Veterans opinion of VA
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Below is a recent Board of Veterans Appeals
decision Docket No. 98-16 925, wherein the BVA granted service connection for
hypertension related to service connected PTSD.
BVA decisions are not precedent setting cases and
as such should not be cited at any level of VA adjudication other than at the
regional office and BVA level. Even at those levels the VA adjudicator does not
have to rely on a BVA decision in another case.
However, if you can duplicate the same type
evidence with your own Doctor's statements and evidence, then your results
should eventually be the same.
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Citation Nr: 0007577
Decision Date: 03/21/00 Archive Date: 03/28/00
Decision Date: 03/21/00 Archive Date: 03/28/00
DOCKET NO. 98-16
925 ) DATE
)
)
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Oakland,
California
Department of Veterans Affairs Regional Office in Oakland,
California
THE ISSUES
1. Entitlement to an increased evaluation for
post-traumatic
stress disorder (PTSD), currently evaluated as 50 percent
disabling.
stress disorder (PTSD), currently evaluated as 50 percent
disabling.
2. Entitlement to service connection for
cardiovascular
disease, status post myocardial infarction and coronary
artery bypass graft (CABG), and hypertension, as secondary to
service-connected PTSD.
disease, status post myocardial infarction and coronary
artery bypass graft (CABG), and hypertension, as secondary to
service-connected PTSD.
3. Entitlement to a total disability rating for
compensation
purposes on the basis of individual unemployability due to
service-connected disabilities.
purposes on the basis of individual unemployability due to
service-connected disabilities.
REPRESENTATION
Appellant represented by: Disabled American
Veterans
ATTORNEY FOR THE BOARD
Michael J. Skaltsounis, Associate
Counsel
INTRODUCTION
The veteran had active service from May 1967 to May
1969.
Initially, the Board of Veterans' Appeals (Board)
notes that
while the issue of entitlement to a total disability rating
for compensation purposes on the basis of individual
unemployability was not listed as an issue certified for
appellate review, following the September 1998 rating
decision which denied this claim, comments contained within
the veteran's October 1998 substantive appeal and February
1999 statement in support of claim may reasonably be
interpreted as a notice of disagreement with this aspect of
the September 1998 decision. Consequently, the Board finds
that this matter is also a subject for current appellate
consideration. However, while the Board notes that it would
ordinarily be required to remand this issue for issuance of a
statement of the case pursuant to Malincon v. West, 12 Vet.
App. 238 (1999), since the Board has determined that the
veteran is otherwise entitled to a 100 percent schedular
rating for his PTSD, this issue has been accordingly rendered
moot and subject to dismissal on that basis.
while the issue of entitlement to a total disability rating
for compensation purposes on the basis of individual
unemployability was not listed as an issue certified for
appellate review, following the September 1998 rating
decision which denied this claim, comments contained within
the veteran's October 1998 substantive appeal and February
1999 statement in support of claim may reasonably be
interpreted as a notice of disagreement with this aspect of
the September 1998 decision. Consequently, the Board finds
that this matter is also a subject for current appellate
consideration. However, while the Board notes that it would
ordinarily be required to remand this issue for issuance of a
statement of the case pursuant to Malincon v. West, 12 Vet.
App. 238 (1999), since the Board has determined that the
veteran is otherwise entitled to a 100 percent schedular
rating for his PTSD, this issue has been accordingly rendered
moot and subject to dismissal on that basis.
FINDINGS OF FACT
1. All relevant evidence necessary for an
equitable
disposition of the veteran's appeal has been obtained by the
regional office (RO).
disposition of the veteran's appeal has been obtained by the
regional office (RO).
2. The veteran's PTSD is currently manifested by
symptoms
that render the veteran demonstrably unable to obtain or
retain employment.
that render the veteran demonstrably unable to obtain or
retain employment.
3. Cardiovascular disease, status post myocardial
infarction
and CABG, and hypertension are causally related to service-
connected PTSD.
and CABG, and hypertension are causally related to service-
connected PTSD.
4. As the Board has granted a 100 percent
schedular rating
for PTSD, there is no longer a controversy regarding the
issue of entitlement to a total schedular rating for
compensation purposes on the basis of individual
unemployability; a total rating based on individual
unemployability due to service-connected disabilities is
assignable only if the schedular rating is less than total.
The Board is, however, required to provide reasons and bases
for its determination. Zp v. Brown, 8 Vet. App. 303 (1995).
for PTSD, there is no longer a controversy regarding the
issue of entitlement to a total schedular rating for
compensation purposes on the basis of individual
unemployability; a total rating based on individual
unemployability due to service-connected disabilities is
assignable only if the schedular rating is less than total.
The Board is, however, required to provide reasons and bases
for its determination. Zp v. Brown, 8 Vet. App. 303 (1995).
CONCLUSIONS OF LAW
1. The schedular criteria for a 100 percent
disability
rating for PTSD have been met. 38 U.S.C.A. §§ 1155, 5107
(West 1991); 38 C.F.R. §§ 4.1, 4.7, 4.130, Diagnostic Codes
9400 and 9411 (effective November 7, 1997), 4.132, Diagnostic
Codes 9400 and 9411 (effective from February 3, 1988 to
November 6, 1996).
rating for PTSD have been met. 38 U.S.C.A. §§ 1155, 5107
(West 1991); 38 C.F.R. §§ 4.1, 4.7, 4.130, Diagnostic Codes
9400 and 9411 (effective November 7, 1997), 4.132, Diagnostic
Codes 9400 and 9411 (effective from February 3, 1988 to
November 6, 1996).
2. Cardiovascular disease, status post myocardial
infarction
and CABG, and hypertension are proximately due to or the
result of service-connected PTSD. 38 U.S.C.A. § 5107 (West
1991); 38 C.F.R. § 3.310 (1999).
and CABG, and hypertension are proximately due to or the
result of service-connected PTSD. 38 U.S.C.A. § 5107 (West
1991); 38 C.F.R. § 3.310 (1999).
3. There is no longer an issue of fact or law
pertaining to
a claim for VA benefits before the Board as to entitlement to
a total disability rating based on individual unemployability
due to service-connected disabilities. 38 U.S.C.A. §§ 511,
7104, 7105 (West 1991); 38 C.F.R. § 20.101 (1999).
a claim for VA benefits before the Board as to entitlement to
a total disability rating based on individual unemployability
due to service-connected disabilities. 38 U.S.C.A. §§ 511,
7104, 7105 (West 1991); 38 C.F.R. § 20.101 (1999).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Entitlement to an Increased Evaluation for PTSD,
Currently
Evaluated as 50 Percent Disabling
Evaluated as 50 Percent Disabling
Background
The Board notes that the claim is well grounded and
adequately developed. 38 U.S.C.A. § 5107(a); Proscelle v.
Derwinski, 2 Vet. App. 629 (1992).
adequately developed. 38 U.S.C.A. § 5107(a); Proscelle v.
Derwinski, 2 Vet. App. 629 (1992).
Disability evaluations are determined by the
application of a
schedular rating which is based on average impairment of
earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4.
Separate diagnostic codes identify the various disabilities.
schedular rating which is based on average impairment of
earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4.
Separate diagnostic codes identify the various disabilities.
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. Otherwise, the lower rating will
be assigned. 38 C.F.R. § 4.7.
shall be applied, the higher evaluation will be assigned if
the disability picture more nearly approximates the criteria
required for that rating. Otherwise, the lower rating will
be assigned. 38 C.F.R. § 4.7.
The rating schedule recognizes that a veteran's
disability
evaluation may require reratings in accordance with changes
in his condition. It is thus essential, in evaluating a
disability, that it be viewed in relation to its history. 38
C.F.R. § 4.1.
evaluation may require reratings in accordance with changes
in his condition. It is thus essential, in evaluating a
disability, that it be viewed in relation to its history. 38
C.F.R. § 4.1.
A review of the history of this disability shows
that the
veteran was originally granted service connection for PTSD,
evaluated as 50 percent disabling, in a rating decision of
June 1997, based on evidence which included service medical
records, Department of Veterans Affairs (VA) medical
examination, and VA medical records. In assigning a 50
percent evaluation, the RO considered the applicable rating
criteria for PTSD both immediately before and after the
November 7, 1996 effective date for the new rating criteria.
Treatment records included a June 1996 treatment summary from
the Vet Center in Fresno, California, which noted the
veteran's difficulty being around and trusting people,
restricted affect, and difficulties with irritability, sleep,
temper, hypervigilance, and startle response. The diagnosis
included chronic PTSD and major depression and the veteran
was assigned a Global Assessment of Functioning (GAF) scale
score of 45 for depression and severe social and industrial
impairment.
veteran was originally granted service connection for PTSD,
evaluated as 50 percent disabling, in a rating decision of
June 1997, based on evidence which included service medical
records, Department of Veterans Affairs (VA) medical
examination, and VA medical records. In assigning a 50
percent evaluation, the RO considered the applicable rating
criteria for PTSD both immediately before and after the
November 7, 1996 effective date for the new rating criteria.
