Citation NR: 9711405 Decision Date: 04/04/97 Archive Date: 04/14/97 DOCKET NO. 95-28 052 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUES 1. Entitlement to service connection for alcohol abuse. 2. Entitlement to an increased (compensable) rating for a service-connected chest wound. 3. Entitlement to an increased rating for service- connected post-traumatic stress disorder (PTSD), currently rated as 10 percent disabling. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J.R. Moore, Associate Counsel INTRODUCTION The veteran had active military service from June 1968 to April 1970. This case is before the Board of Veterans’ Appeals (Board) on appeal from a March 1995 rating decision by the Winston- Salem, North Carolina Regional Office (RO) of the Department of Veterans Affairs (VA), which granted service connection for PTSD (assigned a 10 percent rating), granted service connection for a chest wound (assigned a noncompensable rating), and denied the veteran's claim of entitlement to service connection for alcohol abuse. The veteran's notice of disagreement was received in April 1995. A statement of the case was mailed to the veteran in August 1995. The veteran's substantive appeal was received in August 1995. The Board notes a letter received from the veteran in April 1995 contains certain statements by the veteran to the effect he is disabled and unable to work. When such issues arise, the Department of Veterans Affairs (VA) must consider whether or not the veteran is entitled to nonservice-connected disability pension benefits and/or a total disability rating based on unemployability for compensation purposes. Ferraro v. Derwinski, 1 Vet.App. 326 (1991); Pritchett v. Derwinski, 2 Vet.App. 116, 122 (1992). This matter is therefore referred to the RO for development and adjudication. The veteran is represented by Disabled American Veterans in this appeal. CONTENTIONS OF VETERAN ON APPEAL The veteran and his representative contend the veteran's alcohol addiction is due to his service. Additionally, it is contended a compensable rating should be assigned for the veteran's service-connected chest wound. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1996), 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 the veteran's claim of entitlement to service connection for alcohol abuse and the veteran's claim of entitlement to a compensable rating for a service- connected chest wound must be denied. FINDINGS OF FACT 1. The veteran’s claim of entitlement to service connection for alcohol abuse was received in June 1994. 2. The veteran currently does not suffer disability due to his service-connected chest wound. CONCLUSIONS OF LAW 1. The veteran's claim of entitlement to service connection for alcohol abuse cannot be granted as a matter of law. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.310 (1996). 2. The veteran's service-connected chest wound does not warrant a compensable disability rating. 38 C.F.R. §§ 4.31, 4.118, Diagnostic Code 7805 (1996). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Entitlement to service connection for alcohol abuse. The veteran is claiming entitlement to service connection for alcohol abuse. 38 U.S.C.A. § 1110 (West 1991) states that no compensation shall be paid if the disability is due to the veteran’s own willful misconduct or alcohol abuse. In a precedental opinion dated January 16, 1997, the VA General Counsel held the following: Section 8052 of the Omnibus Budget Reconciliation Act of 1990, Pub. L. No. 101-58, § 8052, 104 1338, 1338- 351, prohibits, effective for claims filed after October 31, 1990, the payment of compensation for a disability that is a result of the veteran's own alcohol or drug abuse. The payment of compensation is prohibited whether the claim is based on direct service connection or, under 38 C.F.R. § 3.310(a), on secondary service connection of a disability proximately due to or a result of a service-connected condition. Further, compensation is prohibited regardless of whether compensation is claimed on the basis that a service-connected disease or injury caused the disability or on the basis that a service-connected disease or injury aggravated the disability. VAOPGCPREC 2-97. VA General Counsel precedent opinions are binding on the Board. 38 U.S.C.A. § 7104(c) (West 1991). Although it is not clear in the case at hand whether the veteran is claiming his alcohol abuse is directly due to service or if it is secondary to his service-connected PTSD, either way, the end result is the same. Since the veteran's claim was received in June 1994, well past the October 1990 deadline stated in the General Counsel's precedental opinion, the Board cannot grant service connection for the veteran's alcohol abuse. Therefore the claim must be denied as a matter of law. See Sabonis v. Brown, 6 Vet.App. 426 (1994). II. Entitlement to a compensable rating for a service- connected chest wound. The VA assigns disability evaluations in accordance with the Schedule for Rating Disabilities which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1996). The veteran is currently rated under Diagnostic Code 7805 for a chest wound. His service medical records are silent as to the incident which caused the wound, but it appears he was awarded a Purple Heart for it. The veteran's separation examination, administered in April 1970, does not even note a scar from the wound. Similarly, a VA examination administered in November 1994 notes the following concerning the veteran's chest wound: The [veteran] sustained shrapnel fragment wounds to his chest and abdomen in 1969. He did not sustain any internal injuries. He states that he was hospitalized only for a few days and then released. Scars from this injury are no longer visible. The final diagnosis by the VA examiner was “Superficial shrapnel fragment wounds to chest and abdomen, no residuals, no deformities, and no scars visible.” In a letter received from the veteran in April 1995, the veteran stated that he was “not