Citation Nr: 0902425 Decision Date: 01/23/09 Archive Date: 01/29/09 DOCKET NO. 07-06 587 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to service connection for fatty liver disease, to include as secondary to Agent Orange exposure. 2. Entitlement to an initial evaluation in excess of 50 percent for post-traumatic stress disorder. REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD David S. Ames, Associate Counsel INTRODUCTION The veteran served on active duty from June 1964 to October 1968. This matter comes properly before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office in Cleveland, Ohio. The veteran's case comes from the VA Regional Office in Boston, Massachusetts (RO). FINDINGS OF FACT 1. The medical evidence of record does not show that the veteran's currently diagnosed fatty liver disease is related to military service, to include as secondary to Agent Orange exposure. 2. The medical evidence of record shows that the veteran's post-traumatic stress disorder (PTSD) was initially manifested by sleep impairment, anxiety, depression, intrusive recollections, nightmares, flashbacks, impaired impulse control, hypervigilance, and severe difficulty in establishing and maintaining effective work and social relationships. CONCLUSIONS OF LAW 1. Fatty liver disease was not incurred in, or aggravated by, active military service and may not be presumed to have been so incurred, to include as due to Agent Orange exposure. 38 U.S.C.A. §§ 1110, 1131, 1116, 5103A, 5107 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2008). 2. The criteria for an initial evaluation of 70 percent for PTSD have been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS With respect to the veteran's claims, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2008). Prior to initial adjudication, letters dated in May 2005 and June 2005 satisfied the duty to notify provisions. Additional letters were also provided to the veteran in May 2006, after which the claims were readjudicated, and August 2008. See 38 C.F.R. § 3.159(b)(1); Overton v. Nicholson, 20 Vet. App. 427 (2006); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). The veteran's service medical records, VA medical treatment records, and indicated private medical records have been obtained. VA fee-based examinations were provided to the veteran in connection with his claims. There is no indication in the record that additional evidence relevant to the issues decided herein is available and not part of the claims file. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. 473. Further, the purpose behind the notice requirement has been satisfied because the veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claims, to include the opportunity to present pertinent evidence. Liver Disorder Generally, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In addition, 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). In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Additionally, a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307. The following diseases are deemed associated with herbicide exposure, under VA law: chloracne or other acneform diseases consistent with chloracne, Hodgkin's disease, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma), and diabetes mellitus (Type 2). 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307(a)(6)(iii); 38 C.F.R. § 3.309. In this case, the veteran claims that he developed fatty liver disease as the result of exposure to Agent Orange. The evidence of record reveals that the veteran served in Vietnam. He is therefore presumed under 38 U.S.C.A. § 1116(f), to have been exposed to herbicide agents, to include Agent Orange. However, the medical evidence of record does not show a current diagnosis of a presumptive liver disorder under 38 C.F.R. § 3.309(e). Fatty liver disease is not a presumptive disorder under 38 C.F.R. § 3.309(e). Accordingly, presumptive service connection for fatty liver diseased based on exposure to herbicides is not warranted. Notwithstanding the foregoing, the United States Court of Appeals for the Federal Circuit has determined that the Veterans' Dioxin and Radiation Exposure Compensation Standards Act, Pub. L. No. 98-542, § 5, 98 Stat. 2724, 2727- 29 (1984), does not preclude a veteran from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed.Cir. 1994). The United States Court of Appeals for Veterans Claims has specifically held that the provisions of Combee are applicable in cases involving Agent Orange exposure. McCartt v. West, 12 Vet. App. 164, 167 (1999). The veteran's service medical records are negative for any diagnosis of a liver disorder. After separation from military service, a February 2005 private medical report stated that the veteran had "a fatty liver, not unusual for his weight." The report further stated that the veteran's liver disorder was the "wrong pattern" for an alcohol-induced liver disorder. The medical evidence of record shows that fatty liver disease has been consistently diagnosed since February 2005. In an April 2005 private medical report, a private physician stated that "I feel that the fatty liver is probably related in part to his sudden weight gain and in part due to the alcohol." A December 2005 VA fee-based medical examination report stated that the veteran had abnormal liver enzymes for the previous 8 years. After physical examination, the diagnosis was fatty liver disease. The examiner stated that "[d]iabetes can cause nonalcoholic steatohepatitis. But [the veteran] reports also to be a drinker which is associated to similar findings." The medical evidence of record does not show that the veteran's currently diagnosed fatty liver disease is related to military service, to include as secondary to Agent Orange exposure. The veteran's service medical records are negative for any diagnosis of a liver disorder. While the veteran has a current diagnosis of fatty liver disease, there is no medical evidence of record that the veteran had liver symptoms prior to 1997, approximately 29 years after separation from military service. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (holding that VA did not err in denying service connection when the veteran failed to provide evidence which demonstrated continuity of symptomatology, and failed to account for the lengthy time period for which there is no clinical documentation of his low back condition). In addition, there is no medical evidence of record that relates the veteran's liver disorder to military service. The only medical evidence of record that discusses the etiology of the veteran's fatty liver disease are the February 2005 private medical report, the April 2005 private medical report, and the December 2005 VA fee-based medical examination report. The February 2005 private medical report stated that the veteran's fatty liver disease was "not unusual for his weight." The April 2005 private medical report stated that the veteran's fatty liver disease was "probably related in part to his sudden weight gain and in part due to the alcohol." While the December 2005 VA fee-based medical examination report stated that the disability "can" be caused by diabetes, for which service-connection has already been granted, it also stated that alcohol consumption was "associated to similar findings." In addition, the word "can" is entirely speculative and does not create an adequate nexus for the purposes of establishing service connection. Obert v. Brown, 5 Vet. App. 30, 33 (1993) (physician's statement that the veteran may have been having some symptoms of multiple sclerosis for many years prior to the date of diagnosis deemed speculative); Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992) (evidence favorable to the veteran's claim that does little more than suggest a possibility that his illnesses might have been caused by service radiation exposure is insufficient to establish service connection); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) (medical evidence which merely indicated that the alleged disorder "may or may not" exist or "may or may not" be related, is too speculative to establish the presence of the claimed disorder or any such relationship). Accordingly, the preponderance of the medical evidence of record does not show that the veteran's currently diagnosed fatty liver disease is related to military service. The veteran's statements alone are not sufficient to prove that his currently diagnosed fatty liver disease is related to military service, to include as secondary to Agent Orange exposure. Medical diagnosis and causation involve questions that are beyond the range of common experience and common knowledge and require the special knowledge and experience of a trained physician. As he is not a physician, the veteran is not competent to make a determination that his currently diagnosed fatty liver disease is related to military service, to include as secondary to Agent Orange exposure. Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Accordingly, the preponderance of the medical evidence of record does not show that the veteran's currently diagnosed fatty liver disease is related to military service, to include as secondary to Agent Orange exposure. As such, service connection for fatty liver disease is not warranted. In reaching this decision, the Board considered the doctrine of reasonable doubt. However, as the preponderance of the evidence is against the veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). PTSD Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4 (2008). The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2008). In resolving this factual issue, the Board may only consider the specific factors as are enumerated in the applicable rating criteria. See Massey v. Brown, 7 Vet. App. 204, 208 (1994); Pernorio v. Derwinski, 2 Vet. App. 625, 628 (1992). In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2008). Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). Where an increase in the disability rating is at issue, the present level of the veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board notes, however, that the rule articulated in Francisco does not apply to the veteran's PTSD claim, because the appeal of this issue is based on the assignment of an initial evaluation following an initial award of service connection for PTSD. Fenderson v. West, 12 Vet. App. 119, 126 (1999). Instead, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous." Fenderson, 12 Vet. App. at 126. If later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time. Id. Service connection for PTSD was granted by a March 2006 rating decision and a 50 percent evaluation was assigned under 38 C.F.R. § 4.130, Diagnostic Code 9411, effective April 8, 2005. In a December 2005 VA fee-based psychiatric evaluation report, the veteran complained of nightmares, flashbacks, and disturbing memories of Vietnam and military service. On mental status examination, the veteran was causally dressed and properly groomed. His thought processes were well organized. The veteran "reacted with intense fear and anger" to higher authority figures due to their ability to place others' lives in danger. He reported recurrent recollections, recurrent nightmares, and sometimes re-experiencing traumatic events. The report stated that "[t]he nature of [the veteran's] job provided him to be alone, as he could not have dealt with other people." The veteran reported sadness and depression, but denied suicidal and homicidal ideation. The veteran had no history of obsessive thoughts or compulsive rituals. He had some insight into his PTSD symptoms and his general fund of knowledge was