Citation Nr: 9822927 Decision Date: 07/29/98 Archive Date: 08/04/98 DOCKET NO. 97-01 925 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUES 1. Entitlement to compensation for a liver disorder under the provisions of 38 U.S.C.A. § 1151 (West 1991 & Supp. 1998). 2. Entitlement to compensation for drug dependency under the provisions of 38 U.S.C.A. § 1151. 3. Entitlement to an effective date earlier than May 23, 1993 for the award of a total rating based on individual unemployability due to service connected disabilities. REPRESENTATION Appellant represented by: Michael B. Staley, Attorney ATTORNEY FOR THE BOARD E. J. McCafferty, Counsel INTRODUCTION The veteran had active service from December 1953 to December 1960. The record shows that the veteran has not filed a current application for clothing allowance and has indicated that he has no intention of doing so. Thus, there is no claim for current clothing allowance at issue. In a May 1996 decision, the Board referred the issue of entitlement to clothing allowance to the RO. In November 1996, the RO furnished the veteran with an application for current clothing allowance. In December 1996, the veteran responded that he did not want a current clothing allowance, but rather clothing allowances dating back to the 1970s. In a January 1997 response, the RO furnished a copy of the regulatory criteria governing the awards of clothing allowances which require that a claim be filed within one year of August 1st of a year for a clothing allowance to be paid for that year. The veteran has advanced no arguments as to why the regulatory deadline for filing claims for a clothing allowance is not applicable to his retroactive claims. However, while the veteran’s claim for retroactive clothing allowances appears to lack legal merit on its face, the veteran has not been advised of the reasons and bases for the denial of this claim, provided an opportunity to respond thereto, nor has his claim been otherwise developed for appellate review at this time. In view of the foregoing, this issue is once again being referred to the RO for the necessary procedural development to prepare the issue for appellate review, if in order. The veteran also notes that he has been requesting copies of his medical records from the 1970s, but that copies of these records have not been provided to him by the RO. With respect to the current appellate issues, the Board notes that such early records, if available, would not be germane or material to the determinations in either the earlier effective date issue, which hinges on the date of claim for a total rating or the § 1151 issue which hinges on the demonstration of current additional disability. While it is unclear whether the records referenced and requested by the veteran are available, the RO should address the veteran’s request and either provide copies of the requested records to the veteran or explain to him why they are unavailable. Finally, the certified issue of entitlement to compensation for a liver disorder under 38 U.S.C.A. § 1151 is addressed in the remand portion of this decision. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he should be entitled to a total rating based on individual unemployability based on service connected disability from 1975 when he was found permanently and totally disabled for VA pension purposes. He also argues that he has been furnished medication by VA for service connected disability over the years and that as a result he has developed a drug dependency for which compensation should be granted under § 1151. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1998), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the record supports an effective date for the award of a total rating based on individual unemployability due to service connected disability retroactive to June 19, 1990. It is the further decision of the Board that the claim for compensation for drug dependency under the provisions of 38 U.S.C.A. § 1151 is not well grounded. FINDINGS OF FACT 1. The veteran was in receipt of a 10 percent rating for his service connected skin disability from the day following service discharge. 2. Effective in December 1974, the veteran was found to be permanently and totally disabled based primarily on the basis of nonservice-connected disability. At that time, his service connected skin disability continued to be rated as 10 percent disabling. 3. Subsequent rating actions continued the veteran’s rating at the 10 percent level. 4. In April 1988 the RO denied entitlement to an increased evaluation for the veteran’s service-connected skin disability. The veteran was notified of this determination that same month; he did not appeal and the decision became final. 5. The veteran next filed a claim for increase on June 19, 1990. 6. At a hearing on appeal in May 1991, the veteran’s representative contended that if the veteran’s claim for increase were granted, then a total rating should be considered. 7. A formal claim for a total rating based on individual unemployability was filed by the veteran in May 1993. 8. In June 1993 the RO increased the veteran’s rating for his service connected skin disability to the 50 percent level, effective from June 19, 1990, but denied a total rating. 9. In a May 1996 decision the Board found that the veteran’s service connected skin disability, classified as keratosis and psoriasis with depressive neurosis and anxiety, presented an unusual disability picture precluding substantially gainful employment. An effective date for the total rating was not assigned. 