Citation Nr: 0213997
Decision Date: 10/09/02	Archive Date: 11/06/02

DOCKET NO. 00-02 285               DATE OCT 09, 2002

On appeal from the Department of Veterans Affairs Regional Office
in Louisville, Kentucky

THE ISSUE

1. Entitlement to an increased rating for post-traumatic stress
disorder (PTSD), currently evaluated as 50 percent disabling.

2. Entitlement to service connection for a disability manifested by
decreased libido, to include as secondary to exposure to Agent
Orange.

3. Entitlement to service connection for a disability manifested by
lethargy, to include as secondary to exposure to Agent Orange.

4. Entitlement to service connection for right ear hearing loss.

5. Entitlement to service connection for tinnitus.

6. Entitlement to a total disability rating based upon individual
unemployability due solely to service-connected disability.

REPRESENTATION

Appellant represented by: R. Edward Bates, Attorney at Law

ATTORNEY FOR THE BOARD

John R. Pagano, Counsel

INTRODUCTION

The veteran had active military service from December 1967 to
January 1970.

This matter arises from various rating decisions rendered by the
Department of Veterans Affairs (VA) Regional Office (RO) in
Louisville, Kentucky. The RO increased the disability rating for
the veteran's service-connected PTSD from 30 percent to 50 percent,
but not more, while denying entitlement to service connection for
the other disabilities on appeal. Following compliance with the
procedural requirements set forth in 38 U.S.C.A. 7105 (West 1991),
the case was forwarded to the Board of Veterans' Appeals (Board)
for appellate consideration.

In March 2001, the Board remanded the case to the RO for further
action and adjudication. The RO then returned the case to the Board
in April 2002 for further appellate consideration.

The issues of the veteran's entitlement to service connection for
decreased libido and lethargy secondary to Agent Orange exposure,
right ear hearing loss, and tinnitus will be addressed in greater
detail in the remand section of this decision. In addition, the
question of the appellant's entitlement to a total disability
rating based upon individual unemployability (TDIU) is
"inextricably intertwined" with these issues. See Harris v.
Derwinski, 1 Vet. App. 180, 183 (1991),. Accordingly, action on the
latter is deferred pending compliance with the remand's
instructions.

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FINDINGS OF FACT

1. All relevant evidence necessary for an equitable disposition of
the issue that is the subject of this decision has been obtained.

2. The veteran's PTSD is currently productive of subjective
complaints of anxiety, hostility, anxiety, flashbacks, and social
isolation. Objective findings include an appropriate affect, full
orientation, irregular deficits of cognition, memory, learning and
attention. The veteran otherwise is coherent and logical, and free
of auditory or visual hallucinations and suicidal or homicidal
ideation. His judgment is good, as is his ability for calculation,
abstraction, and general information.

3. The veteran's PTSD does not result in 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); spacial disorientation; neglect of personal
appearance and hygiene; difficulty in adapting to stressful
circumstances (work or a work-like setting); or an inability to
establish and maintain effective relationships.

CONCLUSION OF LAW

The criteria for entitlement to an evaluation in excess of 50
percent for PTSD have not been met. 38 U.S.C.A. 1155, 5103, 5103A,
5107 (West 1991 & Supp. 2001); 38 C.F.R. 3.321, 4.7, 4.126, 4.130,
Diagnostic Code (DC) 9411 (2001).

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REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. Preliminary Considerations

There has been a significant change in the law during the pendency
of this appeal. The Veterans Claims Assistance Act of 2000 (VCAA),
Pub. L. No. 106-475, 114 Stat. 2096 (2000), now codified at 38
U.S.C.A. 5100, 5102, 5103, 5103A, 5107 (West Supp. 2002),
eliminated the well-grounded claim requirements, expanded the duty
of VA to notify the appellant and representative, and enhanced its
duty to assist an appellant in developing the information and
evidence necessary to substantiate a claim.