good. The veteran had low self-esteem and sleep impairment. The diagnosis was PTSD. The examiner assigned a Global Assessment of Functioning (GAF) score of 50, which contemplates serious symptoms, such as suicidal ideation, severe obsessional rituals and frequent shoplifting, or any serious impairment in social, occupational, or school functioning, such as no friends and inability to keep a job. See QUICK REFERENCE TO THE DIAGNOSTIC CRITERIA FROM THE DSM-IV, 46-47 (1994) (DSM-IV). In a May 2006 VA outpatient mental health report, the veteran complained of nightmares, sweating, flashbacks, avoiding crowds, trust issues, irritability, exaggerated startle reflex, and problems with relationships and authority figures. He reported a recent exaggeration of symptoms due to the paperwork required to file a VA claim. On mental status examination, the veteran was alert, oriented, and had good eye contact. His mood was anxious, with guarding at first. He denied suicidal and homicidal ideation, though he reported a previous suicide attempt in the early 1970s. His speech was logical and goal-directed. The examiner assigned a GAF score of 45, which contemplates serious symptoms. Id. In a June 2006 VA outpatient psychiatry report, the veteran reported having a problem with uniforms. He stated that he did not like to wear his Post Office uniform and only agreed to wear the shirt, not the pants. The veteran appeared pleasant and cooperative. He was alert and oriented to time, place, and person. The veteran denied suicidal or homicidal ideation. He reported that he worked full time at the Post Office, where he had been employed for the previous 20 years. The veteran complained of intermittent nightmares and depression. The assessment stated that the veteran was not an apparent danger to himself or others and was neat and clean. His mood and affect were mildly anxious and dysphoric, but non-psychotic. The veteran was very functional, driven, and goal oriented. He experienced stress at work due to the "people who are lazy and don't do anything." The veteran's judgment and insight appeared intact, there was no evidence of a thought disorder, and his speech was clear, concise, and goal directed. In a July 2006 VA outpatient psychiatry report, the veteran appeared pleasant and cooperative. He was alert and oriented to time, place, and person. The veteran denied suicidal or homicidal ideation. The veteran continued to work at the Post Office and was planning a vacation with his girlfriend. The assessment stated that the veteran was neat and clean. His mood and affect were overall appropriate to his thought content. He was pleasant and non-psychotic. There was no decompensation since the previous visit and the veteran had a good sense of humor. The veteran's judgment and insight appeared intact, there was no evidence of a thought disorder, and his speech was clear, concise, and goal directed. In an October 2006 VA outpatient psychology report stated that the veteran reported nightmares and sleep disturbance. He reported few intrusive and upsetting daytime thoughts and images of Vietnam, particularly when working and occupying his mind. The veteran avoided crowds and sat with his back to the wall. In a November 2006 VA outpatient psychology report, the veteran reported that his work involved long drives and local drives. The veteran complained of nightmares about 1 to 2 times per week which resulted in sleep impairment. He reported intrusive thoughts. In a January 2007 VA outpatient psychology report, the veteran reported that he kept busy and worked a lot to keep his mind off of intrusive thoughts of his stressors. An October 2008 letter from the United States Post Office stated that a review of the veteran's attendance record from January 11, 2008 to October 16, 2008 showed that the veteran had failed to be in regular attendance at his job. The report showed that between these dates, the veteran took unscheduled leave on 94 separate occasions for a total of 716.23 hours of unscheduled leave, of which the vast majority were sick leave, in lieu of sick leave, or family medical leave; and 52.5 hours of scheduled sick leave. In 2007, the veteran took a total of 104 days of scheduled leave and 66 days of unscheduled leave. In 2006, the veteran took a total of 103 days of scheduled leave and 106 days of unscheduled leave. In an October 2008 statement from the veteran's girlfriend, she reported that she had been with the veteran for 26 years. She stated that they lived separately until 1999 because the veteran had a lot of "sleeping issues" that he did not explain until she moved in. The veteran's girlfriend stated that after moving in, they had to sleep in separate beds due to the veteran's nightmares. She stated that the veteran was afraid to go back to sleep and calls in sick at his job at the US Postal Service, claiming [symptoms of a] back injury that occurred in 2006 [and] 2007 so that he would not get fired. His disposition has changed where he has a lot of "mood changes." He will not attend any function where there is a crowd of people, such as weddings, funerals, wakes, family get togethers, fireworks displays, will not watch a war movie, news or read a newspaper. Would not go to his "adopted" mother's funeral. She stated that the veteran could not remember names, was "very depressed quite often", and expressed suicidal ideation "many times." The veteran avoided "Asian" restaurants, people, and items. She stated that the veteran "finds fault with minor things, such as everything must be in its proper place" and it did not take much to start an argument. In the transcript of an October 2008 hearing before the Board, the veteran's representative stated that the veteran's PTSD severely impacted his ability to work. He stated that the veteran experienced anxiety, depression, and could