Treatment records included a June 1996 treatment summary from
the Vet Center in Fresno, California, which noted the
veteran's difficulty being around and trusting people,
restricted affect, and difficulties with irritability, sleep,
temper, hypervigilance, and startle response. The diagnosis
included chronic PTSD and major depression and the veteran
was assigned a Global Assessment of Functioning (GAF) scale
score of 45 for depression and severe social and industrial
impairment.
September 1996 PTSD examination revealed that the
veteran
reported incidents of hyperarousal and problems with anger.
He further reported that his first marriage ended as a result
of physical violence directed at his spouse because of his
anger and irritability. The veteran readily admitted
detachment and estrangement from others and reported
difficulty concentrating on more than one thing at a time.
The veteran was not employed and had not been employed since
June 1995, at which time he made an unsuccessful return to
work following bypass surgery. The veteran was currently
residing with his second wife and their daughter who was 14
years old. The veteran denied any outside interests,
reported having no friends, and that he had a gun and a guard
dog due to his distrust of people.
reported incidents of hyperarousal and problems with anger.
He further reported that his first marriage ended as a result
of physical violence directed at his spouse because of his
anger and irritability. The veteran readily admitted
detachment and estrangement from others and reported
difficulty concentrating on more than one thing at a time.
The veteran was not employed and had not been employed since
June 1995, at which time he made an unsuccessful return to
work following bypass surgery. The veteran was currently
residing with his second wife and their daughter who was 14
years old. The veteran denied any outside interests,
reported having no friends, and that he had a gun and a guard
dog due to his distrust of people.
Mental status examination in September 1996
revealed that the
veteran was very labile and tearful during the examination.
The diagnoses included moderately severe and chronic PTSD and
moderate major depression without psychotic features, and a
Global Assessment of Functioning (GAF) scale score of 45 to
50 with depression and severe social impairment and
unemployability was assigned. The examiner commented that
the veteran continued to meet the criteria for PTSD, with
nightmares, intrusive thoughts and persistent symptoms of
increased arousal and persistent avoidance of stimuli
associated with his trauma and overall numbing of his general
responsiveness. It was reiterated that the veteran had no
social contacts and continued to have a guard dog and guns,
including automatic weapons with clips. The examiner
believed that the veteran's symptoms justified a separate
diagnosis of depression outside the realm of depression
related to his PTSD.
veteran was very labile and tearful during the examination.
The diagnoses included moderately severe and chronic PTSD and
moderate major depression without psychotic features, and a
Global Assessment of Functioning (GAF) scale score of 45 to
50 with depression and severe social impairment and
unemployability was assigned. The examiner commented that
the veteran continued to meet the criteria for PTSD, with
nightmares, intrusive thoughts and persistent symptoms of
increased arousal and persistent avoidance of stimuli
associated with his trauma and overall numbing of his general
responsiveness. It was reiterated that the veteran had no
social contacts and continued to have a guard dog and guns,
including automatic weapons with clips. The examiner
believed that the veteran's symptoms justified a separate
diagnosis of depression outside the realm of depression
related to his PTSD.
VA outpatient records for the period of October
1996 to
January 1997 reflect that although improvement was noted in
October 1996, as of December 1996, the veteran reported more
depression and examination revealed a depressed mood. The
assessment was PTSD and major depressive disorder. In
January 1997, mood was noted to be broad and occasionally
inappropriate. The assessment was again PTSD and major
depressive disorder.
January 1997 reflect that although improvement was noted in
October 1996, as of December 1996, the veteran reported more
depression and examination revealed a depressed mood. The
assessment was PTSD and major depressive disorder. In
January 1997, mood was noted to be broad and occasionally
inappropriate. The assessment was again PTSD and major
depressive disorder.
VA outpatient records for the period of April 1997
to August
1997 reflect that in April 1997, the veteran's mood was noted
to be 4-5/10, and that he was still hypervigilant. The
assessment was PTSD and major depressive disorder. In June
and August 1997, although the veteran mood was noted to be
brighter, it was also indicated that he continued to be
hypervigilant, avoided crowds, and did not trust anybody.
The assessment was again PTSD and major depressive disorder.
1997 reflect that in April 1997, the veteran's mood was noted
to be 4-5/10, and that he was still hypervigilant. The
assessment was PTSD and major depressive disorder. In June
and August 1997, although the veteran mood was noted to be
brighter, it was also indicated that he continued to be
hypervigilant, avoided crowds, and did not trust anybody.
The assessment was again PTSD and major depressive disorder.
August and October 1997 treatment summaries from
the Vet
Center in Fresno, California, reflects the belief that the
veteran continued to meet the diagnostic criteria for PTSD.
The veteran was noted to be easily stressed and anxious, with
memory problems and difficulty concentrating, and he was
given a GAF of 45 for severe social and industrial
impairment.
Center in Fresno, California, reflects the belief that the
veteran continued to meet the diagnostic criteria for PTSD.
The veteran was noted to be easily stressed and anxious, with
memory problems and difficulty concentrating, and he was
given a GAF of 45 for severe social and industrial
impairment.
A November 1997 VA medical examination included a
diagnosis
of PTSD.
of PTSD.
VA PTSD examination in December 1997 revealed that
the
veteran reported recurrent intrusive thoughts about Vietnam,
and that since he had been on Prozac, daily crying spells had
decreased in frequency. The veteran also reported marked
psychological responses to stimuli reminding of his in-
service trauma, and noted that he experienced hypervigilance,
exaggerated startle response. Other symptoms included muscle
tension, shakiness, edginess, dry mouth and tachycardia.
Difficulty with concentration and memory were also reported.
With Prozac, the occurrence of his depression had decreased
from daily to a couple of days a week, and that although
feelings of helplessness, hopelessness, crying spells,
anhedonia and energy loss had resolved, he still complained
of decreased interest in normal daily activity. While he
noted less difficulty with sleeping with medication, he still
reported being easily angered. He also reported a sense of
estrangement and difficulty showing loving feelings towards
others since Vietnam.
veteran reported recurrent intrusive thoughts about Vietnam,
and that since he had been on Prozac, daily crying spells had
decreased in frequency. The veteran also reported marked
psychological responses to stimuli reminding of his in-
service trauma, and noted that he experienced hypervigilance,
exaggerated startle response. Other symptoms included muscle
tension, shakiness, edginess, dry mouth and tachycardia.
Difficulty with concentration and memory were also reported.
With Prozac, the occurrence of his depression had decreased
from daily to a couple of days a week, and that although
feelings of helplessness, hopelessness, crying spells,
anhedonia and energy loss had resolved, he still complained
of decreased interest in normal daily activity. While he
noted less difficulty with sleeping with medication, he still
reported being easily angered. He also reported a sense of
estrangement and difficulty showing loving feelings towards
others since Vietnam.
Mental status examination revealed that the veteran
exhibited
a mildly sad, hostile expression with a constricted congruent
affect. Motor activity was remarkable for generalized
tension. Cognitive examination was found to indicate that
the veteran maintained adequate attention and concentration.
The examiner noted that the veteran described symptoms of
PTSD and depression that did significantly interfere with his
abilities to adequately interact with others and adequately
deal with normal daily stress. The examiner further noted
that the veteran admitted that his anti-depressant medication
had significantly helped to alleviate his symptomatology,
although it did persist. The diagnoses included PTSD,
chronic type single event major depression of moderate
intensity, and insomnia related to PTSD. The examiner
assigned a GAF of 60.
a mildly sad, hostile expression with a constricted congruent
affect. Motor activity was remarkable for generalized
tension. Cognitive examination was found to indicate that
the veteran maintained adequate attention and concentration.
The examiner noted that the veteran described symptoms of
PTSD and depression that did significantly interfere with his
abilities to adequately interact with others and adequately
deal with normal daily stress. The examiner further noted
that the veteran admitted that his anti-depressant medication
had significantly helped to alleviate his symptomatology,
although it did persist. The diagnoses included PTSD,
chronic type single event major depression of moderate
intensity, and insomnia related to PTSD. The examiner
assigned a GAF of 60.
A VA outpatient record from February 1998 reflects
that the
veteran was reportedly doing okay, but more isolative and
depressed. Prozac had reportedly decreased rage and anger,
and the assessment included PTSD and depression.
veteran was reportedly doing okay, but more isolative and
depressed. Prozac had reportedly decreased rage and anger,
and the assessment included PTSD and depression.
A February 1998 VA medical examination included a
diagnosis
of PTSD.
of PTSD.
A VA outpatient record from April 1998 indicates
that Prozac
had been helpful for all the veteran's symptoms of PTSD, and
the examiner assigned a GAF of 70.
had been helpful for all the veteran's symptoms of PTSD, and
the examiner assigned a GAF of 70.