VA issued regulations to implement the VCAA in August 2001. 66 Fed.
Reg. 45620 (Aug. 29, 2001) (to be codified as amended at 38 C.F.R.
3.159). The amendments were effective November 9, 2000, except for
the amendment to 38 C.F.R. 3.156(a) that is effective August 29,
2001.. Except for the amendment to 38 C.F.R. 3.156(a), the second
sentence of 38 C.F.R. 3.159(c), and 38 C.F.R. 3.159(c)(4)(iii), VA
stated that (the provisions of this rule merely implement the VCAA
and do not provide any rights other than those provided in the
VCAA.) 66 Fed. Reg. 45,629. Accordingly, in general where the
record demonstrates that the statutory mandates have been
satisfied, the regulatory provisions likewise are satisfied.

First, VA has a duty to notify the veteran and his representative
of any information and evidence necessary to substantiate and
complete a claim for VA benefits. See VCAA, 3(a), (codified at 38
U.S.C.A. 5102 and 5103). Second, VA has a duty to assist the
veteran in obtaining evidence necessary to substantiate his claim.
See VCAA, 3(a) (codified at 38 U.S.C.A. 5103A).

The United States Court of Appeals for Veterans Claims (Court) held
in Holliday v. Principi, 14 Vet. App. 280 (2001) that the VCAA was
potentially applicable to all

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claims pending on the date of enactment, citing Karnas v.
Derwinski, 1 Vet. App. 308 (1991). Subsequently, however, the
United States Court of Appeals for the Federal Circuit held that
Section 3A of the VCAA (covering the duty to notify and duty to
assist provisions of the VCAA) was not retroactively applicable to
decisions of the Board entered before the effective date of the
VCAA (Nov. 9, 2000). Bernklau v. Principi, No. 00-7122 (Fed. Cir.
May 20, 2002); see also Dyment v. Principi, No. 00-7075 (Fed. Cir.
April 24, 2002). In reaching this determination, the Federal
Circuit appears to reason that the VCAA may not apply to claims or
appeals pending on the date of enactment of the VCAA. However, the
Federal Circuit stated that it was not reaching that question. The
Board notes that VAOPGCPREC 11-2000 (Nov. 27, 2000) appears to hold
that the VCAA is retroactively applicable to claims pending on the
date of enactment. Further, the regulations issued to implement the
VCAA are to be applicable to "any claim for benefits received by VA
on or after November 9, 2000, the VCAA's enactment date, as well as
to any claim filed before that date but not decided by VA as of
that date." 66 Fed. Reg. 45,629 (Aug. 29, 2001). Precedent opinions
of the chief legal officer of the Department and regulations of the
Department are binding on the Board. 38 U.S.C.A. 7104(c) (West 1991
& Supp. 2002). For purposes of this determination, the Board will
assume that the VCAA is applicable to claims or appeals pending on
the date of enactment of the VCAA.

In the present case, the Board finds that VA's redefined duty to
assist has been fulfilled under the applicable statute and
regulations with regard to the issue that is the subject of this
decision. The veteran was issued a Statement of the Case (SOC) in
December 1999 and Supplemental Statements of the Case (SSOC) in
February and March 2002 that informed him of the evidence used in
conjunction with his claim, the pertinent laws and regulations, the
adjudicative action taken, and the reasons and bases for the
decision. Thus, he was provided adequate notice as to the evidence
needed to substantiate his claim. He also was given an opportunity
to submit additional evidence in support of his claim. Of note is
that the Board remanded this case for further action consistent
with the VCAA. The record indicates that all relevant facts have
been properly developed, and that all evidence

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necessary for equitable disposition of the issue of an increased
rating for PTSD has been obtained.

