raised a family despite the emotional handicaps. Even though he has led a "successful" life, I believe he is moderately impaired by the symptoms of post traumatic stress disorder. I believe this is very hard to gauge with the veterans of World War II. The Vietnam veterans, for the most part, who are moderately or severely impaired are not able to be successful in any of these spheres, whereas most World War II veterans have been. I believe this is because of the depression and the way the World War II veterans were raised, but this does not mean that the World War II veterans are any less impaired. In determining whether an increased rating is warranted, the VA must determine whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case service connection must be denied. 38 U.S.C.A. § 5107 (West 1991); Gilbert v. Derwinski, 1 Vet.App. 49 (1990). In this instance, the Board is of the opinion that the evidence of record supports an increased disability evaluation. While the clinical findings do not exactly mirror the evaluation criteria for a 30 percent schedular disability rating for PTSD, we are of the opinion that the evidence more closely approximates the higher rating versus that of a 10 percent evaluation. 38 U.S.C.A. § 5107(b) (West 1991); 38 C.F.R. § 4.7, Part 4, Diagnostic Code 9411 (1994). Therefore, a 30 percent evaluation for PTSD is granted. IV. Extraschedular Evaluation Consideration has also been given to the potential application of the extraschedular evaluation provisions of 38 C.F.R. § 3.321(b) (1994). The evidence does not present such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards. Specifically, there has not been a demonstration of marked interference with employment or frequent periods of hospitalization so as to render impractical the application of the regular schedular criteria. ORDER 1. A well-grounded claim for service connection for a left leg disability not having been submitted, the claim is dismissed, and the rating decisions of June 23, 1992, and September 2, 1994, insofar as the claim for entitlement to service connection for a left leg condition is concerned, is vacated. 2. New and material evidence has not been submitted and the claim has not been reopened. The benefit sought on appeal is denied. 3. An evaluation of 30 percent for PTSD is granted, subject to the regulations governing the disbursement of monetary benefits. JACK W. BLASINGAME 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.