Citation NR: 9612271 Decision Date: 05/02/96 Archive Date: 05/16/96 DOCKET NO. 94-14 295 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a chronic acquired psychiatric disorder, including post- traumatic stress disorder. 2. Entitlement to an increased (compensable) evaluation for calluses of the feet. 3. Entitlement to a permanent and total disability rating for pension purposes. ATTORNEY FOR THE BOARD Ronald R. Bosch, Counsel INTRODUCTION The veteran served on active duty from May 1967 to May 1973. The claims file contains a report of a rating decision dated in October 1974 wherein entitlement to service connection for a chronic acquired psychiatric disorder was denied. The veteran was notified by letter of the above denial and of his right to appeal. He did not file a timely appeal. On file is the report of an April 1993 rating decision wherein the prior denial of entitlement to service connection for a chronic acquired psychiatric disorder, including post- traumatic stress disorder was affirmed. The current appeal arose from a November 1993 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The RO determined that new and material evidence had not been submitted to reopen a claim of entitlement to service connection for a chronic acquired psychiatric disorder including post-traumatic stress disorder, denied entitlement to an increased (compensable) evaluation for calluses of the feet, and denied entitlement to a permanent and total disability rating for pension purposes. The case has been forwarded to the Board of Veterans’ Appeals (Board) for appellate review. The issues of whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a chronic acquired psychiatric disorder including post-traumatic stress disorder, and a permanent and total disability rating for pension purposes will be addressed in the REMAND portion of the decision. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that his bilateral foot calluses are more disabling than currently evaluated, thereby warranting entitlement to an increased (compensable) evaluation. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1995), has reviewed and considered all of the evidence and material of record in the veteran's claims files. 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 preponderance of the evidence is against a grant of entitlement to an increased (compensable) evaluation for calluses of the feet. FINDING OF FACT The veteran’s calluses of the feet are productive of disablement compatible with slight, if any, exfoliation, exudation or itching, if on a nonexposed surface. CONCLUSION OF LAW The criteria for an increased (compensable) evaluation for calluses of the feet have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991 and Supp. 1995); 38 C.F.R. §§ 4.7, 4.20, 4.118, Diagnostic Code 7806 (1995). REASONS AND BASES FOR FINDING AND CONCLUSION Initially, the Board notes that the veteran has presented evidence of a well grounded claim within the meaning of 38 U.S.C.A. § 5107(a), in that it is plausible that his calluses of the feet are more disabling than currently evaluated or have increased in severity. The Board is satisfied that all relevant facts have been properly developed, and that no further assistance to the veteran is required in order to comply with 38 U.S.C.A. § 5107(a). In accordance with 38 C.F.R. §§ 4.1, 4.2 (1995), and Schafrath v. Derwinski, 1 Vet.App. 589 (1991), the Board has reviewed the service medical records and all other evidence of record pertaining to the history of the veteran’s calluses of the feet. The Board has found nothing in the historical record which would lead to a conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant a detailed exposition of the remote clinical histories and findings pertaining to calluses of the feet. Disability evaluations are based on the comparison of clinical findings to the relevant schedular criteria. 38 U.S.C.A. § 1155. In determining the rating warranted, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet.App. 55, 58 (1994). A review of the service medical records discloses the appellant required treatment for bilateral foot problems including calluses. A September 1974 VA general medical examination of the feet concluded in a diagnosis of mild calluses of the feet. The RO granted entitlement to service connection for calluses of the feet with assignment of a noncompensable evaluation when it issued a rating decision in October 1974. During a July 1993 VA medical examination the veteran complained of bilateral foot pain associated with walking or standing for any period of time. On examination he was noted to have thick callus formation on the plantar aspect of the feet and heels and multiple corns between the toes. Pedal pulses were palpable. Range of motion appeared to be grossly intact. There was no pedal edema noted. Standing was erect. The appellant was unable to squat because of low back pain. Supination and pronation were within normal limits. Rising on toes and heels was performed without difficulty. Function of the feet appeared to be grossly within normal limits. There was no deformity noted. Gait was steady. The examiner diagnosed bilateral callus formation to plantar aspect of feet and heels with multiple pedal corns between toes. An x- ray of the feet disclosed no osseous, articular or soft tissue abnormalities. The radiologic impression was normal feet. The veteran’s calluses of the feet are rated noncompensable by analogy to eczema with slight, if any, exfoliation, exudation or itching, if on a nonexposed surface or small area. The next higher (compensable) evaluation of 10 percent requires exfoliation, exudation or itching, if involving an exposed surface. 38 C.F.R. § 4.118. The Board is of the opinion that calluses of the feet have not increased in severity as to warrant a grant of an increased (compensable) evaluation. In this regard the Board observes that despite the veteran’s complaints of bilateral foot pain when examined by VA in July 1993, the examiner found no evidence of any ascertainable disablement of either foot. Function of both feet was grossly within normal limits, gait was steady, and radiographic studies were within normal limits. The Board finds that application of the criteria under diagnostic code 7806 of the VA Schedule for Rating Disabilities does not permit a grant of the next higher (compensable) evaluation of 10 percent as compensable disablement or dysfunction of either foot due to calluses has not been shown by the evidence of record. 