Citation Nr: 0005742 Decision Date: 03/03/00 Archive Date: 03/14/00 DOCKET NO. 97-17 558 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to an increased (total) rating for post traumatic stress disorder, currently rated as 70 percent disabling. 2. Entitlement to service connection for disabilities of the neck, throat, and skin, claimed as secondary to herbicide exposure. REPRESENTATION Appellant represented by: South Carolina Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Thomas D. Jones, Associate Counsel INTRODUCTION The veteran served on active duty from February 1967 to October 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 1997 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA), which denied the veteran's claim for an increased rating for his service connected post traumatic stress disorder, and service connection for skin, neck, and throat disorders secondary to herbicide exposure. The veteran filed a timely notice of disagreement, initiating this appeal. After being provided a statement of the case, he filed a timely VA Form 9, perfecting his appeal. He was afforded a personal hearing at the RO in October 1997. In a June 1998 rating decision, the veteran was awarded an increased rating, to 70 percent, for his service connected post traumatic stress disorder. However, because there has been no clearly expressed intent on the part of the veteran to limit his appeal to entitlement to a specified disability rating, the VA is required to consider entitlement to all available ratings for that disability. AB v. Brown, 6 Vet. App. 35, 38 (1993). Accordingly, this issue remains in appellate status. This appeal was first presented to the Board in May 1999, at which time it was remanded for additional development. It has now been returned to the Board. FINDINGS OF FACT 1. The veteran's post traumatic stress disorder renders him substantially incapable of obtaining or retaining gainful employment. 2. The veteran served in Vietnam during his period of military service, and was exposed to chemical herbicides, including Agent Orange. 3. The evidence does not demonstrate that he has any disability of the neck, skin, or throat which is due to or results from a disease or injury incurred in or aggravated by service. 3. The evidence does not demonstrate that he has any disability of the neck, skin, or throat which is due to or the result of herbicide exposure during service. CONCLUSIONS OF LAW 1. The criteria for the assignment of a 100 percent rating for post traumatic stress disorder have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9411 (1999). 2. The veteran's claims for service connection for disabilities of the skin, neck, and throat are not well grounded, and must be denied. 38 U.S.C.A. §§ 1110, 1116, 5107 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Background The veteran had active military service from February 1967 to October 1968. His service personnel records reflect service in Vietnam. According to his service medical records, he was afforded a pre-induction medical examination in May 1966. At the time, he had no disabilities of the throat, neck, or skin; however, several scars of the left arm, left knee, and right lower leg were noted. In May 1967, the veteran sustained a burn on his left leg. After a week's time, it was seen to be slow in healing, and a surgical skin graft was performed at the burn site. This operation was performed without complications, and the veteran was discharged from the hospital for post-operative follow-up care on an outpatient basis. In May 1968, he was treated for a skin disorder, diagnosed as tenia versicolor, of the neck and torso. Medication was prescribed. By the time of his October 1968 service separation examination, his skin was without abnormality. In July 1981, the veteran sought treatment at the emergency room of a private hospital for a foreign body in his throat, which he felt after eating chicken for lunch. An esophagoscopy was performed, but no foreign body was found. It was assumed to have passed, and he was released. However, he returned to his private physician later that month with complaints of intermittent hoarseness. An ulcer of the lingual surface of the right mandible was noted. Medication was prescribed, and the veteran was told to return if he had further difficulties. The medical record reflects no additional treatment with this physician for this disability. The veteran was granted service connection in October 1982 for residuals of a burn to the skin of the left leg. The veteran was granted service connection for post traumatic stress disorder via an October 1987 rating decision. In March 1995, he filed a claim for an increased rating for his post traumatic stress disorder, at the time rated as 50 percent disabling. Records of a February 1995 VA psychiatric examination were obtained by the RO. At the time, the veteran was an inpatient at a VA medical center. He was admitted that same month, and was receiving psychiatric treatment following a claimed suicide attempt. His reported symptoms included crying spells, poor sleep, an exaggerated startle response, and nightmares. He was currently single, and lived with his brother. He drank alcohol daily, and used drugs on occasion. On physical evaluation, he was alert and fully oriented, and his manner was