In the March 2001 remand, the Board requested that the veteran
provide the names, addresses and approximate dates of treatment
from all health care providers, both VA and private, who may
possess evidence pertinent to his claims, including his claim for
an increased rating for PTSD. In a January 2002 letter to the
veteran, the RO pointed out that he had not responded specifically
to the request sent through his attorney in November 2001 that he
identify the names, addresses and approximate dates of treatment
from all health care providers, both VA and private, who may
possess evidence pertinent to his claim. The RO advised the veteran
that he needed to provide a copy of the outstanding medical records
as requested in the Broad's remand. The Board finds that the VA's
duty to notify the veteran has thus been discharged. He was
adequately notified of the evidence needed to substantiate the
claim in the SOC, the SSOCs and the Board's remand. He has been
clearly advised of the evidence that is of record in these same
communications. He was clearly advised to identify any additional
pertinent records and failed to do so. He was reminded that he had
failed to respond to the request that he identify any further
pertinent information and he was advised that if there were
additional pertinent records he must submit them. Therefore, the
Board concludes that VA has no outstanding duty to inform the
appellant that any additional information or evidence is needed.
See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002) (requiring
VA to notify the veteran of what evidence he is required to provide
and what evidence VA would attempt to obtain). Moreover, based upon
the claimant's failure to identify the existence of any additional
pertinent evidence, the Board must conclude that the record is
complete. Thus, the obligation under the VCAA for VA to advise a
claimant as to any further division of responsibilities between VA
and the claimant in obtaining evidence is moot. Finally, in view of
the narrow questions of law and fact on which this decision turns,
the Board concludes that there is no reasonable possibility that
any further development could substantiate the claim.

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II. Increased Rating for PTSD

The veteran contends that his service-connected PTSD is more severe
than currently evaluated. In support, he asserts that this
disability severely interferes with his ability to work and to
socialize, and he cites his long-term unemployment in support
thereof.

Disability evaluations are determined by comparing a veteran's
current symptomatology with the criteria set forth in VA's Schedule
for Rating Disabilities which is based on average impairment in
earning capacity. See 38 C.F.R. 1155; 38 C.F.R. Part 4 (2001). When
a question arises as to which of two ratings applies under a
particular diagnostic code, the higher rating will be assigned if
the disability more closely approximates the criteria for the
higher rating. Otherwise, the lower rating will be assigned. 38
C.F.R. 4.7. In determining the level of current impairment, it is
essential that the disability be considered in the context of the
entire recorded history. 38 C.F.R. 4.1; Schafrath v. Derwinski, 1
Vet. App. 589, 592 (1991). However, although the history of the
disability at issue is an important consideration in accurately
evaluating its severity, of paramount importance are current
clinical findings. See Francisco v. Brown, 7 Vet. App. 55, 58
(1994).

In evaluating the veteran's service-connected PTSD, occupational
and social impairment with reduced reliability and productivity due
to such symptoms as: flattened affect; circumstantial,
circumlocutory, or stereo-typed 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 and maintaining effective work
and social relationships shall be evaluated as 50 percent
disabling.

To warrant a 70 percent disability rating, 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

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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); spacial
disorientation; neglect of personal appearance and hygiene;
difficulty in adapting to stressful circumstances (including work
or a work-like setting); inability to establish and maintain
effective relationships must be present. See 38 C.F.R. 4.130, DC
9411. It is within the foregoing context that the facts in this
case must be examined.

The facts are as follows. The veteran originally was diagnosed with
PTSD during a VA hospitalization in 1987. He complained both of
brooding about his experiences in the Republic of Vietnam, and
difficulty getting along with his wife. He was noted to be pleasant
and cooperative, but talked about his inability to handle stress at
home and his fear that he would harm his wife. He again was
hospitalized in early 1990 complaining of sleep pattern
disturbances manifested by nightmares, and increasing isolation
following his arrest for taking someone's truck without permission.
His speech was goal-directed, his emotion was slightly subdued, and
his affect was slightly constricted. He responded satisfactorily to
group and individual therapy and medication. Anxiety decreased, and
his sleep pattern improved.