A VA PTSD examination in June 1998 revealed that
the veteran
reported crying at the rate of once a week and that he
experienced a marked psychological response to stimuli
reminding him of the trauma he witnessed in Vietnam. He
further related that he was hypervigilant on a daily basis,
citing the fact that he frequently checked doors, carried a
weapon, had a guard dog, and had an exaggerated startle
response. Other daily symptoms included restlessness, muscle
tension, edginess, shakiness, a dry mouth, and tachycardia,
and he reported difficulty with concentration and memory. He
further reported having a recurrence of feelings of
helplessness, hopelessness, loss of energy throughout the
day, anhedonia, and a markedly decreased interest in normal
daily activities. He had also had suicidal ideation. He
described difficulty getting to sleep and staying asleep, and
indicated that he was easily angered. The anger would be out
of proportion to the provocation and he would sometimes
strike out at others. The veteran admitted a sense of
estrangement and difficulty showing loving feelings towards
others since Vietnam, and denied any outside activities or
hobbies.
reported crying at the rate of once a week and that he
experienced a marked psychological response to stimuli
reminding him of the trauma he witnessed in Vietnam. He
further related that he was hypervigilant on a daily basis,
citing the fact that he frequently checked doors, carried a
weapon, had a guard dog, and had an exaggerated startle
response. Other daily symptoms included restlessness, muscle
tension, edginess, shakiness, a dry mouth, and tachycardia,
and he reported difficulty with concentration and memory. He
further reported having a recurrence of feelings of
helplessness, hopelessness, loss of energy throughout the
day, anhedonia, and a markedly decreased interest in normal
daily activities. He had also had suicidal ideation. He
described difficulty getting to sleep and staying asleep, and
indicated that he was easily angered. The anger would be out
of proportion to the provocation and he would sometimes
strike out at others. The veteran admitted a sense of
estrangement and difficulty showing loving feelings towards
others since Vietnam, and denied any outside activities or
hobbies.
Mental status examination revealed that the veteran
exhibited
a markedly anxious hostile expression with a constricted
congruent affect. Motor activity was remarkable for
generalized tension and restlessness. Cognitive examination
was found to indicate that the veteran maintained adequate
attention and concentration. Although PTSD and depression
had been noted to be improving with Prozac, Prozac was
reportedly losing its efficacy and symptoms were getting
worse. The examiner noted that the veteran described
symptoms as significantly interfering with his abilities to
adequately interact with others and adequately deal with
normal daily stress. The examiner further noted that the
veteran described symptoms, including anhedonia, which
resulted in reduced reliability and productivity to the point
where he would be considered totally occupationally impaired
with regard to being able to consistently maintain
employment. The diagnosis included PTSD, chronic type single
event major depression of moderate intensity, and insomnia
related to PTSD. The examiner assigned a GAF of 50.
a markedly anxious hostile expression with a constricted
congruent affect. Motor activity was remarkable for
generalized tension and restlessness. Cognitive examination
was found to indicate that the veteran maintained adequate
attention and concentration. Although PTSD and depression
had been noted to be improving with Prozac, Prozac was
reportedly losing its efficacy and symptoms were getting
worse. The examiner noted that the veteran described
symptoms as significantly interfering with his abilities to
adequately interact with others and adequately deal with
normal daily stress. The examiner further noted that the
veteran described symptoms, including anhedonia, which
resulted in reduced reliability and productivity to the point
where he would be considered totally occupationally impaired
with regard to being able to consistently maintain
employment. The diagnosis included PTSD, chronic type single
event major depression of moderate intensity, and insomnia
related to PTSD. The examiner assigned a GAF of 50.
A VA outpatient record from September 1998 reflects
that
there was a reported decrease in depression and anxiety with
medication. The assessment was PTSD and dysthymia, and the
veteran was assigned a GAF of 65.
there was a reported decrease in depression and anxiety with
medication. The assessment was PTSD and dysthymia, and the
veteran was assigned a GAF of 65.
A September 1998 treatment summary from the Vet
Center in
Fresno, California, noted that the veteran continued to meet
the diagnostic criteria for PTSD, and that the veteran
reported an increase in conflict with his wife and that he
was very anxious and reactive to stressors. The veteran was
assigned a GAF of 42 with severe social and industrial
impairment and chronic anxiety and depression.
Fresno, California, noted that the veteran continued to meet
the diagnostic criteria for PTSD, and that the veteran
reported an increase in conflict with his wife and that he
was very anxious and reactive to stressors. The veteran was
assigned a GAF of 42 with severe social and industrial
impairment and chronic anxiety and depression.
A VA outpatient record from November 1998 reflects
that the
veteran explode with anger on two occasions during the week,
although he still noted a decrease in anxiety and depression
with medication. The assessment was PTSD and dysthymia, and
the veteran was assigned a GAF of 65.
veteran explode with anger on two occasions during the week,
although he still noted a decrease in anxiety and depression
with medication. The assessment was PTSD and dysthymia, and
the veteran was assigned a GAF of 65.
VA PTSD examination in March 1999 revealed that the
veteran
reported daily intrusive thoughts about Vietnam and crying
spells "a couple of times per week" due to daily
depression. It was noted that the veteran had previously
indicated that his depression had decreased on Prozac, but it
was now indicated that Prozac had lost its efficacy. The
veteran reported experiencing helplessness, hopelessness, a
loss of energy, anhedonia, and markedly decreased interest in
normal daily activities. The veteran again related marked
psychological response to stimuli reminding him of Vietnam,
and experienced other symptoms, including shortness of
breath, tachycardia, muscle tension, restlessness, shakiness,
a dry mouth, and edginess. He further admitted to an
exaggerated startle response and hypervigilance, and
complained of difficulty with concentration and memory. He
also indicated recent suicidal ideation. Sleep difficulties
and anger manifested by violence were also reported.
reported daily intrusive thoughts about Vietnam and crying
spells "a couple of times per week" due to daily
depression. It was noted that the veteran had previously
indicated that his depression had decreased on Prozac, but it
was now indicated that Prozac had lost its efficacy. The
veteran reported experiencing helplessness, hopelessness, a
loss of energy, anhedonia, and markedly decreased interest in
normal daily activities. The veteran again related marked
psychological response to stimuli reminding him of Vietnam,
and experienced other symptoms, including shortness of
breath, tachycardia, muscle tension, restlessness, shakiness,
a dry mouth, and edginess. He further admitted to an
exaggerated startle response and hypervigilance, and
complained of difficulty with concentration and memory. He
also indicated recent suicidal ideation. Sleep difficulties
and anger manifested by violence were also reported.
At this time, the examiner reviewed prior clinical
records
since May 1996, including her own reports from December 1997
and June 1998. These included the results from the September
1996 VA examination which assigned a GAF of 45-50. Vet
Center reports from June 1996 and September 1998 were noted
to have assigned GAF scores of 45 and 42, respectively. The
examiner noted that the veteran was now separated from his
current spouse and again admitted to estrangement from others
and difficulty expressing loving feelings toward others. He
also continued to deny any outside activities or hobbies.
since May 1996, including her own reports from December 1997
and June 1998. These included the results from the September
1996 VA examination which assigned a GAF of 45-50. Vet
Center reports from June 1996 and September 1998 were noted
to have assigned GAF scores of 45 and 42, respectively. The
examiner noted that the veteran was now separated from his
current spouse and again admitted to estrangement from others
and difficulty expressing loving feelings toward others. He
also continued to deny any outside activities or hobbies.
Mental status examination revealed that the veteran
had a
markedly anxious expression with a constricted, congruent
affect. Motor activity was again noted to be remarkable for
generalized tension and restlessness. Cognitive examination
was again found to reveal the maintenance of adequate
attention and concentration. The examiner commented that the
veteran described symptoms of PTSD and depression that the
examiner had previously commented on as being severe enough
to result in the veteran's total occupational disability with
regard to maintaining employment consistently. Now, the
examiner had apparently been requested by the RO to "provide
a professional assessment as to the degree of social and
occupational impairment which is due to PTSD as opposed to
other unrelated AXIS I or AXIS II diagnoses." In response,
the examiner indicated that "[t]here are no unrelated AXIS I
or Axis II diagnoses." The examiner further noted that
while the veteran reported returning to sporadic use of
marijuana, such use did not qualify as abuse and was clearly
described as a means of self-medication for PTSD. She
further stood by her previous statement that the veteran was
totally occupationally impaired, and that the veteran
described significant social problems, not only per his
subjective description of feeling estranged from others and
not relating to those he came into contact with, but also in
his description of now being separated from his current
spouse. The diagnosis included PTSD, chronic type single
event major depression, and insomnia related to PTSD. The
examiner assigned a current GAF of 50.
markedly anxious expression with a constricted, congruent
affect. Motor activity was again noted to be remarkable for
generalized tension and restlessness. Cognitive examination
was again found to reveal the maintenance of adequate
attention and concentration. The examiner commented that the
veteran described symptoms of PTSD and depression that the
examiner had previously commented on as being severe enough
to result in the veteran's total occupational disability with
regard to maintaining employment consistently. Now, the
examiner had apparently been requested by the RO to "provide
a professional assessment as to the degree of social and
occupational impairment which is due to PTSD as opposed to
other unrelated AXIS I or AXIS II diagnoses." In response,
the examiner indicated that "[t]here are no unrelated AXIS I
or Axis II diagnoses." The examiner further noted that
while the veteran reported returning to sporadic use of
marijuana, such use did not qualify as abuse and was clearly
described as a means of self-medication for PTSD. She
further stood by her previous statement that the veteran was
totally occupationally impaired, and that the veteran
described significant social problems, not only per his
subjective description of feeling estranged from others and
not relating to those he came into contact with, but also in
his description of now being separated from his current
spouse. The diagnosis included PTSD, chronic type single
event major depression, and insomnia related to PTSD. The
examiner assigned a current GAF of 50.