pleasant and cooperative. His mood was depressed, with a sad facial expression. His thought processes were logical and goal-directed, but somewhat slow. He reported some auditory hallucinations, described as "whispering," but no visual hallucinations. Some paranoia was reported by the veteran. He denied any homicidal ideation, and no longer had an active plan for suicide. His memory, both recent and remote, was fair. His intelligence was estimated to be in the average range, and he had partial insight. Post traumatic stress disorder and major depressive disorder were diagnosed, with disability in the severe range, according to the VA examiner. The veteran was competent to handle his own funds. He was ultimately released from hospitalization in March 1995, with medication and instructions to seek outpatient follow-up care. Other, non- psychiatric diagnoses included hypertension and a history of a cerebrovascular accident, with residual left hemiparesis and organic brain syndrome. The veteran filed a claim for "any cancers related to Vietnam Agent Orange" in December 1996. He stated that he had recently been treated for "skin conditions and neck and throat problems" at the local VA medical center, and he felt these were related to Agent Orange exposure during Vietnam. In February 1997, the RO considered the veteran's claim for an increased rating for his post traumatic stress disorder, and for service connection for residuals of Agent Orange exposure. Both claims were denied. The veteran responded with a March 1997 notice of disagreement regarding both decisions, and filed an additional claim for service connection for peripheral neuropathy secondary to Agent Orange exposure. He was sent a March 1997 statement of the case, and filed a VA Form 9 in May 1997. He argued his post traumatic stress disorder symptoms prevented him from maintaining employment. The veteran filed an August 1997 VA application for compensation and pension, claim service connection for "Agent Orange exposure." He wrote that as a result of his Agent Orange exposure, he had "soft tissue sarcoma," and disabilities of the larynx, leg, and neck. He also had skin tumors. Service connection was also claimed for cervical myelopathy, also secondary to herbicide exposure. The veteran was hospitalized at a VA facility for a week in July 1997 for treatment of weakness and loss of function of the extremities. He was afforded a full range of testing and treatment, and was discharged that same month. His discharge diagnoses included cervical myelopathy. He was again hospitalized in August 1997 for treatment of symptoms similar to those reported in July 1997. He was treated and released that same month. A personal hearing before RO personnel was afforded the veteran in October 1997. He testified that he was frequently in areas that had recently been sprayed with herbicides. This exposure resulted in skin tumors which were removed several years ago, according to the veteran's testimony. He also had problems with his throat, including difficulty swallowing, which required surgery. He asserted that these were related to Agent Orange exposure. Regarding his post traumatic stress disorder symptoms, he says he has frequent angry outbursts which lead to violence, if other people are nearby. For that reason, he tends to keep to himself and cannot work. He also has poor sleep, due to nightmares and hypervigilance. In support of the veteran's claim, the RO obtained the veteran's VA outpatient treatment records. The veteran has sought treatment at VA medical facilities for many years for a variety of disabilities. He has consistent complaints of joint pain and weakness, and neurological difficulties in his hands, feet, and legs. He has also received intermittent psychiatric counseling and treatment. The veteran's medical care is ongoing. A new VA post traumatic stress disorder examination was afforded the veteran in April 1998. He reported such symptoms as poor sleep, self-isolation, angry outbursts and a quick temper, auditory hallucinations, and paranoid thoughts. He also had frequent suicidal thoughts, with prior attempts. Upon objective examination, the veteran was alert, oriented, and appeared his stated age. His mood was depressed, and his speech was agitated. His thought processes were somewhat slowed, but were devoid of any current auditory or visual hallucinations. Paranoid thoughts were reported, and the veteran had some homicidal and suicidal ideation, with no active plans. His memory, both recent and remote, was fair. He was unable to concentrate sufficient to spell words backward or interpret proverbs. His intelligence was estimated to be below average, and he had only partial insight. The veteran was diagnosed with post traumatic stress disorder, and a Global Assessment of Functioning (GAF) score of 45 was assigned. The veteran's symptoms were described as "significant and serious," but he was competent to handle his own funds. Also in April 1998, the veteran spent a week at VA medical center for treatment of suicidal thoughts. He was given counseling and medication, and was discharged for outpatient follow-up care. The RO reviewed this evidence and in a June 1998 rating decision, awarded the veteran an increased rating, to 70 percent, for his post traumatic stress disorder. In a July 1998 