10. In May 1996 the RO implemented the Board decision and assigned a total rating with an effective date in May 1993, said to be the date of claim. 11. The proper effective date for a total rating based on individual unemployability due to service connected disability is the date of claim, June 19, 1990. 12. The claim for compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 for drug dependency is not supported by cognizable evidence showing that the claim is plausible or capable of substantiation. CONCLUSIONS OF LAW 1. The criteria for an effective date for an award of a total rating based on individual unemployability due to service- connected disability retroactive to June 19, 1990 have been met. 38 U.S.C.A. §§ 5107, 5110 (West 1991 & Supp. 1998); 38 C.F.R. § 3.400. (1997). 2. The claim for entitlement to compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 for drug dependency is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Entitlement to an effective date earlier than May 23, 1993 for the award of a total rating based on individual unemployability due to service-connected disabilities. Factual Background The essential facts with respect to this issue are set out above as findings of fact. The record shows that the veteran had been in receipt of a 10 percent rating for his service-connected skin disability from 1960. He also has a scar rated as noncompensable. The veteran was found entitled to pension benefits effective in 1974 based on nonservice-connected disability of the right leg rated 60 percent and his 10 percent service-connected disability. It is clear from the record that the pension award in 1974 was based primarily on nonservice-connected disability as reflected by the respective ratings. There was no claim for or showing that the veteran’s 10 percent service-connected disability precluded employment. The veteran continued to qualify for pension over the years and his service connected disability continued to be evaluated as 10 percent disabling. It was not until the 1990s that it was increased, first to 30 percent, then to 50 percent. The record shows that prior to the veteran’s most recent claim for increase in June 1990, he had last been denied a rating in excess of 10 percent by rating action in April 1988. The veteran was advised of the denial, did not appeal and the rating became final. Following this final rating decision, the veteran next submitted a claim for increase on June 19, 1990. It was in conjunction with this June 1990 claim for increase that the veteran’s rating was eventually raised to the 50 percent level and a total rating was granted. Criteria The effective date of an award based on a claim reopened after final adjudication (the 1988 rating action) is fixed in accordance with the facts found, but usually shall not be earlier than the date of receipt of application therefor. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. Analysis The Board finds initially that the veteran's claim is well grounded; that is, it is not inherently implausible. The Board also finds that the facts relevant to the issue on appeal have been properly developed and the statutory obligation of VA to assist the veteran in the development of his claim has been satisfied. 38 U.S.C.A. § 5107 (West 1991 & Supp. 1997). Initially, the Board would note that an award of VA pension benefits is based on consideration of both service-connected and nonservice-connected disabilities. In a claim for a total rating based on individual unemployability, only the veteran’s service-connected disabilities may be considered. In other words, for a total rating to be granted, as in this case, the record must show that employment is precluded solely by service-connected-disability. The Board has considered the veteran’s contention that he should be entitled to a total rating dating back to 1974-75, but the record in this case does not show that the veteran was entitled to more than a 10 percent rating for his service- connected skin disability from 1974 to 1990 and the evidence clearly did not show that it was of such severity as to preclude employment during that same period. The veteran was in receipt of a 10 percent rating over the years and there was a final rating decision in April 1988 wherein the RO denied a rating in excess of the assigned 10 percent. Subsequent to that final decision, the veteran reopened his claim with correspondence received by the RO on June 19, 1990. Then, in conjunction with the reopened claim, evidentiary material warranting a grant of increased rating and a total rating was subsequently received. The RO found the proper effective date for the increased rating of 50 percent to be in June 1990, but found the effective date for the total rating to be the date of the veteran’s formal claim for that benefit in May 1993. However, a review of the record shows that the veteran’s claim for increase filed in June 1990 would have encompassed a claim for a total rating. Further, the veteran’s representative raised the total rating issue at the May 1991 hearing. Since the increase in the severity of the veteran’s service connected disability is effective from June 19, 1990, and since this increase resulted in the veteran’s being precluded from employment by service connected disability, the proper effective date for the award of a total rating is also the June 19, 1990, date of claim after the final denial in 1988. For the foregoing reasons, the Board concludes that the record supports a grant of entitlement to an effective date of June 19, 1990, but not earlier, for assignment of a total rating based on individual unemployability due to service- connected disability. II. Entitlement to compensation for drug dependency under the provisions of 38 U.S.C.A. § 1151. Factual Background VA has treated the veteran over the years for his service connected disability. There is no indication by competent authority of record showing drug dependency as a result of VA treatment. The RO determined that the claim was not well grounded. Criteria The threshold question to be answered in this case is whether the appellant has presented a well-grounded claim, i.e., one, which is plausible. If he has not, the claim must fail and there is no further duty to assist in the development of the claim. 