Rating Criteria and Analysis
The veteran's service-connected PTSD has been
evaluated as 50
percent disabling pursuant to 38 C.F.R. § 4.132, Diagnostic
Code 9411, under the "old" rating criteria for
neuropsychiatric disabilities (effective prior to November 7,
1996), and also under the "new" criteria for
neuropsychiatric disabilities which took effect during the
pendency of this appeal (on November 7, 1996). The "old"
criteria direct that a 50 percent evaluation is warranted if
the ability to establish or maintain effective or favorable
relationships with people is considerably impaired and where
the reliability, flexibility, and efficiency levels are so
reduced by reason of psychoneurotic symptoms as to result in
considerable industrial impairment. 38 C.F.R. Part 4, Codes
9400 and 9411.
percent disabling pursuant to 38 C.F.R. § 4.132, Diagnostic
Code 9411, under the "old" rating criteria for
neuropsychiatric disabilities (effective prior to November 7,
1996), and also under the "new" criteria for
neuropsychiatric disabilities which took effect during the
pendency of this appeal (on November 7, 1996). The "old"
criteria direct that a 50 percent evaluation is warranted if
the ability to establish or maintain effective or favorable
relationships with people is considerably impaired and where
the reliability, flexibility, and efficiency levels are so
reduced by reason of psychoneurotic symptoms as to result in
considerable industrial impairment. 38 C.F.R. Part 4, Codes
9400 and 9411.
A 70 percent evaluation is warranted where the
ability to
establish or maintain effective or favorable relationships
with people is severely impaired, and where psychoneurotic
symptoms are of such severity and persistence that there is
severe impairment in the ability to obtain or retain
employment.
establish or maintain effective or favorable relationships
with people is severely impaired, and where psychoneurotic
symptoms are of such severity and persistence that there is
severe impairment in the ability to obtain or retain
employment.
A 100 percent evaluation is to be granted when the
attitudes
of all contacts except the most intimate are so adversely
affected as to result in virtual isolation in the community;
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 resulting in profound retreat from mature
behavior; or when the veteran is demonstrably unable to
obtain or retain employment. 38 C.F.R. Part 4, Codes 9400
and 9411. Hence, the older rating criteria set forth three
independent bases for granting a l00 percent evaluation,
pursuant to Diagnostic Code 9411. See Johnson v. Brown, 7
Vet. App. 95 (1994).
of all contacts except the most intimate are so adversely
affected as to result in virtual isolation in the community;
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 resulting in profound retreat from mature
behavior; or when the veteran is demonstrably unable to
obtain or retain employment. 38 C.F.R. Part 4, Codes 9400
and 9411. Hence, the older rating criteria set forth three
independent bases for granting a l00 percent evaluation,
pursuant to Diagnostic Code 9411. See Johnson v. Brown, 7
Vet. App. 95 (1994).
The "new" rating criteria for
neuropsychiatric disabilities
took effect during the pendency of this claim (on November 7,
1996). Under Karnas v. Derwinski, 1 Vet. App. 308, 313
(1991), where the law changes after a claim has been filed or
reopened but before the administrative or judicial process
has been concluded, the version most favorable to the veteran
will apply unless the law provides otherwise. The "new"
rating criteria permit a 50 percent rating for the veteran's
disability where there is the following disability picture:
took effect during the pendency of this claim (on November 7,
1996). Under Karnas v. Derwinski, 1 Vet. App. 308, 313
(1991), where the law changes after a claim has been filed or
reopened but before the administrative or judicial process
has been concluded, the version most favorable to the veteran
will apply unless the law provides otherwise. The "new"
rating criteria permit a 50 percent rating for the veteran's
disability where there is the following disability picture:
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 (e.g. retention of only
highly learned material, forgetting
to complete tasks); impaired
judgment; impaired abstract
thinking; disturbances of motivation
and mood; difficulty in establishing
effective work and social
relationships.
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 (e.g. retention of only
highly learned material, forgetting
to complete tasks); impaired
judgment; impaired abstract
thinking; disturbances of motivation
and mood; difficulty in establishing
effective work and social
relationships.
38 C.F.R. § 4.130, Diagnostic Code 9411, effective
November
7, 1996.
7, 1996.
The "new" rating criteria permit a 70
percent rating for
the veteran's disability where there is the following
disability picture:
the veteran's disability where there is the following
disability picture:
Occupational and social impairment,
with deficiencies in most areas,
such as work, school, family
relations, judgment, thinking, or
mood, due to such symptoms as:
suicidal ideation; obsessional
rituals which interfere with routine
activities; speech intermittently
illogical, obscure, or irrelevant;
near-continuous panic or depression
affecting the ability to function
independently, appropriately and
effectively; impaired impulse
control (such as unprovoked
irritability with periods of
violence); spatial disorientation;
neglect of personal appearance and
hygiene; difficulty in adapting to
stressful circumstances (including
work or worklike setting); inability
to establish and maintain effective
relationships.
with deficiencies in most areas,
such as work, school, family
relations, judgment, thinking, or
mood, due to such symptoms as:
suicidal ideation; obsessional
rituals which interfere with routine
activities; speech intermittently
illogical, obscure, or irrelevant;
near-continuous panic or depression
affecting the ability to function
independently, appropriately and
effectively; impaired impulse
control (such as unprovoked
irritability with periods of
violence); spatial disorientation;
neglect of personal appearance and
hygiene; difficulty in adapting to
stressful circumstances (including
work or worklike setting); inability
to establish and maintain effective
relationships.
38 C.F.R. § 4.130, Diagnostic Code 9411, effective
November
7, 1996.
7, 1996.
The newer rating criteria permit a 100 percent
rating for the
veteran's disability where there is the following disability
picture:
veteran's disability where there is the following disability
picture:
Total occupational and social
impairment, due to such symptoms as:
gross impairment in thought
processes or communication;
persistent delusions or
hallucinations; gross inappropriate
behavior; persistent danger of
hurting self or others; intermittent
inability to perform activities of
daily living (including maintenance
of minimal personal hygiene);
disorientation to time or place;
memory loss for names of close
relatives, own occupation or own
name.
impairment, due to such symptoms as:
gross impairment in thought
processes or communication;
persistent delusions or
hallucinations; gross inappropriate
behavior; persistent danger of
hurting self or others; intermittent
inability to perform activities of
daily living (including maintenance
of 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, effective
November
7, 1996.
7, 1996.
Because the Board finds the veteran's disability
picture more
nearly analogous to the disability picture of a 100 percent
rating under the old criteria, it applies the old criteria.
See Karnas, supra. However, under the new criteria as well,
total occupational and social impairment due solely to PTSD
is a basis for a 100 percent rating. Therefore, as the
Board's analysis below makes clear, even if the Board has
erred in electing to apply the old criteria, this cannot
result in prejudicial error to the veteran. Further, a
remand to permit the RO to initially determine which criteria
to apply is unnecessary because the decision below could not
result in prejudicial error to the veteran. See Bernard v.
Brown, 4 Vet. App. 384 (1993).
nearly analogous to the disability picture of a 100 percent
rating under the old criteria, it applies the old criteria.
See Karnas, supra. However, under the new criteria as well,
total occupational and social impairment due solely to PTSD
is a basis for a 100 percent rating. Therefore, as the
Board's analysis below makes clear, even if the Board has
erred in electing to apply the old criteria, this cannot
result in prejudicial error to the veteran. Further, a
remand to permit the RO to initially determine which criteria
to apply is unnecessary because the decision below could not
result in prejudicial error to the veteran. See Bernard v.
Brown, 4 Vet. App. 384 (1993).
The veteran has not worked since 1995. Although it
has been
noted that he also can not work as a result of a heart
condition, examiners over the period of 1996 to 1999 have
indicated that he has severe industrial impairment associated
with his PTSD, and the veteran has consistently reported
episodes of explosive anger with little provocation. The
record further reveals that the veteran has experienced
numerous additional symptoms that are attributable to PTSD.