rating decision, the veteran was awarded a total disability rating due to individual unemployability. The veteran's claim was first presented to the Board in May 1999, at which time it was remanded for additional development. In September 1999, the RO received Social Security Administration records concerning the veteran's claim for Social Security Disability benefits. He was awarded benefits in July 1986, effective to August 1981. His disabilities included bilateral degenerative joint disease of the knees, chronic low back pain, and anxiety neurosis. The veteran was given a follow-up psychiatric examination by the Social Security Administration in August 1996. He related such post traumatic stress disorder symptoms as irritability, poor sleep, and angry outbursts. He also described his treatment history, including numerous psychiatric hospitalizations. The examiner interviewed the veteran and concluded it was "quite clear" that the veteran could not work due to his psychiatric disabilities, diagnosed as post traumatic stress disorder and depression. The RO considered this additional evidence and continued the prior denial of an increased rating, in excess of 70 percent, for the veteran's post traumatic stress disorder. Also, service connection remained denied for throat, neck, and skin disabilities secondary to Agent Orange exposure. The appeal was then returned to the Board for re-consideration. Analysis I. Increased rating - Post traumatic stress disorder The veteran's claim for entitlement to an increased rating for his service-connected post traumatic stress disorder is "well grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). The U. S. Court of Appeals for Veterans Claims (Court) has held that if a veteran claims that a service- connected disability has become worse, then the claim is well grounded. Proscelle v. Derwinski, 2 Vet. App. 629 (1992). Disability evaluations are based upon the average impairment of earning capacity as contemplated by the schedule for rating disabilities. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1999). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (West 1991). However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). In cases in which a reasonable doubt arises as to the appropriate degree of disability to be assigned, such doubt shall be resolved in favor of the veteran. 38 C.F.R. § 4.3 (1999). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7 (1999). The provisions of the rating schedule for determining the disability evaluations for mental disorders were changed effective November 7, 1996. Where a law or regulation 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 veteran will apply. Karnas v. Derwinski, 1 Vet. App. 308 (1991). In the present case, the veteran initiated his claim in March 1995, prior to the regulatory changes. Therefore, in light of Karnas, the veteran is entitled to evaluation of his increased rating claim under both the new and the old criteria. The RO afforded the veteran an additional VA psychiatric examination in April 1998, and reconsidered his claim under all applicable laws and regulations in June 1998; thus, a remand for this purpose is not necessary at this time. Currently, the veteran's post traumatic stress disorder is rated as 70 percent disabling. Post traumatic stress disorder is evaluated under the provisions of 38 C.F.R. Diagnostic Code 9411. Under this code, prior to the amendments of November 7, 1996, a 100 percent rating was assigned when there are 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 attitudes of all contacts except the most intimate are so adversely affected as to result in virtual isolation in the community; or when the veteran is demonstrably unable to obtain or retain employment. As amended effective November 7, 1996, the rating criteria provide for a 100 percent rating when the evidence reflects total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance or minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, Diagnostic Code 9411 (1999). For the reasons to be discussed below, the medical evidence establishes that a 100 percent (total) disability rating is warranted for the veteran's post traumatic stress disorder. Considering the veteran's symptoms first in light of the criteria in effect prior to November 1996, the medical evidence has indicated on at least one occasion, the August 1996 Social Security Administration psychiatric examination, that the veteran is unemployable due to his post traumatic stress disorder, based on the assessment of a qualified medical expert. The Social Security examiner interviewed the veteran and concluded it was "quite clear" that the veteran could not work due to his psychiatric disabilities, diagnosed as post traumatic stress disorder and depression. He has consistently reported nightmares, flashbacks, depressed mood, crowd avoidance, suicidal ideation, and irritability, and he has been unable to hold a regular job since approximately 1980. He has also been hospitalized on several occasions for treatment of his post traumatic stress disorder. A Global Assessment of Functioning score of 45 has been assigned the veteran, according to the April 1998 VA psychiatric examination report. The Global Assessment of Functioning is a scale reflecting the subject's psychological, social, and