Citation Nr: 0303909 Decision Date: 03/06/03 Archive Date: 03/18/03 DOCKET NO. 99-18 092A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUES 1. Entitlement to an increased rating for post-traumatic stress disorder (PTSD), currently evaluated as 30 percent disabling from an original grant of service connection. 2. Entitlement to service connection for calcified granulomas of the lung. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M.C. Peltzer, Associate Counsel INTRODUCTION The veteran served on active duty from May 1968 to May 1970. His DD Form 214 reflects that he served in the Republic of Vietnam during the Vietnam Era from April 1969 to December 1969, and received a Vietnam Service Medal, a Bronze Star Medal with "V" device, and a Combat Infantry Badge. This matter comes before the Board of Veterans' Appeals (Board) from an April 1999 rating decision issued by the No. Little Rock, Arkansas ,Regional Office (RO) of the Department of Veterans Affairs (VA), which denied service connection for PTSD, plantar warts, and calcified granulomas of the lung. The veteran voiced disagreement and perfected his appeal of these issues. Service connection was subsequently granted for PTSD via a May 2000 rating decision and a 30 percent disability rating was assigned. The veteran expressed disagreement with his disability evaluation and perfected his appeal. In January 2001, the Board remanded the issue of entitlement to service connection for calcified granulomas of the lung for further development. The requested development is now complete and the issue is again before the Board for appellate review. Additionally, the January 2001 Board Remand reflects that the Board clarified that the veteran had initiated a claim seeking service connection for lipoma, for which he had received surgical treatment in December 1999, but that this issue had not been considered by the RO. As such, the Board referred this issue for initial development and review. The RO still has not developed and reviewed this issue. Accordingly, the Board once again refers the issue of entitlement to service connection for lipoma (defined as a benign tumor usually composed of mature fat cells) for complete development and review. FINDINGS OF FACT 1. All evidence requisite for an equitable disposition of the veteran's claim has been developed and obtained, and all due process concerns have been addressed. 2. The veteran's PTSD was manifested by a euthymic mood, adequate judgment and insight, adequate grooming and hygiene, problems sleeping, some agitation when dealing with people, and a lifestyle which accommodates his need to avoid certain stimuli. The veteran is self-employed as a farmer and he indicated that his family, friends and church members were his support system. 3. The veteran's calcified granulomas of the lung were not present during service, were not acquired in service, and are not otherwise attributable to the his service, to include exposure therein to Agent Orange. CONCLUSIONS OF LAW 1. The criteria for disability in excess of 30 percent disability rating for PTSD have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9411 (2002). 2. Calcified granulomas of the lung were not incurred in or aggravated by service, and may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2002). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Increased Rating Claim The veteran contends that his service-connected PTSD is more severe than currently evaluated, and as such, an increased rating is warranted. In evaluating service-connected disabilities, the Board looks to functional impairment. The Board attempts to determine the extent to which a service- connected disability adversely affects the ability of the body to function under the ordinary conditions of daily life, including employment. 38 C.F.R. §§ 4.2, 4.10 (2002). VA regulations require that a disability be viewed in relation to its whole recorded history. 38 C.F.R. § 4.41 (2002). In the appeal of an initial assignment of a rating disability, a veteran may be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period, a practice known as "staged ratings." Fenderson v. West, 12 Vet. App. 119 (1999). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2002). The severity of a service connected-disorder is ascertained, for VA rating purposes, by the application of criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2002). Under these criteria, the current 30 percent disability rating contemplates occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine, behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, Diagnostic Code 9411 (2002). A 50 percent disability rating would be appropriate for PTSD that is manifested by occupational and social impairment with reduced reliability and productivity, due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; more than weekly panic attacks; difficulty in understanding complex commands; impairment of short- and long-term memory; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411 (2002). The symptoms listed in Diagnostic Code 9411 are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). When all the evidence is assembled, the determination must be made as to whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Statement of the Evidence A December 1997 VA medical record reflects that the veteran was in good spirits and alert. An April 1998 VA progress note reflects that the veteran was married with three kids, he was a farmer, he indicated that family, friends and church members were his support system with whom he spoke daily, and he noted no issues with depression. A May 1995 VA medical record reflects that the veteran was alert to time, person and place. The December 1999 hearing transcript reveals that the veteran indicated: some problems with flashbacks, he refused to associated with people of Vietnamese descent, he had problems sleeping so he would get up and watch television, he had some agitation when dealing with people, and he would occasionally forget things such as findings things he had put away and remembering arrivals. The hearing transcript