The veteran has also consistently reported feelings of
estrangement and in June 1998, the more recent VA examiner
noted that the veteran described symptoms as significantly
interfering with his abilities to adequately interact with
others and adequately deal with normal daily stress. The
June 1998 examiner further noted that the symptoms described
by the veteran, including anhedonia, resulted in reduced
reliability and productivity to the point where he would be
considered totally occupationally impaired with regard to
being able to consistently maintain employment, and assigned
the veteran a GAF of 50.
noted that he also can not work as a result of a heart
condition, examiners over the period of 1996 to 1999 have
indicated that he has severe industrial impairment associated
with his PTSD, and the veteran has consistently reported
episodes of explosive anger with little provocation. The
record further reveals that the veteran has experienced
numerous additional symptoms that are attributable to PTSD.
The veteran has also consistently reported feelings of
estrangement and in June 1998, the more recent VA examiner
noted that the veteran described symptoms as significantly
interfering with his abilities to adequately interact with
others and adequately deal with normal daily stress. The
June 1998 examiner further noted that the symptoms described
by the veteran, including anhedonia, resulted in reduced
reliability and productivity to the point where he would be
considered totally occupationally impaired with regard to
being able to consistently maintain employment, and assigned
the veteran a GAF of 50.
In March 1999, the same VA examiner reiterated that
the
veteran described symptoms of PTSD and depression that she
had previously commented on as being severe enough to result
in the veteran's total occupational disability with regard to
maintaining employment consistently, and a GAF of 50 was
again assigned.
veteran described symptoms of PTSD and depression that she
had previously commented on as being severe enough to result
in the veteran's total occupational disability with regard to
maintaining employment consistently, and a GAF of 50 was
again assigned.
While the Board recognizes that from October 1996
to April
1998 there is some evidence of improvement of the veteran's
PTSD symptoms with Prozac and corresponding temporary GAF
scores of as high as 70 in April 1998, an inspection of the
veteran's overall treatment record during this period reveals
that the veteran continued to complain of various symptoms
associated with his PTSD, and that although a GAF of 60 was
assigned following VA examination in December 1997, the
examiner still noted that the veteran described symptoms of
PTSD and depression that did significantly interfere with his
abilities to adequately interact with others, and that his
symptoms of PTSD continued to persist. The Board also notes
that Vet Center treatment summaries from August and October
1997 reflect GAF scores of 45.
1998 there is some evidence of improvement of the veteran's
PTSD symptoms with Prozac and corresponding temporary GAF
scores of as high as 70 in April 1998, an inspection of the
veteran's overall treatment record during this period reveals
that the veteran continued to complain of various symptoms
associated with his PTSD, and that although a GAF of 60 was
assigned following VA examination in December 1997, the
examiner still noted that the veteran described symptoms of
PTSD and depression that did significantly interfere with his
abilities to adequately interact with others, and that his
symptoms of PTSD continued to persist. The Board also notes
that Vet Center treatment summaries from August and October
1997 reflect GAF scores of 45.
In addition, although the Board also recognizes
that the
September 1996 VA examiner indicated that the veteran had
depression which was not within the realm of depression from
PTSD, the more recent VA examiner's comments in her March
1999 may be reasonably interpreted to find that there were no
AXIS I or AXIS II diagnoses that she finds to be unrelated to
the veteran's PTSD. Consequently, the Board finds that all
or most of the veteran's symptoms on which the GAF scores are
based should be attributable to his service-connected PTSD.
While this might seem to conflict with the earlier VA
opinion, the Board notes that the March 1999 examiner has now
examined the veteran on several different occasions since
December 1997, and the Board therefore finds that this
examiner's opinion is entitled to greater weight based on her
greater familiarity with the veteran's case. Moreover,
although the September 1996 examiner found depression
unrelated to PTSD, his opinion implies that there were also
symptoms of depression that were related to PTSD.
Accordingly, the 45-50 GAF may have warranted only a slight
increase when factoring in the level of disability associated
with depression unrelated to PTSD.
September 1996 VA examiner indicated that the veteran had
depression which was not within the realm of depression from
PTSD, the more recent VA examiner's comments in her March
1999 may be reasonably interpreted to find that there were no
AXIS I or AXIS II diagnoses that she finds to be unrelated to
the veteran's PTSD. Consequently, the Board finds that all
or most of the veteran's symptoms on which the GAF scores are
based should be attributable to his service-connected PTSD.
While this might seem to conflict with the earlier VA
opinion, the Board notes that the March 1999 examiner has now
examined the veteran on several different occasions since
December 1997, and the Board therefore finds that this
examiner's opinion is entitled to greater weight based on her
greater familiarity with the veteran's case. Moreover,
although the September 1996 examiner found depression
unrelated to PTSD, his opinion implies that there were also
symptoms of depression that were related to PTSD.
Accordingly, the 45-50 GAF may have warranted only a slight
increase when factoring in the level of disability associated
with depression unrelated to PTSD.
In light of all of the evidence of record, the
Board finds
that the veteran is entitled to a 100 percent disability
evaluation effective from May 1996. The evidence of record
indicates very little, if any, hobbies or outside interests,
and although he maintains a relationship with his current
spouse and his daughter, the veteran reports no friends, and
that he experiences consistent difficulty sleeping,
hypervigilance, easy irritability, and is distrustful of
others. In fact, the veteran frequently notes that he has a
guard dog and maintains an automatic weapon in order to
protect himself. Thus, although the veteran's PTSD currently
may not be productive of totally incapacitating
psychoneurotic symptoms bordering on gross repudiation of
reality with disturbed thought or behavioral processes, the
evidence does suggest that he is virtually isolated from the
rest of the community. See 38 C.F.R. § 4.132, Diagnostic
Code 9411.
that the veteran is entitled to a 100 percent disability
evaluation effective from May 1996. The evidence of record
indicates very little, if any, hobbies or outside interests,
and although he maintains a relationship with his current
spouse and his daughter, the veteran reports no friends, and
that he experiences consistent difficulty sleeping,
hypervigilance, easy irritability, and is distrustful of
others. In fact, the veteran frequently notes that he has a
guard dog and maintains an automatic weapon in order to
protect himself. Thus, although the veteran's PTSD currently
may not be productive of totally incapacitating
psychoneurotic symptoms bordering on gross repudiation of
reality with disturbed thought or behavioral processes, the
evidence does suggest that he is virtually isolated from the
rest of the community. See 38 C.F.R. § 4.132, Diagnostic
Code 9411.
Going further, the veteran has not worked since
1995, and his
psychiatric symptomatology has worsened over the years.
Moreover, he has been assessed as totally unemployable by the
more recent VA examiner after a comprehensive evaluation.
The Board further notes that the same examiner made the same
assessment in June 1998, and that this examiner previously
noted significant impairment in her initial examination in
December 1997. In addition, as she explained more recently
in December 1997, this assessment was based solely on the
veteran's PTSD. Therefore, the Board is also persuaded that
the veteran's PTSD alone, when viewed longitudinally, renders
him demonstrably unable to obtain or retain employment.
Accordingly, a 100 percent rating is in order. See 38 C.F.R.
§ 4.132, Diagnostic Code 9411. See also Johnson v. Brown,
supra.
psychiatric symptomatology has worsened over the years.
Moreover, he has been assessed as totally unemployable by the
more recent VA examiner after a comprehensive evaluation.
The Board further notes that the same examiner made the same
assessment in June 1998, and that this examiner previously
noted significant impairment in her initial examination in
December 1997. In addition, as she explained more recently
in December 1997, this assessment was based solely on the
veteran's PTSD. Therefore, the Board is also persuaded that
the veteran's PTSD alone, when viewed longitudinally, renders
him demonstrably unable to obtain or retain employment.
Accordingly, a 100 percent rating is in order. See 38 C.F.R.
§ 4.132, Diagnostic Code 9411. See also Johnson v. Brown,
supra.
II. Entitlement to Service Connection for Cardiovascular
Disease, Status Post Myocardial Infarction and CABG, and
Hypertension, as Secondary to Service-connected PTSD.
Background
Service connection may be established for a
disability
incurred in or aggravated by active service. 38 U.S.C.A. §
1110 (West 1991).
incurred in or aggravated by active service. 38 U.S.C.A. §
1110 (West 1991).
Service connection may be granted for any disease
diagnosed
after discharge, when all the evidence, including that
pertinent to service, establishes that the disease was
incurred in service. 38 C.F.R. § 3.303(d) (1999).
after discharge, when all the evidence, including that
pertinent to service, establishes that the disease was
incurred in service. 38 C.F.R. § 3.303(d) (1999).
Service connection may be granted for a disorder
which is
proximately due to or the result of a service-connected
disability. 38 C.F.R. § 3.310(a).
proximately due to or the result of a service-connected
disability. 38 C.F.R. § 3.310(a).
In Allen v. Brown, 7 Vet. App. 439 (1995), the
United States
Court of Appeals for Veterans Claims (known as the United
States Court of Veterans Appeals prior to March 1, 1999,
hereafter "the Court") held that the term "disability", as
used in 38 U.S.C.A. § 1110, refers to impairment of earning
capacity and that such definition mandates that any
additional impairment of earning capacity resulting from an
already service-connected disability, regardless of whether
or not the additional impairment is itself a separate disease
or injury caused by the service-connected disability, shall
be service-connected. Thus, pursuant to 38 U.S.C.A. § 1110
and 38 C.F.R. § 3.310(a), when aggravation of a veteran's
nonservice-connected disorder is proximately due to or the
result of a service-connected disability, such veteran shall
be compensated for the degree of disability, but only that
degree over and above the degree of disability existing prior
to the aggravation.