The veteran then underwent a psychiatric examination by a private
physician acting on behalf of VA in January 1991. The veteran
complained of recurrent, intrusive, distressing recollections of
time spent in Vietnam, along with nightmares, flashback episodes,,
intense psychological distress and exposure to events which
resembled the aspects of Vietnam, a loss of interest in significant
activities, feelings of detachment and estrangement from others,
irritability and anger outbursts, difficulty in concentrating, and
hypervigilance with exaggerated startle response. The examiner
observed that the veteran was casually dressed with fair personal
hygiene, and was cooperative throughout the interview. The veteran
often stated that he was angry at the Government for trying to take
away his benefits and for not trying to assist him with his health
care needs. His speech was both relevant and coherent. His mood
appeared to be anxious with constricted affect. However, no
psychotic

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manifestations were evident other than the veteran's complaints of
flashbacks and visual hallucinations. The veteran stated that he
often thought about killing himself, but chose to remain alive
because of his children. He denied any homicidal ideation, and
indicated that he used marijuana in as much quantity as he was able
to get. His insight and judgment appeared to be average. His
intellectual functioning was estimated to fall in the average
range. He had a good store of general knowledge, and was oriented
in all three spheres. His memory for recent events appeared to be
intact; however, memory for remote events related to his tour in
the Republic of Vietnam was restricted. Calculation abilities,
abstract thinking skills, and reasoning were consistent with his
range of mental functioning. Chronic PTSD was diagnosed.

During a VA hospitalization shortly thereafter, the veteran again
complained of increased irritability and decreased sleep. The
attending physician observed that the veteran was polite, and that
his affect was appropriate. There was no looseness of association.
The veteran was well oriented and free of delusions and
hallucinations. The attending physician indicated that the veteran
was permanently disabled regarding his employment potential;
however, in reaching this conclusion, the physician considered the
veteran's dementia secondary to surgical removal of a nonservice-
connected subdural hematoma, a seizure disorder, and the veteran's
abuse of alcohol and marijuana, as well as PTSD, in reaching that
conclusion.

The veteran underwent a VA psychiatric examination in September
1995. He stated that he had not worked since undergoing a
craniotomy in 1972 for an intracerebral hematoma in the right
temporoparietal area. He again complained of difficulty sleeping,
flashbacks, and social isolation. He stated that he was easily
startled. The examiner observed that the veteran was a healthy-
appearing male who was well groomed and cooperative. His behavior
was appropriate and relaxed, and his speech was hesitant but not
pressured. His mood was somewhat anxious and euthymic. His affect
was appropriate and dysphoric. He denied hallucinations, but
complained of episodes of paranoia. His thought process was
hesitant and goal directed. He denied obsessions, compulsions, or
delusions. He claimed to have

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occasional passive suicidal ideation and no homicidal ideation. The
examiner observed that the veteran had severe deficits in long-term
memory, that he could perform simple calculations, but showed mild
deficits in short-term memory. He had great difficulty with serial
7 substractions. PTSD was diagnosed, and a Global Assessment of
Functioning (GAF) score of 50-60 was assigned.

The veteran then was hospitalized in the spring of 1997 at a VA
facility complaining of nightmares, flashbacks, intrusive thoughts,
isolation, guilt, anger, and difficulty controlling his temper. He
was observed to be nervous and depressed, and he exhibited
irritability and poor concentration, along with a constricted
affect. He also complained about periodic auditory hallucinations
about Vietnam. His speech was relevant and coherent, and no
suicidal or homicidal ideation was elicited. The veteran expressed
feelings of alienation with paranoid ideas, and complained of mood
swings. Upon discharge from the hospital, his condition had
stabilized, and he was free of any suicidal or homicidal ideation.
A GAF score of 36 was assigned.

The veteran then underwent a VA psychiatric evaluation in February
1998. He was friendly and cooperative, and the examiner observed
that he was a good historian despite having periodic difficulty
recalling specific details. He was well groomed, and was of
slightly above average intelligence. He was mildly anxious, but
there was no evidence of depression. His affect was appropriate to
the content of the .examination. He displayed a good sense of
humor, and his affect was not labile or bizarre. He described
himself as nervous. He was alert and oriented, and there was no
evidence of unusual psychomotor activity, gestures, or behavior.
Nor was there any deficit of cognition, memory, learning or
attention. His thought was coherent and logical without flight of
ideas or loose associations. There was no apparent suicidal or
homicidal ideation; nor did it appear that the veteran was
experiencing auditory or visual hallucinations, delusions,
paranoia, or psychotic thought. There was no deficit in his ability
to calculate or abstract, or in his general fund of information.
The veteran's judgment was good, as was his insight. He was rather
clear about the fact that he would like to obtain "a raise" in his
VA benefits, and emphasized that although he was aware that some
veterans may exaggerate their

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symptoms, he would not do so. Despite this, he displayed limited
cooperation and willingness to participate actively in the
psychological testing that the examiner attempted to undertake. The
examiner indicated that the veteran had significant problems
maintaining and sustaining attention, but that this was in all
likelihood associated with his history of subdural hematoma and
subsequent surgery. PTSD was diagnosed, and a GAF score of 51-60
was assigned. Although the examiner felt that the veteran's
psychiatric symptoms were chronic, he also indicated that they were
mild in nature.

The veteran last underwent a VA psychiatric evaluation in May 2000.
The examiner noted that the veteran arrived promptly for his
appointment, and that he was neatly groomed and dressed. He was
talkative, animated, lively, expansive, expressive, and
periodically became righteously indignant about his treatment by VA
and his experiences in Vietnam. He was friendly and cooperative,
but periodically had difficulty recalling specific details, in
particular those having to do with his hospitalization and
treatment for his subdural hematoma. He was mildly anxious and
dysphoric, but his affect was appropriate to the content of the
examination. He displayed a good sense of humor, and his affect was
not labile or bizarre. He complained of nervousness, tremulousness,
palpitations, shortness of breath, chest pain, anger, irritability,
worry, fear, tension, decreased memory and concentration,
flashbacks, and depression. He was alert and fully oriented, and
the examiner observed no unusual psychomotor activity, gestures, or
behavior. Some irregular patchy deficits of cognition, memory,
learning and attention were observed, but thought was coherent and
logical without flight of ideas or loose associations. No. suicidal
or homicidal ideation was apparent. There was no evidence that the
veteran was experiencing auditory or visual hallucinations,
delusions, paranoia, or psychotic thought. Nor was there any
deficit in his ability to calculate or abstract. His general fund
of information was intact, and there was no evidence of organicity.
The veteran's judgment was good, and he developed a good rapport
with the examining physician. PTSD was diagnosed, and a GAF score
of 41-50 was assigned; the examiner indicated that this represented
moderate symptomatology. This was so, despite the fact that the
veteran indicated that he

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spends his day at home, that he has no specific activities or
regular hobbies, and that he has no friends.

The foregoing indicates that the 50 percent disability rating
currently in effect accurately reflects symptomatology associated
with the veteran's PTSD. Although he has had difficulty in
establishing and maintaining effective social relationships, his
unemployment since 1972 has been attributed to a subdural hematoma
and residuals thereof following surgery in March of that year,
rather than to his PTSD. Although the veteran has complained of
homicidal and suicidal ideation, this has not been apparent during
various VA hospitalizations and examinations. The record does not
otherwise indicate that the veteran suffers from obsessional
rituals, intermittently illogical, obscure, or irrelevant speech,
near-continuous depression affecting his ability to function
independently, appropriately and effectively, or that he has
impaired impulse control, spacial disorientation, or that he
neglects his personal appearance and hygiene. Although he has more
recently been assigned a GAF score of 41-50 which, ordinarily,
indicates serious symptomatology (see American Psychiatric
Association's Diagnostic and Statistical Manual of Mental
Disorders, Fourth Edition (1994)), the examining physicians have
referred to the veteran's symptomatology as mild to moderate in
nature. Parenthetically, the Board notes that the veteran submitted
a statement regarding generally accepted vocational principles from
a private psychologist. However, these do not address how they
apply to the veteran in particular. Given that symptomatology
currently associated with the veteran's PTSD has been described by
physicians as being mild to moderate in nature, and because it does
not more nearly approximate that required for a higher rating, an
increased rating is not warranted under applicable schedular
criteria.