reflects that the veteran stated that he was not receiving treatment for PTSD and he got along well with his family. An April 2000 psychological evaluation report, which was conducted by a private psychologist, reflects that the veteran drove himself to the examination, appeared to have adequate grooming and hygiene with appropriate clothing, related in a friendly and quite manner, maintained appropriate eye contact, and became tearful when discussing the death of his brother while they were both stationed in Vietnam. The report also reflects that the veteran indicated that he only slept for three to four hours a night but did not know why. The report indicates that the veteran had created a lifestyle that could accommodate his need to avoid certain stimuli and he appeared to feel safe and secure on his farm in a remote area. However, the examiner noted in the report that the veteran was in serious danger of losing his ability to be a functional member of his family and the family business due to a lack of treatment. The report reflects that he handled stress and inner emotional turmoil with hard work but that his coping skills were not working as well as they had in the past. Testing revealed no evidence of psychotic process or cognitive slippage though there was a certain amount of emotional turmoil expressed. An October 2000 VA examination report reflects that the veteran was affable, casually dressed, his behavior was generally within normal limits throughout the examination, he was fully cooperative, and no significant anxiety or dysphoria were noted. The report also reflects that his speech was within normal limits with regard to rate and rhythm, his mood was euthymic, affect was appropriate to content, his though processes and association were logical, no gross impairment of memory was observed, he was oriented to person, place and time, insight and judgment were adequate, and he denied suicidal and homicidal ideations. The examination report contains a diagnosis of PTSD and reflects a Global Assessment of Functioning (GAF) score of 65. Legal Analysis The evidence reveals that the veteran's PTSD is manifested by a euthymic mood, adequate judgment and insight, adequate grooming and hygiene, problems sleeping, some agitation when dealing with people, and a lifestyle which accommodates his need to avoid certain stimuli. The October 2000 VA examination report reflects a GAF score of 65, which denotes, on a hypothetical continuum of mental health-illness, some mild symptoms but generally functioning pretty well with some meaningful interpersonal relationships. See Diagnostic And Statistical Manual Of Mental Disorders (4th ed. 1994). As previously indicated, a 50 percent disability rating would be appropriate for PTSD that is manifested by occupational and social impairment with reduced reliability and productivity, due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; more than weekly panic attacks; difficulty in understanding complex commands; impairment of short- and long-term memory; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411 (2002). The evidence does not reveal the type and degree of symptoms which is reflective of the symptoms which warrants a 50 percent disability rating. In fact, the evidence revealed that the veteran was self-employed as a farmer, maintained a support network which consisted of family, friends and church members, and had adequate insight and judgment. Furthermore, the evidence of record reflects that he was able to handle stress and inner emotional turmoil through hard work. Additionally, while the veteran indicated that he would occasionally forget things, the October 2000 VA examination report reflects that no gross impairment of his memory was observed. The October 2000 VA examination report also reflects that there was no significant anxiety or dysphoria noted, his affect was appropriate to content, and his speech was within normal limits with regard to rate and rhythm. Accordingly, the Board finds that the veteran's service- connected PTSD is not manifested by the type and degree of symptoms such that his service-connected disability picture more closely approximates the criteria for a 50 percent disability rating. See 38 C.F.R. § 4.7 (2002); Mauerhan v. Principi, 16 Vet. App. 436 (2002). The Board has also considered the application of staged ratings. In Fenderson v. West, it was held that in the appeal of an initial assignment of a rating disability, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period, a practice known as "staged ratings." 12 Vet. App. 1192 126 (1999). In this case, a review of the medical evidence reveals that the veteran is not treated for PTSD on a regular basis. Of the evidence that is available, the evidence reflects that his PTSD symptomatology remained consistent during the pendency of the claim. While the April 2000 psychological evaluation report reflects that the private psychologist indicated that the veteran's coping skills were not working as well as they had in the past and that he was in serious danger of losing his ability to be a functional member of his family and in the family business, there is no evidence that the veteran has lost his ability to be a functional member of his family or in the family business. A service-connected disability assesses how the condition adversely affects the ability of the body to function under the ordinary conditions of daily life, including employment, not how it potentially will affect functionality. See 38 C.F.R. §§ 4.2, 4.10 (2002). Potential deterioration of the veteran's symptomatology is not the basis for an increased rating. In fact, the VA examination, conducted five months later in October 2000, reflects similar symptomatology as is reflected in the April 2000 psychological report. As such, the Board finds that the evidence of record reveals that the veteran's PTSD symptoms were consistently not supportive of a disability rating in excess of 30 percent during the pendency of his claim. Therefore, a staged rating is not warranted. Id. In brief, the Board finds that the preponderance of the evidence is against the veteran's claim and that an increased rating is not warranted. See 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411 (2002). Additionally, a staged rating is not appropriate in the instant case. See Fenderson v. West, 12 Vet. App. 1192 126 (1999). The Board notes that when the preponderance of the evidence is against a claim, the benefit-of-the-doubt rule is not for application. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 4.3 (2002). Finally, the Board has no reason to doubt that the veteran's service-connected PTSD limits his efficiency in certain tasks. This alone, however, does not present an exceptional or unusual disability picture for PTSD and is not reflective of any factor that takes the veteran outside of the norm. See Moyer v. Derwinski, 2 Vet. App. 289, 293 (1992); see also Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired). Accordingly, the Board finds that the veteran's disability picture does not warrant referral for the assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b) (2002). II. Service Connection Claim A veteran is entitled to a presumption of service connection if he is diagnosed with certain enumerated diseases associated with exposure to certain herbicide agents. 38 C.F.R. § 3.309(e) (2002). Regulations pertaining to Agent Orange exposure have expanded to include all herbicides used in Vietnam. If a veteran served on active duty in Vietnam during the Vietnam era and has one of the enumerated conditions, the veteran is presumed to have been exposed to Agent Orange or similar herbicide. 38 U.S.C. § 1116(f) (West 2002); see McCartt v. West, 12 Vet. App. 164 (1999). The diseases for which service connection may be presumed due to an association with exposure to herbicide agents consist of Type II diabetes, Hodgkin's disease, multiple myeloma, non-Hodgkin's disease, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, cancer of the lung, bronchus, larynx or trachea, and soft-tissue sarcoma other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma or mesothelioma. 38 C.F.R. § 3.309(e) (2002). In the instant case, a December 1989 chest X-ray report reflects that the veteran's hilar structures were somewhat prominent, which was felt to be due to some granulomas and vessels. The veteran had active service in Vietnam from April 1969 to December 1969; however, he is presumed to have been exposed to Agent Orange in service only if he had one of the Agent Orange presumptive diseases. McCartt, supra. Calcified granulomas of the lung are not a condition subject to presumptive service connection under the legal provisions related to Agent Orange. Accordingly, the Board finds that the veteran is not entitled to a presumption of service connection for calcified granulomas of the lung as it is not one of the enumerated conditions for which service connection may be granted on a presumptive basis. See 38 C.F.R. § 3.309(e) (2002). The regulations governing presumptive service connection for Agent Orange do not preclude a veteran from establishing service connection with proof of actual direct causation. See Combee v. Brown, 34 F.3d 1039 (1994); see also Brock v. Brown, 10 Vet. App. 155 (1997). Accordingly, the Board will proceed to evaluate the appellant's claim under the provisions governing direct service connection. Service connection is granted for a disability resulting from an injury suffered or disease contracted while in active duty or for aggravation of a preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C.A. §§ 1110 (West 2002); 38 C.F.R. § 3.303 (2002). Regulations also provide that 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) (2002). A determination of service connection requires a finding of the existence of a current disability and an etiologic relationship between that disability and an injury or disease incurred in service. Edenfield v. Brown, 8 Vet. App. 384, 388 (1995); Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Absent any independent supporting clinical evidence from a physician or other medical professional, "[t]he veteran's own statements expressing his belief that his disabilities are service connected . . . are not probative." Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). The determination of the merits of the claim must be made as to whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Board notes that evidence supporting a claim or being in relative equipoise is more than evidence that merely suggests a possible outcome. Instead, there must be at least an approximate balance of positive and negative evidence for the veteran to prevail. Id. at 56. A review of the veteran's service medical records does not show calcified granulomas of the lung. His April 1970 Report of Medical Examination reflects that his lungs and chest were clinically evaluated as normal. Subsequent to service, the evidence of record contains the report of a December 1989 private chest X-ray, which shows that the hilar structures were somewhat prominent, which was felt to be due to some granulomas and vessels. However, the report reflects that the veteran's lungs were clear, and the impression was of a negative chest. The December 1997 Agent Orange protocol examination report reflects that a granuloma was observed on a chest X-ray and, subsequent to further testing, it was concluded that the veteran had calcified granulomas in the hilar areas and a nodule which was felt to be benign and stable. The evidence first reflects granulomas of the lung in December 1989, almost two decades after the veteran's discharge from active duty in 1970. The evidence of record does not reflect granulomas of the lung while he was on active duty, nor is there any competent evidence suggestive that his granulomas of the lung was incurred while he was on active duty. While the veteran has pursued a claim for service connection for his lung condition, the evidence does not demonstrate that he has the requisite medical training or expertise that would render his opinion competent in this matter. As a layman, he is not qualified to render opinions as to medical diagnoses, etiology or