claiming anything about the wound except that it did happen.” The Board wants to stress to the veteran that, in granting service connection for the veteran's chest wound, the RO was recognizing the fact that the veteran did suffer a chest wound. The noncompensable disability rating assigned to the wound was only a reflection of the veteran's current condition, not an implicit denial that the event in question ever occurred. As for the veteran's current condition, there are no medical records in the veteran's claims file which show the veteran suffers any disability due to his service-connected chest wound. Diagnostic Code 7805 states disabilities should be rated “on limitation of function of the part affected.” The claims file contains no medical evidence showing limited function of the veteran's chest or abdomen due to his wound. Moreover, the claims file does not even contain any allegations by the veteran or his representative as to any functional limitation suffered by the veteran due to the wound. In the event that the schedule does not provide a zero percent rating for a diagnostic code, a zero percent rating will be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. Based on the evidence the Board finds that a compensable evaluation is not warranted. The Board has also considered the doctrine of reasonable doubt, but the record does not provide an approximate balance of negative and positive evidence on the merits. Accordingly, the Board concludes the preponderance of the evidence is against the veteran's claim for a compensable rating for his service-connected chest wound. ORDER The veteran's claim of entitlement to service connection for alcohol abuse is denied; the veteran's claim of entitlement to a compensable disability rating for a service-connected chest wound is also denied. III. Entitlement to an increased rating for service-connected PTSD. REMAND As for the veteran's claim of entitlement to an increased rating for service-connected PTSD, the schedular criteria by which PTSD is rated changed during the pendency of the veteran’s appeal. See 61 Fed. Reg. 52695-52702 (Oct. 8, 1996) (effective Nov. 7, 1996). Under Karnas v. Derwinski, consideration of both old and new criteria must be accomplished by the RO in these circumstances, with the criteria most favorable to the veteran’s claim being used. Karnas v. Derwinski, 1 Vet.App. 308 , 313 (1991). To facilitate the RO’s decision, another psychiatric examination should be administered to accurately assess the severity of the veteran's current condition. The examiner must be provided a copy of all relevant diagnostic codes (new and old) in conjunction with the examination. Under the circumstances, the Board finds this case must be REMANDED to the RO for the following actions: 1. The RO should also request the veteran furnish the names and addresses of all medical care providers who have furnished treatment for his service- connected PTSD. He should be requested to furnish signed authorizations for release of medical records in connection with each private source he identifies, so that the RO can request them. Copies of the medical records from all sources he identifies, including VA records, (not already in the claims folder), should be requested. All records obtained should be associated with the claims folder. 2. The veteran should be afforded a VA psychiatric examination. The examiner should review the veteran's entire claims folder, and provide an opinion as to what effect the veteran's service-connected PTSD has on his social and industrial adaptability. To this end, the examiner should identify diagnostically all symptoms and clinical findings which are manifestations of the service-connected PTSD and render an opinion for the record as to the degree to which those specific symptoms and findings affect the veteran’s ability to establish and maintain effective and favorable relationships with people (social impairment), and the degree to which they affect his reliability, productivity, flexibility, and efficiency levels in performing occupational tasks (industrial impairment). See Massey v. Brown, 7 Vet.App. 204 (1994). The examiner must be provided by the RO with the diagnostic criteria, both new and old, under which the veteran could be rated for PTSD. The examiner should report the findings in terms consistent with the old and new regulatory criteria. A Global Assessment of Functioning (GAF) score should also be provided, and the examiner should explain the meaning of the score. All indicated tests should be conducted. 3. After the above actions have been completed, the RO should readjudicate the veteran’s claim for an increased rating for PTSD pursuant to the new and old rating schedule criteria with consideration of Karnas, supra. If the determination remains unfavorable to the veteran in any way, he and his representative should be furnished a supplemental statement of the case , which includes a summary of additional evidence submitted, any additional applicable laws and regulations, including the revised VA General Rating Formula for Mental Disorders (38 C.F.R. § 4.130, effective November 7, 1996). This document should include detailed reasons and bases for the decisions reached. The veteran and his representative should be afforded the opportunity to respond thereto. After the above actions have been accomplished, the case should be returned to the Board for further appellate consideration, if otherwise in order. By this REMAND the Board intimates no opinion, either factual or legal, as to the ultimate determination warranted in this case. The purpose of the REMAND is to further develop the record and to accord the veteran due process of law. No action is required of the veteran until he receives further notice E. M. KRENZER Member, Board of Veterans' Appeals 38 U.S.C.A. § 7102 (West Supp. 1996) permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991 & Supp. 1996), 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) (1996). - 2 -