occupational functioning. Carpenter v. Brown, 8 Vet. App. 240 (1995). According to the Diagnostic and Statistical Manual for Mental Disorders (DSM-IV), a Global Assessment of Functioning score between 41-50 represents "serious impairment in social, occupational, or school functioning." American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, 4th ed., pp. 46-47 (1994). At the time of the veteran's most recent VA psychiatric examination, in April 1998, his disability was described as "significant and serious" by the expert medical examiner. Likewise, his impairment due to post traumatic stress disorder was described as "severe," according to the February 1995 VA examination report. The totality of the record suggests the veteran is demonstrably unable to obtain or retain employment, as would warrant a 100 percent disability rating under the criteria in effect prior to November 1996. There is no significant medical evidence to the contrary, and sufficient examination and treatment have been afforded the veteran in this case. In light of 38 C.F.R. §§ 4.3 and 4.7, described above, his Global Assessment of Functioning score, and the diagnosis of "severe" impairment are sufficient to warrant an increased (total) rating to 100 percent. II. Service connection - Disabilities of the neck, throat and skin, secondary to herbicide exposure The veteran seeks service connection for disabilities of the neck, throat, and skin, claimed as secondary to herbicide exposure in service. The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303 (1999). For veterans who served on active duty in Vietnam within the applicable time frame and later developed one of the specified presumptive diseases, exposure to herbicides is conceded and service connection for the presumptive disease is granted. 38 U.S.C.A. §§ 1113, 1116 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.307, 3.309(e) (1999). As a preliminary matter, the veteran has been diagnosed as having residuals of a burn of his left leg, as well as numerous scars on various parts of his body secondary to skin graft operations to heal the left leg burn. As the veteran has already been granted service connection for these skin disabilities, they will not be considered in adjudicating the veteran's claim for service connection for a skin disability secondary to Agent Orange exposure. Regarding the issue of herbicide exposure, 38 U.S.C.A. § 1116 and its implementing regulation, 38 C.F.R. § 3.307, clearly limit the presumption of herbicide exposure to veterans who served in Vietnam between January 9, 1962, and May 7, 1975, and subsequently developed a statutorily-enumerated presumptive disease. 38 U.S.C.A. § 1116(a)(3) (West 1991 & Supp. 1999); 38 C.F.R. § 3.307(a)(6)(iii) (1999); see McCartt v. West, 12 Vet. App. 164, 168-69 (1999). Several skin, muscle, and nerve diseases have been placed on the list of presumptive diseases for herbicide exposure, but the veteran has not demonstrated that he currently has these or any other presumptive disease; thus, the statutory presumption of herbicide exposure does not apply in the present case. 38 U.S.C.A. § 1116(a)(2) (West 1991 & Supp. 1999); 38 C.F.R. § 3.309(e) (1999). Nevertheless, the veteran's DD-214 indicates he served in Vietnam between January 9, 1962, and May 7, 1975, the period for which it has been acknowledged herbicide agents were used. 38 C.F.R. § 3.307(a)(6) (1998). Thus, his credible testimony regarding herbicide exposure is accepted as sufficient proof of such exposure. Nevertheless, the preliminary requirement for establishing entitlement to any VA benefit is that the applicant submit a claim which is sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. 38 U.S.C.A. § 5107(a) (West 1991). The U. S. Court of Appeals for Veterans Claims (Court) has defined a well- grounded claim as "a plausible claim, one which is meritorious on its own or capable of substantiation." Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). Such a claim need not be conclusive, but only possible, to satisfy the initial burden of § 5107. Id. Case law promulgated by the Court has resulted in what is in effect a three pronged test to determine whether a claim is well grounded. There must be competent evidence of a current disability (medical diagnosis), of incurrence or aggravation of a disease or injury in service (lay or medical evidence), and of a nexus between the injury or disease in service and the current disability (medical evidence). See Rabideau v. Derwinski, 2 Vet. App. 141 (1992); Grottveit v. Brown, 5 Vet. App. 92 (1993); Grivois v. Brown, 6 Vet. App. 136 (1994); Caluza v. Brown, 7 Vet. App. 498 (1995). To be well grounded, a claim must be supported by evidence that suggests more than a purely speculative basis for an award of benefits; evidence is required, not just allegations. Tirpak v. Derwinski, 2 Vet. App. 609 (1992); Dixon v. Derwinski, 3 Vet. App. 261 (1992). For the reasons to be discussed below, the veteran's claim for service connection for disabilities of the skin, neck, and throat, claimed as secondary to herbicide exposure, must be denied as not well grounded. Considering first the veteran's claim that his skin, neck, and throat are a result of Agent Orange exposure, the regulatory list of presumptive diseases for herbicide exposure includes several such disabilities, as is noted above. 