Citation Nr: 9813775 Decision Date: 04/30/98 Archive Date: 05/08/98 DOCKET NO. 94-31 530 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to service connection for a psychiatric disorder, including sleep and conversion disorders. 2. Entitlement to a increased (compensable) rating for reactive airway disease, with vasomotor rhinitis and a history of sinusitis. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Stephen Eckerman, Associate Counsel INTRODUCTION The veteran served on active duty from February 1980 to December 1988. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from June 1989 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia, which, in pertinent part, denied the veteran’s claim for service connection for depression, a sleep disorder and a conversion disorder; and granted service connection and a zero percent rating for mild reactive airway disease with vasomotor rhinitis and a history of sinusitis. After additional evidence was received, the RO affirmed these decisions in November 1991, November 1994 and February 1995. In November 1996, the Board remanded these claims for additional development. After this development was carried out, the RO affirmed the aforementioned decisions in February 1998. The Board further notes that in November 1991, the RO denied claims of entitlement to service connection for a low back disorder and fibromyositis, and granted claims of entitlement to service connection for degenerative changes of the cervical spine and feet, with both disabilities evaluated as noncompensable. In November 1996, the Board affirmed these decisions. In January 1997, the veteran filed a motion for reconsideration of the aforementioned November 1996 Board decision. In May 1997, the Board denied the motion for reconsideration. CONTENTIONS OF APPELLANT ON APPEAL The veteran essentially claims that the RO erred in not granting the benefits sought on appeal. He maintains, in substance, that he has a psychiatric disorder, to include sleep and conversion disorders, as a result of his service. He further asserts that his service-connected reactive airway disease, with vasomotor rhinitis and a history of sinusitis, is more severe than is currently evaluated. Thus, favorable determinations are requested. DECISIONS OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1997), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the evidence warrants a grant of service connection for an undifferentiated somatiform disorder, and that the evidence warrants a 10 percent rating for reactive airway disease with vasomotor rhinitis and a history of sinusitis. FINDINGS OF FACT 1. All of the relevant facts necessary for an equitable disposition of the veteran’s appeal has been obtained by the RO. 2. The veteran had a history of somatic complaints during service; he was diagnosed with a conversion disorder within a year of separation from service; a VA examiner has linked his somatization and depression to his service; and he was recently diagnosed with an undifferentiated somatiform disorder by a VA examiner. 3. The veteran has been shown to require intermittent inhalational or oral bronchodilator therapy. CONCLUSIONS OF LAW 1. An undifferentiated somatiform disorder with depression was incurred as a result of active service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131 (West 1991); 38 C.F.R. §§ 3.303, 3.307, 3.309 (1997). 2. The criteria for a 10 percent evaluation for reactive airway disease, with vasomotor rhinitis and a history of sinusitis, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 4.97, Diagnostic Code 6602 (1997). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As a preliminary matter, the Board finds that the veteran’s claims are plausible and capable of substantiation and are thus well grounded within the meaning of 38 U.S.C.A. § 5107(a). The Board is satisfied that all relevant facts have been properly developed. No further assistance to the veteran is required in order to comply with the duty to assist as mandated by 38 U.S.C.A. § 5107(a). I. Psychiatric Disorder A. Background The veteran served on active duty from February 1980 to December 1988. The service medical records include periodic examination reports, dated March 1982 and April 1986, respectively, which show that his psychiatric condition was clinically evaluated as normal. A service medical record, dated in October 1986, shows that the veteran reported feeling overwhelmed by anxiety and stress. The examiner indicated that the veteran exhibited neurotic behavior characteristics, which necessitated psychotherapy. A service medical record, dated in June 1988, shows that he was treated for multiple somatic complaints with significant marital tension. That record indicates that he had received outpatient treatment in January and February of 1987 for “existential concerns and reported 15 years of marital stress.” At that time, the veteran reported improved marital relationship and resolution of somatic complaints. Psychological testing was performed, and the examiner stated that the veteran had gender identity issues. The Axis I diagnoses was marital problem. The Axis II diagnosis was narcissistic traits. The Axis III diagnosis was history of somatic complaints. His Global Assessment of Functioning (GAF) score was 65, with a high