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet. App. 78 (1990). A well-grounded claim requires more than an allegation; the claimant must submit supporting evidence. Furthermore, the evidence must justify a belief by a fair and impartial individual that the claim is plausible. Tirpak v. Derwinski, 2 Vet. App. 609 (1992). As will be explained below, the Board finds that the claim for compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 for drug dependency is not well grounded. In Gardner v. Derwinski, 1 Vet. App. 584 (1991), the United States Court of Veterans Appeals (Court) invalidated 38 C.F.R. § 3.358(c)(3), on the grounds that that section of the regulation, which included an element of fault, did not properly implement the statute. The provisions of 38 C.F.R. § 3.358, excluding section (c)(3), remained valid. In 1997, fault was again returned to the regulatory criteria. In pertinent part, 38 U.S.C.A. § 1151 provides that where any veteran shall have suffered an injury, or an aggravation of an injury, as the result of hospitalization, medical or surgical treatment, not the result of such veteran's own willful misconduct, and such injury or aggravation results in additional disability or death, compensation shall be awarded in the same manner as if such disability or death were service connected. 38 C.F.R. § 3.358 and the regulation implementing that statute, provides, in pertinent part, that, in determining if additional disability exists, the beneficiary's physical condition immediately prior to the disease or injury in which the claim for compensation is based will be compared with the subsequent physical condition resulting from the disease or injury. As applied to medical or surgical treatment, the physical condition prior to the disease or injury will be the condition in which the specific medical or surgical treatment was designed to relieve. Compensation will not be payable for the continuance or natural progress of disease or injuries for which the hospitalization, etc., was authorized. In determining whether such additional disability resulting from a disease or injury or an aggravation of an existing disease or injury suffered as a result of hospitalization, medical, or surgical treatment, it will be necessary to show that the additional disability is actually the result of such disease or injury or an aggravation of such existing disease or injury and not merely coincidental therewith. 38 C.F.R. § 3.358(b), (c). The new 38 C.F.R. § 3.358(c)(3), provides in part: Compensation is not payable for the necessary consequences of medical or surgical treatment or examination properly administered with the express or implied consent of the veteran, or, in appropriate cases, the veteran's representative. "Necessary consequences" are those, which are certain to result from, or were intended to result from, the examination or medical or surgical treatment administered. "In order for a claim to be well grounded, there must be competent evidence of current disability (a medical diagnosis)... of incidence or aggravation of a disease or injury in service (lay or medical testimony), and a nexus between the in-service injury or disease and the current disability (medical evidence)." Caluza v. Brown, 7 Vet. App. 498 (1995). The Board points out that for the purposes of determining whether a claim is well grounded, it must presume the truthfulness of the evidence, "except when the evidentiary assertion is inherently incredible or when the fact asserted is beyond the competence of the person making the assertion." King v. Brown, 5 Vet. App. 19, 21 (1993). Thus, in the context of a claim under 38 U.S.C.A. § 1151, a well-grounded claim in this case would include medical evidence tending to show that drug dependency resulted from the use of medication prescribed by VA. Analysis The veteran contends that drug dependency is the result of the medication he was given by VA, but the record shows no relationship between the claimed condition and the prescribed medication other than the veteran’s contention. The veteran has offered no medical data or opinion to support his view that he currently has drug dependency, which resulted from VA prescribed medication. It is also not shown by medical data or opinion that the claimed condition actually exists. The Board has reviewed the record and finds no private or VA medical data or opinion to support the veteran’s claim that he currently has disability resulting from his VA treatment. Thus, the present record contains no competent medical evidence of the presence of any chronic disablement resulting from drug therapy as claimed by the veteran. The Board has considered the veteran's contentions with respect to the alleged relationship; however, for the veteran to say that there is a medical relationship is not probative, since he is not a medical expert and is not competent to provide evidence that a prescribed medication caused a specified additional disability. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992); Grottveit v. Brown, 5 Vet. App. 91 (1993). In the absence of medical evidence or opinion indicating that the medication prescribed by VA over the years caused additional disability claimed as drug dependency, the claim for compensation benefits pursuant to 38 U.S.C.A. § 1151 must be denied as not well grounded. ORDER An effective date for an award of a total rating based on individual unemployability due to service-connected disability retroactive to June 19, 1990 is granted, subject to the regulations governing the award of monetary benefits. The veteran not having submitted a well-grounded claim for compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 for drug dependency, the claim is denied. REMAND This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans’ Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1998) (Historical and Statutory Notes). In addition, VBA’s ADJUDICATION PROCEDURE MANUAL, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. The record shows that in 1992 the veteran developed some liver problems as a result of medication (Methotrexate) prescribed by VA. Work-up showed no chronic liver disease at that time. The veteran was taken off the medication. However, the veteran resumed taking the medication in 1996, and while he is being monitored, the current record is unclear as to whether any chronic liver problems representing additional disability have developed or if any such problems are merely transient. While the RO denied the veteran's claim on the basis that it was not well grounded in that it was not medically established that additional chronic disability had resulted from VA treatment, the clinical data of record suggest that liver problems first arose as a result of the medication, but it is unclear if they have reoccurred following resumption of the medication. The Board notes the finding that the claim is not well grounded is not based on any definitive medical opinion of record. Considering the veteran's assertions in light of the clinical data showing the onset of liver abnormalities associated with the use of the medication, the Board is of the opinion that the veteran may have a well- grounded claim and that further development of the evidence is necessary in order to make this determination. There is a need for an examination and a definitive medical opinion as to whether the veteran has additional disability of the liver resulting from VA prescribed medication. In view of the foregoing, the case is REMANDED for the following actions: 1. The RO should obtain copies of the veteran’s VA inpatient and outpatient treatment records dealing with the veterans use of Methotrexate from 1992 to the present, to include any consultations and liver studies associated therewith. Any material obtained should be associated with the claims folder. 2. The RO should arrange for a VA examination of the veteran by an appropriate specialist for the purpose of ascertaining the nature and extent of additional liver disability, if any, resulting from VA prescribed medication. The claims file and a separate copy of this remand must be made available to and reviewed by the examiner prior and pursuant to conduction and completion of the examination. Any further indicated special studies must be conducted. After examining the appellant, the physician should express opinions in response to the following questions: (a) Was there additional disability of the liver resulting from VA prescribed medication in 1992 or subsequently as claimed by the veteran? (b) Does the veteran currently have additional disability of the liver attributable to VA treatment? In rendering the opinion, the examiner should take into account the veteran's contentions with respect to the claimed relationship and the problems he attributes to the medication. The examiner should provide a complete rationale for any opinion expressed. 3. Thereafter, the RO should review the claims file to ensure that the above requested development is completed in full. In particular, the RO should review the requested examination report and required opinions to ensure that they are responsive to and in complete compliance with the directives of this remand and if they are not, the RO should implement corrective procedures. 4. After undertaking any development deemed appropriate in addition to that requested above, the RO should readjudicate the issue of whether or not the medication prescribed by VA has caused any additional liver disability pursuant to 38 U.S.C.A. § 1151 without regard to fault or accident. If the benefit sought on appeal is not granted to the veteran’s satisfaction, the RO should issue a supplemental statement of the case. A reasonable period of time for a response should be afforded. Thereafter, the case should be returned to the Board for final appellate review, if otherwise in order. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the veteran until he is notified by the RO. RONALD R. BOSCH Member, Board of Veterans' Appeals NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991 & Supp. 1998), a decision of the Board of Veterans’ Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans’ Judicial Review Act, Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The date that appears on the face of this decision constitutes the date of mailing and the copy of this decision that you have received is your notice of the action taken on your appeal by the Board of Veterans’ Appeals. Appellate rights do not attach to those issues addressed in the remand portion of the Board’s decision, because a remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1997). - 2 -