Alternatively, a rating in excess of that currently assigned for
the veteran's PTSD may be granted if it is demonstrated that this
disability presents such an exceptional or unusual disability
picture with such related factors as marked interference with
employment or frequent periods of hospitalization so as to render
impractical the application of the regular schedular standards. See
38 C.F.R. 3.321(b)(1). The veteran has been unemployed since 1972,
but there has been no evidence to suggest

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that this resulted from symptomatology associated with PTSD. Absent
evidence of either marked interference with employment or periods
of hospitalization more frequent than those reflected by the record
for the disability at issue, there is no basis to conclude that
this disability is more severe than that contemplated by the
aforementioned schedular provisions. Thus, the failure of the RO to
submit the case for consideration by the Under Secretary for
Benefits or the Director, Compensation and Pension Service, was not
unreasonable in this case. See Bagwell v. Brown, 9 Vet. App. 337,
339 (1996).

ORDER

Entitlement to an increased rating for PTSD is denied.

REMAND

In its March 2001 remand, the Board indicated the need for physical
examination of the veteran regarding his claims of entitlement to
service connection for disabilities manifested by decreased libido
and lethargy, to include as due to exposure to Agent Orange, right
ear hearing loss and tinnitus. This was not accomplished. Such
examination is necessary both to ensure the adequacy of the record
and to ensure that the appellant has been accorded due process of
law. See Stegall v. West, 11 Vet. App. 268 (1998). The Board
further notes that VAOPGCPREC 14-2001 points to the conclusion that
the Board must remand the case to the RO under these circumstances
because 38 C.F.R. 20.904 (2001) has not been modified to permit the
Board to vacate its own remand orders. Precedent opinions of the
chief legal officer of the department are binding on the Board. 38
U.S.C.A. 7104(c) (West 1991).

In view of the foregoing, the issues of the veteran's entitlement
to service connection for disabilities manifested by decreased
libido and lethargy, to include

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as due to exposure to Agent Orange, right ear hearing loss and
tinnitus are remanded to the RO for action as follows:

1. The veteran should be requested to undergo examinations by
physicians with the appropriate expertise to determine the etiology
and extent of any disability manifested by decreased libido and/or
lethargy. The claims file should be available to the examiners in
conjunction therewith. All indicated tests and studies should be
accomplished. The examiner(s) should indicate whether it is as
likely as not that decreased libido or lethargy is related either
to the veteran's military service, to include exposure to Agent .
Orange, or to his service-connected PTSD. A complete rationale
should be given for each opinion and conclusion expressed.

2. The veteran should be scheduled for a special audiological
examination. Again, the claims folder should be made available to
the examiner in conjunction with the examination. All indicated
tests and studies should be accomplished. The examiner should
indicate whether any right ear hearing loss observed and/or
tinnitus is as likely as not etiologically related to the veteran's
military service. A complete rationale should be given for each
opinion and conclusion expressed.

3. The RO should then readjudicate the issues. of the veteran's
entitlement to service connection for disabilities manifested by
decreased libido and lethargy, to include as due to exposure to
Agent Orange, right ear hearing loss and tinnitus. If any of the
benefits sought on appeal are not granted, the veteran and his

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representative should be furnished a supplemental statement of the
case. They should also be given the appropriate time period in
which to respond.

Thereafter, subject to appellate procedures, the case should be
returned to the Board for further appellate disposition. By this
remand, the Board intimates no opinion as to the appropriate
disposition of the claims.

Richard B. Frank 
Member, Board of Veterans' Appeals

IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you
what steps you can take if you disagree with our decision. We are
in the process of updating the form to reflect changes in the law
effective on December 27, 2001. See the Veterans Education and
Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976
(2001). In the meanwhile, please note these important corrections
to the advice in the form:

These changes apply to the section entitled "Appeal to the United
States Court of Appeals for Veterans Claims." (1) A "Notice of
Disagreement filed on or after November 18, 1988" is no longer
required to appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General Counsel. 

In the section entitled "Representation before VA," filing a
"Notice of Disagreement with respect to the claim on or after
November 18, 1988" is no longer a condition for an attorney-at-law
or a VA accredited agent to charge you a fee for representing you.

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