for the past year of 75. In May 1989, the veteran was afforded a VA psychiatric examination. He reported that his psychiatric difficulties began in 1982, after complications from dental surgery. He stated that his symptoms included sleep difficulties. He also reported a number of physical ailments began to bother him at that time. The diagnosis was conversion disorder. A VA examination report, dated in March 1991, shows diagnoses that included a major depressive disorder with sleep disorder. A VA consultation sheet, also dated in March 1991, shows that the veteran complained of depression and erratic sleep. The examiner indicated that the veteran underwent major dental procedures during his service which caused problems talking, chewing and breathing, and that these symptoms in turn resulted in depression. The examiner indicated that a review of the veteran’s service medical records clearly pointed to somatization and depression, which continued through service until the time of separation. The impression was major depressive disorder. The examiner stated that the veteran’s depression was an outgrowth of the difficulties which he initially experienced during service. A report from Dr. Terry Bight, apparently dated sometime in 1991, shows that the veteran was determined to have moderate to severe reactive depression. The Axis I diagnosis was major depression, single episode. At his personal hearing in April 1994, the veteran asserted that he underwent dental surgery in 1982 which resulted in several diverse symptoms, to include fatigue and difficulty sleeping, swallowing and talking. He stated that these conditions led to depression and suicidal ideation. He reported that he still has difficulty sleeping. A treatment summary from Gregory K. Lehne, Ph.D., dated in March 1997, states that he had treated the veteran from April to August of 1996, for evaluation of gender identity problems. Dr. Lehne stated that the veteran presented a “diagnostic dilemma” with characteristics of cyclothymic disorder, psychological factors affecting his physical condition, gender identity disorder and mixed personality disorder. The veteran’s sleep-wake pattern was noted to be extremely unstable. He further indicated that there was no history which allowed him to clearly identify a manic episode or a major depressive episode. There were no overt psychotic features, and no clear evidence of conventional delusions, obsessions, compulsions, hallucinations or lapses in consciousness. Records from Stephen S. Lippman, dated between March and September of 1996, show that the veteran was counseled with regard to hormonal therapy and “gender reassignment surgery.” The veteran reported that he had been cross- dressing for about one year. The assessment was gender identity disorder, possibly true transsexual vs. transvestite. A letter from Ellen L. Beauchamp, Ph.D., dated in August 1997, indicates that she treated the veteran between June 1988 and April 1989. Dr. Beauchamp stated that personality testing revealed a narcissistic personality disorder, and that he utilized physical complaints, rationalizations and intellectualizations in order to avoid facing responsibility. The veteran was afforded a VA psychiatric examination in December 1997. He reported that his depression was the result of physical symptoms following dental surgery during service in 1982. He stated that due to this surgery he could not perform his duties, and that he was eventually separated from service due to his unsatisfactory performance. The examiner noted a history of multiple somatic complaints over the years. The Axis I diagnoses were undifferentiated somatiform disorder and gender identity disorder. In an addendum, dated in January 1998, the examiner stated that although he had been requested to provide an opinion as to the etiology of the veteran’s psychiatric condition, he could not do so. B. Analysis Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131 (West 1991); 38 C.F.R. § 3.303. If a psychosis is manifest to a degree of 10 percent within one year after separation from service, the disorder may be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In addition, a condition noted during service is not shown to be chronic, then generally a continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). The Board finds that the evidence warrants a grant of service connection for an undifferentiated somatiform disorder with depression. The service medical records indicate that military examiners determined that the veteran exhibited neurotic behavior characteristics for which he required psychotherapy. Service medical records also show treatment for multiple somatic complaints, including an Axis III diagnosis of a history of somatic complaints. As of June 1988, his GAF score indicated the presence of a mild psychiatric disability. Furthermore, VA medical records show that in May 1989, within one year of separation from service, the veteran was diagnosed with a conversion disorder. Finally, in March 1991 a VA examiner stated that a review of the veteran’s service medical records clearly pointed to somatization and depression which continued through service until the time of separation. The impression was major depressive disorder. Based on the foregoing, the Board has determined that