not "handle" other people. The representative stated that the veteran's PTSD symptoms had increased exponentially. The veteran stated that he slept in a separate room from his girlfriend due to the severity of his sleep disturbances. He stated that he did not go out because there were too many people and had abandoned all his hobbies. The veteran stated that he thought about Vietnam every night. He stated that his symptoms had increases in severity over the previous 4 to 5 years, particularly the previous 1 to 2 years. The veteran stated that he left work early on multiple occasions due to fears of being confined. He reported that he did not leave the house except for work and did not socialize with other people. The veteran stated that he did not interact with anyone other than his girlfriend. The Schedule provides that assignment of a 50 percent evaluation is warranted for PTSD with 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 such as, retention of only highly learned material, forgetting to complete tasks; 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. A 70 percent evaluation is warranted for PTSD with 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 a work-like setting; and the inability to establish and maintain effective relationships. Id. A 100 percent disability evaluation is warranted for total occupational and social impairment due to such symptoms as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene; and disorientation to time and place, memory loss for names of close relatives, own occupation, or own name. Id. The medical evidence of record shows that the veteran's PTSD was initially manifested by sleep impairment, anxiety, depression, intrusive recollections, nightmares, flashbacks, impaired impulse control, hypervigilance, and severe difficulty in establishing and maintaining effective work and social relationships. Despite the veteran's continued, long- term employment, the evidence shows that he experiences severe difficulty with his occupation due to PTSD symptomatology. He refuses to wear the full United States Post Office uniform and has difficulty interacting with co-workers, particularly superiors. In addition, the evidence of record shows that the veteran has missed an excessive amount of work due to his PTSD, totaling several hundred days of absences in less than a 3 year time period. The vast majority of these absences are marked as sick or medical leave, and they have continued with such regularity that as of October 2008, the veteran was facing potential dismissal from the United States Post Office. As such, his steady employment of approximately 20 years is not indicative of an ability to maintain effective work relationships. Furthermore, while the veteran appears to retain a good relationship with his girlfriend, the evidence indicates that he has no other social relationships and engages in no other activities outside of the house. This is substantiated by the veteran's GAF scores of 50 and 45, both of which contemplate serious symptoms, such as serious impairment in social, occupations, or school functioning, such as no friends or inability to keep a job. See DSM-IV, 46-47. Applying the above criteria to the facts of the case, the medical evidence most closely approximates the criteria contemplated for a 70 percent initial evaluation under the provisions of Diagnostic Code 9411. See 38 C.F.R. § 4.7 (2008). While the veteran did not demonstrate several of the symptoms listed for a 70 percent evaluation, such as speech intermittently illogical, obscure or irrelevant, spatial disorientation, and neglect of personal appearance and hygiene, these are simply guidelines for determining whether the veteran meets the dominant criteria. The dominant criteria are occupational and social impairment, with deficiencies in most areas. In this case, the evidence of record shows that the veteran has severe occupational difficulties and almost total social impairment. Accordingly, based on all the evidence of record, the manifestations of the veteran's PTSD most closely approximates the criteria contemplated for a 70 percent initial evaluation under the provisions of Diagnostic Code 9411. However, a rating in excess of 70 percent is not for assignment as the evidence of record does not show that the veteran has ever had persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene; and disorientation to time and place, memory loss for names of close relatives, own occupation, or own name. As this issue deals with the rating assigned following the original claim for service connection, consideration has been given to the question of whether staged ratings would be in order. However, the evidence of record shows that the veteran has never met the criteria for a 100 percent evaluation at any time. Accordingly, the 70 percent evaluation assigned herein reflects the degree of impairment shown since the date of the grant of service connection for the PTSD, and there is no basis for staged ratings with respect to this claim. In reaching this decision, the Board considered the doctrine of reasonable doubt. However, as the preponderance of the evidence does not show findings that meet the criteria for a 100 percent evaluation, the doctrine is not for application. Gilbert, 1 Vet. App. 49; see also Massey v. Brown, 7 Vet. App. 204, 208 (1994) (the Board may only consider the specific factors as are enumerated in the applicable rating criteria). ORDER Service connection for fatty liver disease, to include as secondary to Agent Orange exposure, is denied. An initial evaluation of 70 percent disabling, but no greater, for PTSD is granted, subject to the laws and regulations governing the payment of monetary benefits. ____________________________________________ ROBERT E. SULLIVAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs