Citation Nr: 9830387 Decision Date: 10/13/98 Archive Date: 10/21/98 DOCKET NO. 95-31 776 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to an increased rating for post-traumatic stress disorder (PTSD), currently evaluated as 30 percent disabling. 2. Entitlement to service connection for alcoholism secondary to PTSD. 3. Entitlement to service connection for a cervical spine injury with incomplete quadriplegia secondary to PTSD. 4. Entitlement to service connection for loss of bowel and bladder control secondary to PTSD. 5. Entitlement to a permanent and total disability rating for pension purposes, to include as pursuant to an extra- schedular rating under 38 C.F.R. § 3.321(b)(2). 6. Entitlement to special monthly pension based on the need for regular aid and attendance or by reason of being housebound. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD Andrew E. Betourney, Associate Counsel INTRODUCTION The veteran served on active duty from November 1965 to September 1968. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a various rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which denied the veteran’s claim for a disability rating in excess of 30 percent for his service- connected PTSD, denied his claims for service connection for alcoholism, a cervical spine injury, and loss of bowel and bladder control, all as secondary to PTSD, denied his claim for a permanent and total disability rating for pension purposes, to include as pursuant to an extra-schedular rating under 38 C.F.R. § 3.321(b)(2), and denied his claim for special monthly pension based on the need for regular aid and attendance or by reason of being housebound. The veteran filed timely appeals to these adverse determinations. The issues of the veteran’s entitlement to a permanent and total disability rating for pension purposes, to include as pursuant to an extra-schedular rating under 38 C.F.R. § 3.321(b)(2), and entitlement to special monthly pension based on the need for regular aid and attendance or by reason of being housebound, will be addressed in the REMAND portion of this decision. CONTENTIONS OF APPELLANT ON APPEAL The veteran essentially contends that an increased rating is warranted for his service-connected PTSD because it is more severely disabling than is represented by the 30 percent rating currently assigned. In support of this contention, he maintains he is incapacitated by his PTSD, and experiences such symptoms as depression, vivid nightmares, sleep disturbance and insomnia, lack of energy, excessive anger, low self-esteem, feelings of guilt, an inability to relax, daily intrusive thoughts, and alcohol abuse. He also contends that service connection is warranted for alcoholism, a cervical spine injury, and loss of bowel and bladder control, all as secondary to his PTSD. In support of this contention, he maintains that his alcohol abuse is a manifestation of his PTSD disorder, and should thus be service connected on a secondary basis. He also maintains that he injured his cervical spine and incurred bowel and bladder control problems as the result of a bicycle accident he sustained after having consumed several beers. He thus maintains that this accident, and the resultant injuries, are due to his alcohol abuse problem which, in turn, is a manifestation of his PTSD, and that service connection on a secondary basis should thus be granted for these disorders as well. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1998), 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 supports the grant of a 100 percent rating for the veteran’s service- connected PTSD. The Board further decides that the evidence supports the grant of service connection on a secondary basis for alcoholism, a cervical spine injury, and loss of bowel and bladder control. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appeal has been obtained by the RO. 2. The veteran is socially isolated in his community due to his service-connected PTSD. 3. The veteran’s alcoholism is a manifestation of his PTSD. 4. The bicycle accident in which the veteran incurred both a cervical spine injury and loss of bowel and bladder control was due to his service-connected alcoholism. CONCLUSIONS OF LAW 1. The schedular criteria for a 100 percent evaluation for PTSD have been met. 38 C.F.R. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.1-4.3, 4.7, 4.132, Diagnostic Code 9411 (1996, 1998). 2. The veteran’s alcoholism is proximately due to his service-connected PTSD. 38 C.F.R. § 3.310(a) (1998). 3. The veteran’s cervical spine injury is proximately due to his service-connected alcoholism. 38 C.F.R. § 3.310(a) (1998). 4. The veteran’s loss of bowel and bladder control is proximately due to his service-connected alcoholism. 38 C.F.R. § 3.310(a) (1998). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As a preliminary matter, the Board observes that the subsequent to the issuance of the latest supplemental statement of the case (SSOC) by the RO in June 1998, the veteran submitted a medical statement, dated in September 1998, from Craig N. Bash, M.D., a private neuroradiologist. This letter was submitted in support of the veteran’s increased rating claim and his three secondary service connection claims, as listed above. No waiver of initial RO consideration of this evidence was provided by either the veteran or his service representative. Normally, in this situation the claim would need to be remanded to the agency of original jurisdiction for initial adjudication of the issues to which this evidence relates. However, given the complete grant by the Board of the benefits sought on appeal as to all four of the issues to which this evidence relates, the Board finds that there is no prejudice to the veteran from the Board’s initial adjudication these matters, and thus determines that it is proper to proceed with adjudication of these issues at this time. I. Increased Rating for PTSD The veteran’s claim for an increased rating for PTSD is well grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). The United States Court of Veterans Appeals (Court) has held that a mere allegation that a service-connected disability has increased in severity is sufficient to render the claim well grounded. See Caffrey v. Brown, 6 Vet.App. 377, 381 (1994); Proscelle v. Derwinski, 2 Vet.App. 629, 632 (1992). The Board is also satisfied that all relevant facts needed to adjudicate a schedular evaluation of the veteran’s PTSD have been properly developed. No further assistance to the veteran is required on that issue to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a). Evidence relevant to the current level of severity of the veteran’s PTSD includes various VA outpatient treatment notes dated from May 1991 to August 1997. These records indicate several diagnoses of PTSD, as well as