38 C.F.R. § 4.31 (1995). No question has been presented as to which of two evaluations would more properly classify the severity of calluses of the feet. 38 C.F.R. § 4.7. It is the judgment of the Board that the record does not support a grant of entitlement to an increased (compensable) evaluation for calluses of the feet with application of pertinent governing criteria. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.20, 4.118, Diagnostic Code 7806. ORDER Entitlement to an increased (compensable) evaluation for calluses of the feet is denied. REMAND A review of the record discloses the veteran is in receipt of disability benefits from the Social Security Administration. The medical records utilized by the Social Security Administration in awarding the veteran disability benefits have not been associated with the claims file. The United States Court of Veterans Appeals (Court) has held that the medical records utilized by the Social Security Administration in awarding disability benefits should be the subject of review by VA in determining a veteran’s eligibility to receive total disability benefits based on inability to work. Massors v. Derwinski, 2 Vet.App. 181 (1992). The Board notes that it has been more than twenty years since the veteran was afforded the benefit of a comprehensive medical examination by VA. In view of his claim for a permanent and total disability rating for pension purposes, the Board is of the opinion that association with the claims file of the records utilized by the Social Security Administration in awarding benefits and a contemporaneous comprehensive VA general medical examination would materially assist in the adjudication of the claimant’s appeal. Service connection for post-traumatic stress disorder requires medical evidence establishing a clear diagnosis of the disorder, credible supporting evidence that the claimed inservice stressor actually occurred, and a link, established by medical evidence, between current symptomatology and the claimed inservice stressor. 38 C.F.R. § 3.304(f) (1995). In this regard, the record available to the Board shows that the veteran trained and served as a radio operator with the United States Army in Vietnam. His decorations include a Vietnam Service Medal with 9 Bronze Service Stars, Vietnam Campaign Medal, a Meritorious Unit Citation, and a Bronze Service Star with one oak leaf cluster. The appellant is not shown to have been awarded the Combat Infantryman Badge, Purple Heart, or any other decoration reflective of combat activity. He has, however, provided descriptions in statements on file, as well as in a clinical setting, of his exposure to life threatening events in connection with his service in Vietnam. The Board notes that the stressor information which the veteran has supplied to the RO in January 1993 has not been referred to the United States Army and Joint Services Environmental Support Group (ESG) in an attempt to verify the claimed stressors. In this respect, the Board acknowledges that the information provided by the veteran probably is not as complete as the ESG will need to verify the existence of the veteran’s claimed stressors. However, the Board believes that significant enemy fire occurred at the place where the veteran served in Vietnam and that it may not be an unreasonable assumption, in view of his various awards and citations, that he experienced the events mentioned by him in his statement of January 1993. It is indeed possible, if not probable, that the ESG can verify frequent shelling or enemy fire at the times and location mentioned by the veteran in his January 1993 statement. The provisions of the VA Adjudication Procedure Manual M21-1 (Manual M21-1), pertaining to the adjudication of post-traumatic stress disorder provide that, “where records available to the rating board do not provide objective or supportive evidence of the alleged inservice traumatic stress disorder, it is necessary to develop this evidence.” Manual M21-1, Part VI, 7.46(f)(2) (emphasis added). Accordingly, as the development outlined in Manual M21-1 includes providing the information submitted by the veteran to the ESG, such development is mandatory. The Board also observes that while VA psychiatrists have not determined that the veteran has post-traumatic stress disorder, he has been diagnosed with this disorder by private medical health professionals and is in receipt of treatment for same. An examination based on a questionable history, however, is inadequate for rating purposes, West v. Brown, 7 Vet.App. 70, 77-8 (1994). Thus, it is necessary that the veteran be provided an examination where the examiner has an accurate and verified history of the appellant’s military service. Therefore, pursuant to VA’s duty to assist the veteran in the development of facts pertinent to his claims under 38 U.S.C.A. § 5107(a); 38 C.F.R. § 3.103(a) (1995), the Board will not decide the issues of whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a chronic acquired psychiatric disorder including post-traumatic stress disorder, and entitlement to a permanent and total disability rating for pension purposes pending a REMAND of the case to the RO for further development as follows: 1. The RO should obtain from the Social Security Administration the records pertinent to the veteran’s claim as well as the medical records relied upon concerning that claim. If records pertaining to such claim and medical evidence utilized in processing such claim are available, that fact should be entered in the claims file. 2. The RO should arrange for a comprehensive general medical examination to determine the nature and extent of severity of any disorders which may be present. The examinations are to be conducted in accordance with the diagnostic procedures outlined in the VA Physician’s Guide for Disability Evaluation Examinations (AMIE Worksheet Number 0505) (located in VBA/ARMS electronic database on CD-ROM update issued 29 February 1996), and all appropriate diagnostic studies must be conducted. The veteran’s claims file must be made available to and reviewed by the examiner prior to the examination. The examiner conducting the examination should be requested to provide an opinion as to the impact of the veteran’s disabilities on his ability to secure or following substantially gainful employment. 