the evidence warrants a grant of service connection for an undifferentiated somatiform disorder with depression. To this extent, the appeal is granted. The Board notes that the veteran has asserted that he has a sleep disorder as a result of his service. In addition, in April 1997, the veteran also stated that he desired to have his claim for a psychiatric disorder include a claim for “gender dysphoria.” However, the Board has determined that a sleep disorder, and a gender identity disorder, were not incurred during service, nor were they manifest to a compensable degree within a year of separation from service. In this regard, although the veteran complained of sleep difficulties in May 1989, within a year of separation from service, he was not diagnosed with a sleep disorder at that time, and the claims file does not show a diagnosis of a sleep disorder at any time thereafter. With regard to the veteran’s claim for a gender identity disorder, the sole reference in the service medical records to a gender identity-related disorder is contained in a June 1988 report, which shows that an examiner reported that the veteran had “gender identity issues.” However, the Axis I diagnoses was “marital problem.” The first report involving a gender identity disorder is dated in March 1996. This is approximately eight years after separation from service. In summary, there is no showing of a chronic sleep disorder, or a chronic gender identity disorder, during service, or within a year of service. Accordingly, the veteran’s claims of entitlement to service connection for a sleep disorder, and a gender identity disorder, must be denied. II. Reactive Airway Disease A. Background Service medical records show that in December 1987 the veteran was diagnosed with a history of mild reactive airway disease (RAD), vasomotor rhinitis and sinusitis. In August 1988, he was diagnosed with mild RAD, with mild exacerbation secondary to mild sinusitis, as well as clinical sinusitis and vasomotor rhinitis. These diagnoses were essentially repeated in September and October of 1988. Post-service medical records include a VA examination report, dated June 1989, which shows a diagnosis of RAD by history. A VA examination report, dated in March 1991, shows that RAD was not found. At his personal hearing in April 1994, the veteran asserted that he took oral medication and that he used inhalers to control his RAD. He asserted that he had been treated on numerous occasions for RAD. He complained of wheezing and difficulty breathing due to excessive secretions. He stated that he was sensitive to such irritants as chemicals and mold. Records from an unidentified private health care provider, dated in June 1993, show a treatment for complaints of cough, congestion and cold. On examination, the chest had scattered, sibilant rales, bilaterally. The assessment was RAD. A VA outpatient report, dated in May 1997, shows treatment for complaints that included wheezing and coughing. The assessment was asthma with acute bronchitis In December 1997, the veteran was afforded a VA pulmonary examination. The examination report indicates that he reported a history of smoking two packs per day for the last 12 years. He complained of choking and gagging easily, and that he was having difficulty swallowing. He stated that he used an inhaler. Upon examination, there was no evidence of respiratory failure or cor pulmonale. A CT scan of the chest was normal. A CT scan of the sinuses showed bilateral ethmoid and like-sphenoid sinusitis and thickening of the left nasal turbinate. Pulmonary function tests were reported as within normal limits. It was specifically reported that forced expiratory volume in one second (FEV-1) was normal, at 100 percent pre-bronchodilator and 116 percent post- bronchodilator. The examiner stated that these results showed mild post-dilator improvement, and that they ruled out any obstructive pulmonary disease. The diagnosis was RAD and sinusitis. B. Analysis The veteran essentially argues that his RAD is more severe than is currently evaluated. Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (1997). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In accordance with Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed the medical records and all other evidence of record pertaining to the history of the veteran's RAD. The Board has found nothing in the historical record which would lead to a conclusion that the current evidence on file is inadequate for rating purposes. In June 1989, the RO granted service connection for RAD, evaluated as 0 (zero) percent disabling (noncompensable). This condition is not specifically listed in the diagnostic codes of the VA’s disability rating schedule. Where the particular disability for which the veteran is service connected is not listed, it will be permissible to rate under a closely related disease or injury in which not only are the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20 (1997); see also Lendenmann v. Principi, 3 Vet. App. 345 (1992); Pernorio v. Derwinski, 2 Vet. App. 625 (1992). The veteran's RAD appears to be most analogous to bronchial asthma, as contemplated in 38 C.F.R. § 4.97, Diagnostic Code (DC) 6602, and this is the diagnostic code assigned by the RO. Initially, the Board notes that recent changes have amended the VA Rating Schedule, 38 C.F.R. Part 4, specifically the rating criteria for bronchial asthma. The revised rating criteria requires that consideration be given to various factors, including values of FEV-1 (Forced Expiratory Volume in one second), as measured by pulmonary function tests. 