Court of Appeals for Veterans Claims (known as the United
States Court of Veterans Appeals prior to March 1, 1999,
hereafter "the Court") held that the term "disability", as
used in 38 U.S.C.A. § 1110, refers to impairment of earning
capacity and that such definition mandates that any
additional impairment of earning capacity resulting from an
already service-connected disability, regardless of whether
or not the additional impairment is itself a separate disease
or injury caused by the service-connected disability, shall
be service-connected. Thus, pursuant to 38 U.S.C.A. § 1110
and 38 C.F.R. § 3.310(a), when aggravation of a veteran's
nonservice-connected disorder is proximately due to or the
result of a service-connected disability, such veteran shall
be compensated for the degree of disability, but only that
degree over and above the degree of disability existing prior
to the aggravation.
A determination of service connection requires a
finding of
the existence of a current disability and a determination of
a relationship between that disability and an injury or
disease incurred in service. Watson v. Brown, 4 Vet. App.
309, 314 (1993).
the existence of a current disability and a determination of
a relationship between that disability and an injury or
disease incurred in service. Watson v. Brown, 4 Vet. App.
309, 314 (1993).
The Court has also held that a determination with
regard to
entitlement to service connection must be made upon a review
of the entire evidentiary record including thorough and
comprehensive examinations that are representative of the
entire clinical picture. Brown v. Brown, 5 Vet. App. 413
(1993).
entitlement to service connection must be made upon a review
of the entire evidentiary record including thorough and
comprehensive examinations that are representative of the
entire clinical picture. Brown v. Brown, 5 Vet. App. 413
(1993).
In this, and in other cases, only independent
medical
evidence may be considered to support Board findings. If the
medical evidence of record is insufficient, or, in the
opinion of the Board, of doubtful weight or credibility, the
Board is always free to supplement the record by seeking an
advisory opinion, ordering a medical examination or citing
recognized medical treatises in its decisions that clearly
support its ultimate conclusions. However, it is not free to
substitute its own judgment for that of such an expert. See
Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991).
evidence may be considered to support Board findings. If the
medical evidence of record is insufficient, or, in the
opinion of the Board, of doubtful weight or credibility, the
Board is always free to supplement the record by seeking an
advisory opinion, ordering a medical examination or citing
recognized medical treatises in its decisions that clearly
support its ultimate conclusions. However, it is not free to
substitute its own judgment for that of such an expert. See
Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991).
Moreover, it is the duty of the Board as the fact
finder to
determine credibility of the testimony and other lay
evidence. See Culver v. Derwinski, 3 Vet. App. 292, 297
(1992).
determine credibility of the testimony and other lay
evidence. See Culver v. Derwinski, 3 Vet. App. 292, 297
(1992).
Lay persons are not competent to render testimony
concerning
medical causation. See Grottveit v. Brown, 5 Vet. App. 91, 93
(1993). Service connection may be established through
competent lay evidence, not medical records alone. Horowitz
v. Brown, 5 Vet. App. 217 (1993). But a lay witness is not
capable of offering evidence requiring medical knowledge.
Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992).
medical causation. See Grottveit v. Brown, 5 Vet. App. 91, 93
(1993). Service connection may be established through
competent lay evidence, not medical records alone. Horowitz
v. Brown, 5 Vet. App. 217 (1993). But a lay witness is not
capable of offering evidence requiring medical knowledge.
Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992).
The Board has the duty to assess the credibility
and weight
to be given the evidence. Wilson v. Derwinski, 2 Vet. App.
614, 618 (1992) (quoting Wood v. Derwinski, 1 Vet. App. 190,
193 (1991), reconsideration denied per curiam, 1 Vet. App.
406 (1991)).
to be given the evidence. Wilson v. Derwinski, 2 Vet. App.
614, 618 (1992) (quoting Wood v. Derwinski, 1 Vet. App. 190,
193 (1991), reconsideration denied per curiam, 1 Vet. App.
406 (1991)).
Where there is an approximate balance of positive
and
negative evidence regarding the merits of an issue material
to the determination of the matter, the benefit of the doubt
in resolving each issue shall be given to the claimant.
38 U.S.C.A. § 5107(b).
negative evidence regarding the merits of an issue material
to the determination of the matter, the benefit of the doubt
in resolving each issue shall be given to the claimant.
38 U.S.C.A. § 5107(b).
Service medical records do not reflect complaints,
treatments, or findings of any acquired psychiatric disorder,
including PTSD, hypertension, or cardiovascular disorder,
although the veteran complained of chest wall pain in January
and March 1968, and noted a history of shortness of breath at
the time of separation from service in May 1969. Blood
pressure at entrance was noted to be 130/68, and at
separation, 128/74.
treatments, or findings of any acquired psychiatric disorder,
including PTSD, hypertension, or cardiovascular disorder,
although the veteran complained of chest wall pain in January
and March 1968, and noted a history of shortness of breath at
the time of separation from service in May 1969. Blood
pressure at entrance was noted to be 130/68, and at
separation, 128/74.
Private hospital records from May 1994 reflect that
the
veteran was admitted for an acute anterior myocardial
infarction for which he underwent surgery. Cardiac risk
factors included many years of smoking, a history of
hypertension, elevated cholesterol and a positive family
history of coronary artery disease (CAD).
veteran was admitted for an acute anterior myocardial
infarction for which he underwent surgery. Cardiac risk
factors included many years of smoking, a history of
hypertension, elevated cholesterol and a positive family
history of coronary artery disease (CAD).
Private outpatient treatment records for the period
of May
1994 to February 1996 reflect periodic postoperative coronary
evaluations by Dr. W. and Dr. L. following the veteran's May
1994 heart surgery, and that in June 1995, the veteran
complained of chest pain and there was an assessment which
included unstable angina. Thereafter, the veteran was again
evaluated for coronary symptoms by Dr. W. in July 1995,
September 1995, November 1995, December 1995, and February
1996.
1994 to February 1996 reflect periodic postoperative coronary
evaluations by Dr. W. and Dr. L. following the veteran's May
1994 heart surgery, and that in June 1995, the veteran
complained of chest pain and there was an assessment which
included unstable angina. Thereafter, the veteran was again
evaluated for coronary symptoms by Dr. W. in July 1995,
September 1995, November 1995, December 1995, and February
1996.
A May 1996 Social Security Administration
determination
reflects that the veteran's severe impairment was as a
consequence of conditions which included CAD, status post
CABG, extensive anterolateral myocardial infarction,
congestive heart failure, and hypertension.
reflects that the veteran's severe impairment was as a
consequence of conditions which included CAD, status post
CABG, extensive anterolateral myocardial infarction,
congestive heart failure, and hypertension.
A June 1996 treatment summary from the Vet Center
in Fresno,
California reflects that the veteran reported that
hypertension was first diagnosed in 1990.
California reflects that the veteran reported that
hypertension was first diagnosed in 1990.
VA medical examinations in June and September 1996
revealed
that the veteran complained of the development of fatigue
since his heart attack in 1994. It was also noted that the
veteran had hypertension three to four years previously for
which he was treated.
that the veteran complained of the development of fatigue
since his heart attack in 1994. It was also noted that the
veteran had hypertension three to four years previously for
which he was treated.
Following the filing of his claim for service
connection for
a heart condition as secondary to PTSD in May 1996, the
veteran provided a letter in September 1996, in which he
provided medical authority that supported the proposition
that physiological effects linked with stress included
hypertension and heart disease.
a heart condition as secondary to PTSD in May 1996, the
veteran provided a letter in September 1996, in which he
provided medical authority that supported the proposition
that physiological effects linked with stress included
hypertension and heart disease.
VA PTSD examination in September 1996 revealed a
diagnosis
that included moderately severe PTSD.
that included moderately severe PTSD.
VA outpatient and Vet Center records for the period
of
September 1996 to November 1998 reflect period treatment for
the veteran's PTSD.
September 1996 to November 1998 reflect period treatment for
the veteran's PTSD.
A July 1997 private medical statement from
cardiologist, Dr.
W., indicates that the veteran's PTSD "has been a
contributory factor to his coronary artery disease."
W., indicates that the veteran's PTSD "has been a
contributory factor to his coronary artery disease."
An August 1997 private medical statement from Dr.
N. reflects
that the veteran "suffers from PTSD and this may well have
contributed to his hypertension and coronary artery
disease." Dr. N. went on to state that "[t]hese most
likely would be due to chronic stress and anxiety," and a
notation at the bottom of the statement reflects that this
doctor was the veteran's attending psychiatrist at the
Fresno, California VA medical center.
that the veteran "suffers from PTSD and this may well have
contributed to his hypertension and coronary artery
disease." Dr. N. went on to state that "[t]hese most
likely would be due to chronic stress and anxiety," and a
notation at the bottom of the statement reflects that this
doctor was the veteran's attending psychiatrist at the
Fresno, California VA medical center.