3. The RO should ask the veteran whether he has any information he can recall regarding his claimed stressors in addition to that provided by him in his January 1993 statement He is to be informed that the ESG requires as much detail as possible regarding any and all stressful events to which he was exposed in service in order to verify their occurrence. He should be asked to provide specific details of the claimed stressful events to the best of his ability. The veteran’s statement should include dates, places, detailed descriptions, units of service, duty assignments, as well as the full names, ranks, units of assignment and any other identifying information concerning other individuals involved in the events. In this respect, the Board takes this opportunity to inform the veteran that the Court has held that asking the veteran to provide the underlying facts, i.e., the names of individuals involved, the dates, and the places where the claimed events occurred, does not constitute an impossible or an onerous task. Wood v. Derwinski, 1 Vet.App. 190, 193 (1991). The RO should caution the veteran that failure to provide all of the requested information may have an adverse affect on the outcome of his appeal. 4. After obtaining the foregoing information from the veteran, the RO should forward it with copies of obtained service personnel records, a copy of his record of service (DD-214), and a copy of the veteran’s statement of January 12, 1993 to the United States Army and Joint Services Environmental Support Group (ESG), Building 5089, Stop # 387, Fort Belvoir, Virginia 22060, in an attempt to verify any claimed stressor. Any information obtained is to be associated with the claims file. 5. Following receipt of the ESG’s report, and the completion of any additional development warranted or suggested by that agency, the RO should prepare a report detailing the nature of any combat action, or inservice stressful event, verified by the ESG. If no combat stressor has been verified, the RO should so state in its report. This report is then to be added to the claims file. 6. Then, and only then, should the RO schedule the veteran for a special psychiatric examination by a board of two VA psychiatrists who have not previously seen or treated him. The examination is to be conducted in accordance with the diagnostic procedures outlined in the VA Physician’s Guide for Disability Evaluation Examinations (AMIE Worksheet Number 0910) (located in VBA/ARMS electronic database on CD-ROM update issued 29 February 1996), and all appropriate studies, including post- traumatic stress disorder sub scales, are to be performed. The claims file must be made available to and reviewed by the examiners prior to the examinations. In determining whether or not the veteran has post-traumatic stress disorder due to an inservice stressor the examiners are hereby notified that only the verified history detailed in the reports provided by the ESG and/or the RO may be relied upon. If the examiners believe that post-traumatic stress disorder is the appropriate diagnosis they must specifically identify which stressor detailed in the ESG’s and/or the RO’s report is responsible for the conclusion. Any and all opinions expressed must be accompanied by a complete rationale. The examiners must assign a Global Assessment of Functioning Score which is consistent with the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders, and explain what the assigned score means. The examination report should be typed. 7. Following completion of the foregoing the RO should review the claims file to ensure that all of the foregoing development has been completed in full. In particular, the RO should review the VA psychiatric examination report to verify that any diagnosis of post- traumatic stress disorder was based on the verified history provided by the ESG and/or the RO. If the examiners relied upon a history which was not verified, that examination report must be returned as inadequate for rating purposes. The Board emphasizes that the Court has held that a diagnosis of post-traumatic stress disorder, related to service, based on an examination which relied upon an unverified history is inadequate. West, 7 Vet.App. at 77. 8. Then, the RO should evaluate the veteran’s disabilities and assign a percentage evaluation for each. 9. After undertaking any development deemed appropriate in addition to that specified above, the RO should readjudicate the issues of whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a chronic acquired psychiatric disorder including post- traumatic stress disorder, and entitlement to a permanent and total disability rating for pension purposes consistent with the criteria under 38 U.S.C.A. §§ 1502(a)(1), 1521(a) (West 1991); 38 C.F.R. §§ 3.321(b)(2), 4.15, 4.16, 4.17, 4.25 (1995). If the benefits on appeal are not granted to the veteran’s satisfaction, the RO should issue a supplemental statement of the case. The supplemental statement of the case should include the provisions of the appropriate diagnostic codes under which the RO has rated each of the veteran’s disabilities, as well as a discussion of the average person standard and unemployability standard by which a permanent and total disability rating for pension purposes may be assigned. A reasonable period of time for a response should be afforded. Thereafter, the case should be returned to the Board for final appellate review, if otherwise in order. By this REMAND, the Board intimates no opinion as to any final outcome warranted. No action is required of the veteran until he is notified by the RO. BRUCE KANNEE Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741 (1994), 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 Supp. 1995), 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 (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) (1994). - 2 -