38 U.S.C.A. § 1116 (West 1991 & Supp. 1999); 38 C.F.R. § 3.309(e) (1999). However, the veteran has not provided any evidence that he currently has any of the presumptive disabilities. He has submitted private medical records from July 1981 concerning treatment for a throat disability, suspected to be foreign body left over from the veteran's lunch. His throat was surgically examined, and no foreign body was found. The medical examiner suspected it had been swallowed. When he returned to his private physician that same month for treatment of intermittent hoarseness, an ulcer of the lingual surface of the right mandible was diagnosed. The private physician gave no indication that this ulcer was related to herbicide exposure, or that it was a symptom of any underlying disease. The veteran was given medication, and he did not return for follow-up care. No evidence has been submitted which would suggest this throat ulceration was due to or the result of Agent Orange exposure, or was otherwise symptomatic evidence of an Agent Orange presumptive disability. 38 U.S.C.A. § 1116 (West 1991 & Supp. 1999); 38 C.F.R. § 3.309(e) (1999). The veteran was also diagnosed in May 1968, during service, with a skin disability, described as tenia versicolor, and medication was afforded him. By the time of his October 1968 service separation examination, no such skin disability was noted. The veteran has not presented any evidence that he has a current diagnosis of tenia versicolor, or any other skin disability due to his tenia versicolor incurred during service. He has also not demonstrated that he has a current diagnosis of any of the skin disabilities noted on the presumptive list of herbicide-related disabilities. At his October 1997 personal hearing at the RO, the veteran testified that he has developed several "fatty tumors" on his skin which are the result of Agent Orange exposure. While he is not a medical expert qualified to speak on matters of medical etiology, he nevertheless may offer evidence regarding such easily observable symptomatology as an irregularity of the skin. See Savage v. Gober, 10 Vet. App. 489 (1997); Falzone v. Brown, 8 Vet. App. 398 (1995). A current skin disability is thus conceded arguendo, for the purposes of this decision. However, the veteran is not qualified to diagnosis any current skin disability as tenia versicolor, or any herbicide-related presumptive disability, and he is likewise not qualified to state, with any degree of medical certainty, that such a skin disability results from herbicide exposure. See Pearlman v. West, 11 Vet. App. 443, 447 (1998) [citing Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992)]. The totality of the evidence does not demonstrate that the veteran has any of the disabilities for which presumptive service connection is granted due to herbicide exposure. 38 U.S.C.A. § 1116 (West 1991 & Supp. 1999); 38 C.F.R. § 3.309(e) (1999). Nevertheless, this fact alone does not signal the conclusion of his claim. While the veteran cannot be afforded the statutory presumptions discussed above, the United States Court of Appeals for the Federal Circuit has determined that the Veterans' Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2725, 2727-29 (1984) does not preclude a veteran from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). However, the Combee holding does not preclude the Court's previous holdings that where the issue involves medical causation, competent medical evidence which indicates that the claim is plausible or possible is required to set forth a well grounded claim. Grottveit, supra. In the present case, the veteran has offered only his own contentions that his current disabilities of the neck, skin, and throat are due to or the result of Agent Orange exposure. As a layperson, the veteran's testimony regarding issues of medical causation and etiology is not binding on the Board, and is insufficient to well grounded his claim. See Pearlman v. West, 11 Vet. App. 443, 447 (1998) [citing Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992)]. The medical evidence of record is otherwise silent as to any nexus between any of the veteran's current diagnoses, and his herbicide exposure during service. In the absence of any medical evidence of a nexus between in-service herbicide exposure and a current disability, the claim is not well grounded, and must be denied. See Wade v. West, 11 Vet. App. 302, 305-6 (1998) (citing Caluza, supra). In conclusion, the veteran has not demonstrated that he first incurred any of his claimed disabilities of the neck, skin, or throat during service. He has also not submitted medical evidence of a nexus between any in-service herbicide exposure and a current neck, skin, or throat disability. 38 U.S.C.A. §§ 1110, 1116 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (1999). For this reason, his claims for service connection for disabilities of the skin, neck, and throat are not well-grounded, and must be denied on that basis. See Wade, supra. ORDER 1. An increased rating, to 100 percent, is warranted for the veteran's post traumatic stress disorder. 2. Service connection is denied for disabilities of the skin, neck, and throat, claimed as secondary to herbicide exposure. G. H. SHUFELT Member, Board of Veterans' Appeals