An August 1997 private medical statement from Dr.
L.
indicates that the veteran "has significant ischemic
cardiomyopathy with ejection fraction of 20 to 25 percent,
which is a significant decrease in ventricular function of a
least 50 percent of normal." Also, Dr. L. went on to
indicate that "it is known that stress disorders can
contribute to hypertension in individuals."
indicates that the veteran "has significant ischemic
cardiomyopathy with ejection fraction of 20 to 25 percent,
which is a significant decrease in ventricular function of a
least 50 percent of normal." Also, Dr. L. went on to
indicate that "it is known that stress disorders can
contribute to hypertension in individuals."
VA medical examination in November 1997 indicated a
history
of hypertension beginning in 1993. VA PTSD examination in
December 1997 revealed a diagnosis which included PTSD.
of hypertension beginning in 1993. VA PTSD examination in
December 1997 revealed a diagnosis which included PTSD.
VA medical examination in February 1998 revealed
that the
veteran had a history which included proven hypertension and
CAD. It was also noted that the veteran was status post
myocardial infarction and that he had recently developed
glucose intolerance. The veteran reported hypertension for
the previous six years, noting that he had initially avoided
disclosure of high readings to his family physician as he was
concerned that this would jeopardize his occupation as a
truck driver. The veteran believed that his hypertension
required medication beginning in 1993. After summarizing
records both before and after the veteran's May 1994 heart
surgery, the examiner noted the veteran's additional history
of cigarette smoking and family history of CABG. The
diagnoses included CAD, hyperlipidemia, hypertension, tobacco
use, glucose intolerance, history of substance abuse, obesity
and PTSD.
veteran had a history which included proven hypertension and
CAD. It was also noted that the veteran was status post
myocardial infarction and that he had recently developed
glucose intolerance. The veteran reported hypertension for
the previous six years, noting that he had initially avoided
disclosure of high readings to his family physician as he was
concerned that this would jeopardize his occupation as a
truck driver. The veteran believed that his hypertension
required medication beginning in 1993. After summarizing
records both before and after the veteran's May 1994 heart
surgery, the examiner noted the veteran's additional history
of cigarette smoking and family history of CABG. The
diagnoses included CAD, hyperlipidemia, hypertension, tobacco
use, glucose intolerance, history of substance abuse, obesity
and PTSD.
The February 1998 VA cardiovascular examiner
commented that
the veteran had extensive artery disease and was status post
myocardial infarction and had been revascularized by CABG
procedure. The veteran was found to be functionally a New
York Heart Association Class III and appeared to have
benefited by his medial regime. The examiner went on to
comment that while the veteran's PTSD might at times have
influenced the expression of his coronary disease, the
etiology of his heart disease was related to atherosclerosis,
which had chiefly been influenced by hyperlipidemia,
hypertension, and tobacco use. It was also noted that family
history also indicated a strong genetic pool which further
added risk for the veteran's disease.
the veteran had extensive artery disease and was status post
myocardial infarction and had been revascularized by CABG
procedure. The veteran was found to be functionally a New
York Heart Association Class III and appeared to have
benefited by his medial regime. The examiner went on to
comment that while the veteran's PTSD might at times have
influenced the expression of his coronary disease, the
etiology of his heart disease was related to atherosclerosis,
which had chiefly been influenced by hyperlipidemia,
hypertension, and tobacco use. It was also noted that family
history also indicated a strong genetic pool which further
added risk for the veteran's disease.
In March 1999, the veteran provided a newspaper
article that
discussed the subject the effect of mental stress on the
heart. A March 1999 VA PTSD examination again revealed a
diagnosis that included PTSD.
discussed the subject the effect of mental stress on the
heart. A March 1999 VA PTSD examination again revealed a
diagnosis that included PTSD.
Analysis
At the outset, the Board notes that in view of the
multiple
medical statements by treating clinical physician which offer
a nexus between the veteran's PTSD and his cardiovascular
disorder, status post myocardial infarction and CABG, and
hypertension, the Board has found that under the case law,
the veteran's claim must be regarded as well grounded under
38 U.S.C.A. § 5107(a) (West 1991).
medical statements by treating clinical physician which offer
a nexus between the veteran's PTSD and his cardiovascular
disorder, status post myocardial infarction and CABG, and
hypertension, the Board has found that under the case law,
the veteran's claim must be regarded as well grounded under
38 U.S.C.A. § 5107(a) (West 1991).
It is not claimed or otherwise shown that
cardiovascular
disease or hypertension was present in or soon after
separation from service. The contentions advanced in this
case are related solely to an associative relationship
between PTSD and cardiovascular disease, status post
myocardial infarction and CABG, and hypertension.
disease or hypertension was present in or soon after
separation from service. The contentions advanced in this
case are related solely to an associative relationship
between PTSD and cardiovascular disease, status post
myocardial infarction and CABG, and hypertension.
The Board also notes that the veteran's
service-connected
PTSD is now rated as 100 percent disabling, reflective of
profound impairment from 1996.
PTSD is now rated as 100 percent disabling, reflective of
profound impairment from 1996.
In this case, there is also evidence that the
veteran
developed hypertension at least several years prior to his
myocardial infarction of May 1994, and that he was under
medication for this condition for some period of time prior
to March 1994.
developed hypertension at least several years prior to his
myocardial infarction of May 1994, and that he was under
medication for this condition for some period of time prior
to March 1994.
The opinions that support some relationship between
cardiovascular disease, status post myocardial infarction and
CABG, hypertension, and PTSD fall into two categories. The
first involves opinions from mental health professionals; the
second involves opinions from medical professionals
specializing in cardiovascular disease. While the Board has
not dismissed the views of the mental health professionals
out of hand, this claim is for service connection for an
organic disease. Therefore, the Board finds that the medical
professionals whose specialty is that organic disease possess
the most pertinent expertise. The record shows the medical
professionals specializing in, or with expertise in organic
cardiovascular disease are divided as to the existence of a
nexus between the service connected psychiatric disability
and the organic disability. The mental health professionals
who have offered an opinion have either stated that there is
a direct causal relationship, or that the service connected
disability aggravates the independently existing organic
disability. In fact, the only opinion against the claim is
by the February 1998 examiner. In this regard, the Board
finds that a close inspection of this examiner's opinion
reveals that the physician prefaces his opinion by stating
that the veteran's PTSD might at times have influenced the
expression of his coronary disease, thus implying the
possibility of aggravation. In addition, the physician went
on to conclude that the etiology of the veteran's heart
disease was atherosclerosis influenced by hyperlipidemia,
hypertension, and tobacco use, without further commenting on
whether hypertension was related to the veteran's PTSD.
Thus, the opinion does not squarely rebut the view of at
least some of the veteran's private physicians that there is
a causal relationship between hypertension and PTSD. While
the Board is impressed by the February 1998 examiner's
opinion, it can not find on this record that this opinion is
entitled to so much weight or is so comprehensive that it
overcomes all the other evidence of record. Under the
benefit of the doubt doctrine, if there is an approximate
balance of evidence for and against the claim, the veteran
prevails as a matter of law. That is the case here.
cardiovascular disease, status post myocardial infarction and
CABG, hypertension, and PTSD fall into two categories. The
first involves opinions from mental health professionals; the
second involves opinions from medical professionals
specializing in cardiovascular disease. While the Board has
not dismissed the views of the mental health professionals
out of hand, this claim is for service connection for an
organic disease. Therefore, the Board finds that the medical
professionals whose specialty is that organic disease possess
the most pertinent expertise. The record shows the medical
professionals specializing in, or with expertise in organic
cardiovascular disease are divided as to the existence of a
nexus between the service connected psychiatric disability
and the organic disability. The mental health professionals
who have offered an opinion have either stated that there is
a direct causal relationship, or that the service connected
disability aggravates the independently existing organic
disability. In fact, the only opinion against the claim is
by the February 1998 examiner. In this regard, the Board
finds that a close inspection of this examiner's opinion
reveals that the physician prefaces his opinion by stating
that the veteran's PTSD might at times have influenced the
expression of his coronary disease, thus implying the
possibility of aggravation. In addition, the physician went
on to conclude that the etiology of the veteran's heart
disease was atherosclerosis influenced by hyperlipidemia,
hypertension, and tobacco use, without further commenting on
whether hypertension was related to the veteran's PTSD.
Thus, the opinion does not squarely rebut the view of at
least some of the veteran's private physicians that there is
a causal relationship between hypertension and PTSD. While
the Board is impressed by the February 1998 examiner's
opinion, it can not find on this record that this opinion is
entitled to so much weight or is so comprehensive that it
overcomes all the other evidence of record. Under the
benefit of the doubt doctrine, if there is an approximate
balance of evidence for and against the claim, the veteran
prevails as a matter of law. That is the case here.
III. Entitlement to a Total Disability Rating for
Compensation Purposes on the Basis of Individual
Unemployability Due to Service-connected Disabilities.