causation. Espiritu v. Derwinski, 2 Vet. App. 492 (1992); see also Bostain v. West, 11 Vet. App. 124, 127 (1998). As such, the veteran's contentions that his granulomas of the lung were incurred while on active duty are not competent medical evidence. As the evidence of record is devoid of even a suggestion that the veteran's lung condition is related to his service, the Board must find that his calcified granulomas of the lung were not incurred in service and are not related to his service. Accordingly, the Board concludes that the preponderance of the evidence weighs against the veteran's claim and that service connection for calcified granulomas of the lung is not warranted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C.A. § 5107 (West 2002). The Board has considered the doctrine of reasonable doubt in the veteran's favor, but, as the preponderance of the evidence is against his claim, that doctrine is not for application. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2002). III. Duty to Notify and Assist VA must notify the claimant of evidence and information necessary to substantiate his claim and inform him whether he or VA bears the burden of producing or obtaining that evidence or information. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2002); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Via letter in May 2002, the veteran was notified that VA would help with the development of his claims by requesting evidence from government agencies, employers and all healthcare providers, but that it was his responsibility to identify such evidence. The May 2002 letter additionally notified the veteran that while VA would aid him in obtaining evidence in support of his claim, submission of such evidence was ultimately his responsibility. Additionally, the veteran was notified of the laws, regulations, and evidence pertinent to his claims by way of the June 1999 and January 2001 Statement of the Cases (SOCs). The Board finds that VA's duty to notify has been satisfied. VA must also make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a) (West 2002); 38 C.F.R. § 3.159(c), (d) (2002). The veteran was afforded VA examinations in connection with his increased rating claim in October 2000. See 38 C.F.R. § 3.159(c)(4) (2002). The resulting report has been obtained. As previously indicated, the evidence of record reflects that while he currently has calcified granulomas of the lung, his service medical records are devoid of any injury or disease of his lungs. As such, a medical opinion vis-à-vis whether the veteran's current lung condition was related to or due to an in-service injury or disease was not necessary to decide his claim. Id. Additionally, his service medical records, VA treatment records, and identified private medical records have been associated with his claims file. The veteran was afforded the opportunity to offer testimony at hearing before a hearing officer in September 1999. A transcript is of record. The veteran has identified no other evidence. Therefore, the Board concludes that no further assistance to the veteran regarding development of evidence is required, and would be otherwise unproductive. See 38 U.S.C.A. § 5103A(b)(3) (West 2002); McKnight v. Gober, 131 F.3d 1483 (Fed. Cir. 1997). ORDER An increased rating for PTSD is denied. Service connection for calcified granulomas of the lung is denied. REMAND In the July 2002 Supplemental Statement of the Case, service connection was granted for onychomycosis and mild tinea pedis of the right and left foot (claimed as plantar warts) and a 10 percent disability rated was assigned for each foot. The veteran's representative expressed in the October 2002 statement of accredited representative in appeals case that as the veteran had not expressed satisfaction with the 10 percent evaluation assigned to each foot condition, the issue remained in appeal status. The veteran's representative relied on AB v. Brown, 6 Vet. App. 35, 38 (1993) for this assertion. The Board notes that AB v. Brown does not support such a statement. Instead, AB v. Brown held that a claimant will generally be presumed to be seeking the maximum benefit allowed by law and regulation, and that it follows that a claim for an original or increased rating remains in controversy where less than the maximum available benefit is awarded. 6 Vet. App. 35, 38 (1993); see also Fenderson v. West, 12 Vet. App. 119, 125 (1999) (the expression of a notice of disagreement placed an initial rating award in appellate status). In the instant case, the veteran perfected an appeal that sought service connection for a bilateral foot condition. The maximum available benefit, service connection, was granted for each foot. See Barrera v. Gober, 122 F3d (Fed. Cir. 1997). Therefore, the veteran's rating for his service-connected bilateral foot condition was not automatically in appellate status vis-à-vis the rating assigned after service connection was granted. Here, the representative's October 2002 statement is in fact a timely notice of disagreement with the assignment with the assignment of a 10 percent disability rating for each foot's service-connected condition as it implies dissatisfaction with the assigned evaluations. In Manlincon v. West, 12 Vet. App. 238 (1999), the Court indicated that in a case in which a veteran expressed disagreement in writing with an RO decision and an SOC has not been issued, the Board should remand the issue to the RO, not refer it there, for issuance of an SOC. Accordingly, this case is REMANDED for the following action: The RO should also furnish the veteran and his representative with an SOC for the issues of increased ratings for onychomycosis and mild tinea pedis of the right and left foot. He should be advised of the necessity of filing a timely substantive appeal. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims 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. 2002) (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. ____________________________________________ C.P. RUSSELL Veterans Law Judge, 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.