38 C.F.R. § 4.97, DC 6602 (effective October 7, 1996 (as printed in the Federal Register: September 5, 1996)). The Court of Veterans Appeals has held that where a law or regulation changes after a claim has been filed or reopened but before the administrative or judicial process has been concluded, the version most favorable to the appellant generally applies. Karnas v. Derwinski, 1 Vet. App. 308, 312-313 (1991). The Board notes that the RO evaluated the veteran’s RAD pursuant to both the old and revised versions of 38 C.F.R. 4.97 when it affirmed the veteran's noncompensable rating for RAD in February 1998. In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31 (1997). Under the new criteria, DC 6602 provides that a 10 percent rating is warranted where there is a FEV-1 of 71 to 80 percent of predicted or FEV-1/FVC of 71 to 80 percent or; intermittent inhalational or oral bronchodilator therapy. The Board finds that the evidence warrants an evaluation of 10 percent under DC 6602, (as in effect October 7, 1996). A review of the veteran’s December 1997 VA examination report shows that he has been shown to use a bronchodilator, and that use of his bronchodilator resulted in a mild improvement of his FEV-1 value. Accordingly, a 10 percent evaluation is warranted for RAD, with vasomotor rhinitis and a history of sinusitis. An evaluation in excess of 10 percent for RAD, with vasomotor rhinitis and a history of sinusitis, is not warranted under either the new or the old criteria. Under the prior version of DC 6602, a 30 percent disability evaluation was warranted for rather frequent moderate asthma attacks (separated only by 10-14 day intervals) with moderate dyspnea on exertion between attacks. 38 C.F.R. § 4.97, DC 6602 (as in effect prior to October 7, 1996). Under the new criteria, a 30 percent rating is warranted where there is a FEV-1 of 56- to 70-percent predicted, or; FEV-1/FVC of 56 to 70 percent, or; daily inhalational or oral bronchodilator therapy, or; inhalational anti-inflammatory medication. 38 C.F.R. § 4.97 (effective October 7, 1996 and thereafter). In this case, there are only two records of treatment since 1991 for the disorders in issue. Those records of treatment do not indicate a history of asthma attacks, and there is nothing else in the record to show that the veteran has rather frequent moderate asthma attacks. Furthermore, his December 1997 VA examination report shows that his FEV-1 values were 100 percent and 116 percent, pre- and post- bronchodilator, respectively. Accordingly, an evaluation in excess of 10 percent is not for application under either the new or the old criteria. As for the possibility of a higher rating under another diagnostic code, the Board finds that a rating in excess of 10 percent under either the new or the old diagnostic codes for sinusitis is not warranted. See Karnas, supra. Under the rating criteria used prior to October 7, 1996, a severe disability due to sinusitis, with frequently incapacitating recurrences, severe and frequent headaches, purulent discharge or crusting reflecting purulence, warranted a 30 percent evaluation. 38 C.F.R. § 4.97, DC 6513. Under the new criteria, the general rating criteria for sinusitis (Diagnostic Codes 6510 through 6514) states that sinusitis warrants a 30 percent rating where there are three or more incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or; more than six non- incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. 38 C.F.R. § 4.97 (effective October 7, 1996 (as printed in the Federal Register: September 5, 1996 (Volume 61, Number 173)). An incapacitating episode of sinusitis means one that requires bed rest and treatment by a physician. Id. In this case, there is no evidence of a severe disability due to sinusitis, nor is there any evidence of incapacitating episodes due to sinusitis which would warrant an evaluation of 30 percent under either the new or the old diagnostic criteria. In view of the all of the foregoing, the Board finds that the overall symptomatology more nearly approximates the criteria for a finding of a 10 percent evaluation under DC 6602. The record indicates that the veteran has shown, at most, that he requires intermittent inhalational or oral bronchodilator therapy. Accordingly, the Board must conclude that an evaluation of 10 percent for the veteran’s RAD, with vasomotor rhinitis and a history of sinusitis, is warranted. ORDER Service connection for an undifferentiated somatic disorder with depression is granted, subject to provisions governing the payment of monetary benefits. An evaluation of 10 percent is granted for reactive airway disease, with vasomotor rhinitis and a history of sinusitis, subject to provisions governing the payment of monetary benefits. R. F. WILLIAMS Member, Board of Veterans' Appeals NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991 & Supp. 1997), 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 which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals. - 2 -