Background
The Secretary shall decide all questions of law and
fact
necessary to a decision by the Secretary under a law that
affects the provision of benefits by the Secretary to
veterans or the dependents or survivors of veterans.
38 U.S.C.A. § 511(a).
necessary to a decision by the Secretary under a law that
affects the provision of benefits by the Secretary to
veterans or the dependents or survivors of veterans.
38 U.S.C.A. § 511(a).
All questions in a matter which under sections
511(a) of this
title is subject to decision by the Secretary shall be
subject to one review on appeal to the Secretary. Final
decisions on such appeals shall be made by the Board.
Decisions of the Board shall be based on the entire record in
the proceeding and upon consideration of all evidence and
material of record and applicable provisions of law and
regulation. 38 U.S.C.A. § 7104(a).
title is subject to decision by the Secretary shall be
subject to one review on appeal to the Secretary. Final
decisions on such appeals shall be made by the Board.
Decisions of the Board shall be based on the entire record in
the proceeding and upon consideration of all evidence and
material of record and applicable provisions of law and
regulation. 38 U.S.C.A. § 7104(a).
The Board of Veterans' Appeals may dismiss any
appeal which
fails to allege error of fact or law in the determination
being appealed. 38 U.S.C.A. § 7105.
fails to allege error of fact or law in the determination
being appealed. 38 U.S.C.A. § 7105.
Analysis
Earlier in this decision the Board granted
entitlement to a
total schedular rating for the veteran's service-connected
PTSD.
total schedular rating for the veteran's service-connected
PTSD.
The above determination in essence has rendered
moot the
remaining issue of entitlement to a total disability rating
based on individual unemployability due to service-connected
disabilities, since a total rating based on individual
unemployability due to service-connected disabilities is
assignable only if the schedular rating is less than total.
38 C.F.R. § 4.16 (1999). However, as noted previously in
this decision, the Board must provide reasons and bases to
support this disposition.
remaining issue of entitlement to a total disability rating
based on individual unemployability due to service-connected
disabilities, since a total rating based on individual
unemployability due to service-connected disabilities is
assignable only if the schedular rating is less than total.
38 C.F.R. § 4.16 (1999). However, as noted previously in
this decision, the Board must provide reasons and bases to
support this disposition.
In essence, with the grant of a total schedular
disability
rating for PTSD, there no longer exists any case or
controversy as to the disability rating. Entitlement to a
100 percent rating based on individual unemployability is
viewed as an intertwined issue since both bases of
entitlement would produce a 100 percent evaluation.
rating for PTSD, there no longer exists any case or
controversy as to the disability rating. Entitlement to a
100 percent rating based on individual unemployability is
viewed as an intertwined issue since both bases of
entitlement would produce a 100 percent evaluation.
Also, employability is a significant factor in the
schedular
rating criteria. The schedular 100 percent rating is the
greater benefit, however, as it is a prerequisite to other
benefits, particularly special monthly compensation, that are
not available where the total rating is based upon individual
unemployability. 38 U.S.C.A. § 1114 (West 1991 & Supp.
1999). Having resolved the veteran's claim on a schedular
basis and thereby having granted the maximum benefit, there
is no longer a question or controversy regarding the level of
disability at any time applicable to the period under review.
No greater benefit could be provided. Nor are any exceptions
to the mootness doctrine present. Thomas v. Brown, 9 Vet.
App. 269, 270 (1996); Hudgins v. Brown, 8 Vet. App. 365, 367-
68 (1995); Bond v. Derwinski, 2 Vet. App. 376, 377 (1992);
38 U.S.C.A. §§ 511, 7104, 7105; 38 C.F.R. § 20.101.
rating criteria. The schedular 100 percent rating is the
greater benefit, however, as it is a prerequisite to other
benefits, particularly special monthly compensation, that are
not available where the total rating is based upon individual
unemployability. 38 U.S.C.A. § 1114 (West 1991 & Supp.
1999). Having resolved the veteran's claim on a schedular
basis and thereby having granted the maximum benefit, there
is no longer a question or controversy regarding the level of
disability at any time applicable to the period under review.
No greater benefit could be provided. Nor are any exceptions
to the mootness doctrine present. Thomas v. Brown, 9 Vet.
App. 269, 270 (1996); Hudgins v. Brown, 8 Vet. App. 365, 367-
68 (1995); Bond v. Derwinski, 2 Vet. App. 376, 377 (1992);
38 U.S.C.A. §§ 511, 7104, 7105; 38 C.F.R. § 20.101.
ORDER
A 100 percent evaluation for PTSD is granted,
subject to the
legal criteria governing payment of monetary benefits.
legal criteria governing payment of monetary benefits.
Service connection for cardiovascular disease,
status post
myocardial infarction and CABG, and hypertension, as
secondary to service-connected PTSD, is granted.
myocardial infarction and CABG, and hypertension, as
secondary to service-connected PTSD, is granted.
The appeal for entitlement to a total disability
rating for
compensation based on individual unemployability due to
service-connected disabilities is dismissed.
compensation based on individual unemployability due to
service-connected disabilities is dismissed.
Richard B. Frank
Member, Board of Veterans' Appeals
##### END #####
July 6, 2000
In Reply Refer To: 216
Directors (00/21) Fast Letter 00-55
All VA Regional Offices and Centers
SUBJ: Health Care Eligibility for Veterans Awarded the Purple Heart
1. The attached VHA Directive outlines a recent change in policy as
mandated by Public Law 106-117, the Veterans Millennium Health Care
and Benefits Act, which places veterans awarded the Purple Heart in
enrollment category 3, and exempts those veterans from co-payment
requirements associated with the provision of hospital care and
outpatient medical service.
2. Prescription co-payments will continue to be charged to veterans
awarded a Purple Heart unless they meet the low-income exemption
criteria, are service connected 50 percent or greater or the
medication is for a service-connected condition.
3. This information should be shared with all employees who have
public contact and provide VA benefit information to veterans.
4. This letter self rescinds March 1, 2005.
/s/
Robert J. Epley, Director
Compensation and Pension Service
Enclosure
Department of Veteran Affairs
Veterans Health Administration
Washington, DC 20420 VHA DIRECTIVE 2000-006
Change 1
May 15, 2000
CHANGE IN THE ELIGIBILITY FOR CARE OF VETERANS AWARDED THE PURPLE
HEART
1. PURPOSE: Change 1 to the Veterans Health Administration (VHA)
Directive 2000-006 clarifies co-payment requirements under paragraph
3c and 3d for veterans awarded the Purple Heart.
2. POLICY: Public Law 106-117, the Veterans Millennium Health Care
and Benefits Act, which amended the law to place veterans awarded the
Purple Heart in enrollment priority group 3, and to exempt those
veterans from co-payment requirements associated with provision of
hospital care and outpatient medical services.
3. ACTION:
a. Veterans awarded the Purple Heart may submit appropriate
documentation (i.e., DD 214 annotating receipt of the Purple Heart, DD
215, official service records, and military orders of award) for
inclusion into the veteran's Consolidated Health Record (CHR) folder.
Health care facilities are also to fax these documents to the Health
Eligibility Center at (404) 235-1355. Note: A certificate of award,
in and of itself, will not suffice for verification purposes without
the submission of supporting documentation.
b. As an interim measure, the Health Eligibility Center will provide
each Department of Veterans Affairs (VA) health care facility with a
partial listing of Purple Heart recipients to assist facilities in
manually exempting these veterans from co-payment requirement
associated with hospital care and outpatient medical services. The
Office of Information (19) will develop software to capture data on
veterans awarded a Purple Heart and effect other changes in the VHA
information systems necessary to accommodate provisions to Public Law
106-117 relating to Purple Heart Award recipients.
c. Health care facilities must ensure that those veterans awarded a
Purple Heart who were previously, or would be, classified in
enrollment priority groups 4 through 7 are placed in enrollment
priority group 3 and not charged co-payments for their medical care.
d. Prescription co-payments will continue to be charged to veterans
awarded the Purple Heart unless they meet the low-income exemption
criteria, are service-connected 50 percent or greater or the
medication is for a service-connected condition.
e. Manual tracking is necessitated until Veterans Health Information
Systems and Technology Architecture (VistA) software modifications are
implemented to ensure these veterans are not inappropriately billed
medical care co-payment charges.
f. Veterans awarded the Purple Heart are to be reimbursed for any
medical care co-payments paid for VHA care provided on or after
November 30, 1999.
g. VHA officials must have verifiable evidence that veterans received
the Purple Heart before reimbursing any co-payments or changing
veterans' enrollment status.
4. REFERENCE: Public Law 106-117, dated November 30, 1999.
5. FOLLOW-UP RESPONSIBILITY: Health Administration Service (10C3) is
responsible for the content of this directive.
6. RESCISSION: This Change and VHA Directive 2000-006 will expire
March 1, 2005.
Thomas L. Garthwaite, M.D.
Deputy Under Secretary for Health
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