complaints of symptomatology such as sleep disturbance/insomnia, anxiety, intrusive recollections of Vietnam, fatigue, nightmares, memory loss, poor appetite, self-isolation, and discomfort around others. Often during this period, he reported that these symptoms were becoming either more frequent or more intense. In August 1994, the veteran underwent a VA examination. At that time, he presented with many of these same complaints, including painful, intrusive memories of Vietnam, nightmares of combat, avoidance and withdrawal symptoms, avoidance of crowds, decreased interest in hobbies, depression, hopelessness, hyperarousal, difficulty sleeping, irritability, difficulty concentrating, an exaggerated startle response, and stomach aches due to anxiety. He reported having been divorced once and being unemployed, and said that he had been unable to get out and engage in any social activities, even prior to a bicycle accident in March 1994 which left him partially paralyzed. Following a clinical examination, the examiner diagnosed PTSD. He further opined as follows: “The patient, clearly, is having more difficulties since his physical difficulties secondary to his [bicycle] accident but almost all of the symptoms of PTSD were present at a fairly significant level prior to his accident, that is, the patient is socially isolated now, but was socially isolated before his accident.” In March 1997, the veteran again underwent a VA examination. At that time, the veteran essentially repeated the same complaints as above. He stated that he lived with his long- term girlfriend, and spent much time reading, although it had recently become more difficult to concentrate. He explained that he did not watch television because he was upset easily by it. The only time he left the house was to go to doctor appointments, and did not do any shopping. He often did not leave his room, even when visitors came to the house to see him. His girlfriend stated that he just wanted to be left alone “all the time.” The examiner diagnosed chronic PTSD. Furthermore, the examiner stated that the veteran’s PTSD was manifested by intrusive memories, nightmares, diminished interest in normal activities, detachment from others, restricted affect, slowing of thinking, irritability, appetite disturbance, and loss of energy. He also stated that the “[c]urrent intensity is moderate, with impairments in his ability to work and ability to maintain close relationships with others.” Also of record is a statement dated in September 1998 from Craig N. Bash, M.D., a neuroradiologist at the Uniformed Services University of the Health Sciences. Following a thorough review of relevant prior examination reports, particularly those relating to the veteran’s PTSD, the examiner stated that “[t]he medical evidence is clear and established this patient’s social isolation is to such a degree as to result in virtual isolation in the community since at least 1991.” Disability evaluations are determined by the application of the 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. 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. See Francisco v. Brown, 7 Vet.App. 55, 58 (1994). 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. Any reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. The veteran’s PTSD has been evaluated as 30 percent disabling under the provisions of 38 C.F.R. § 4.132, Diagnostic Code (DC) 9411. Pursuant to the rating criteria in effect at the time the veteran perfected his appeal, a 30 percent rating was warranted if the PTSD caused definite impairment in the ability to establish or maintain effective and wholesome relationships with people. The psychoneurotic symptoms must have resulted in such reduction in initiative, flexibility, efficiency, and reliability levels as to produce definite industrial impairment. A 50 percent rating was warranted if the ability to establish or maintain effective or favorable relationships with people was considerably impaired. By reason of psychoneurotic symptoms, the reliability, flexibility, and efficiency levels must have been so reduced as to result in considerable industrial impairment. A 70 percent rating was warranted if the ability to establish and maintain effective or favorable relationships with people was severely impaired. The psychoneurotic symptoms must have been of such severity and persistence that there was severe impairment in the ability to obtain or retain employment. Finally, a 100 percent rating was warranted if the attitudes of all contacts except the most intimate were so adversely affected as to result in virtual isolation in the community. Totally incapacitating psychoneurotic symptoms bordering on gross repudiation of reality with disturbed thought or behavioral processes associated with almost all daily activities such as fantasy, confusion, panic, and explosions of aggressive energy resulting in profound retreat from mature behavior must have been present. Finally, the veteran must have been demonstrably unable to obtain or retain employment. The United States Court of Veterans Appeals (Court) has determined that the three criteria enumerated for a 100 percent rating are to be viewed separately, such that the veteran need only satisfy one of the three criteria in order to warrant the grant of a 100 percent rating. See Johnson v. Brown, 7 Vet. App. 95, 99 (1994). A review of the evidence detailed above reveals that the veteran is indeed virtually isolated in his community. The veteran lives alone with his girlfriend, is unemployed, and has repeatedly stated that he stays by himself in his home virtually all of the time due to an inability to tolerate being around other people. He has been divorced once, and appears to be alienated from his former wife and daughter from that marriage. He states that he has no friends and never socializes, spending most of his time in his room reading, and is unable to tolerate watching television. Furthermore, he was described by a VA examiner in August 1994 as being “socially isolated” even prior to his incapacitating bicycle accident. Similarly, the VA examiner who performed the veteran’s March 1997 examination discussed the veteran’s isolation at home, and noted that his PTSD has caused “impairments in his … ability to maintain close relationships with others.” Finally, and most probatively, in his September 1998 statement, Dr. Bash reviewed these and other reports relating to the veteran’s PTSD, and concluded that “this patient’s social isolation is to such a degree as to result in virtual isolation in the community…” Therefore, since the evidence shows that the veteran is virtually isolated in his community due to his PTSD, the Board determines that the severity of the veteran’s PTSD most closely approximates the criteria set out for a 100 percent evaluation under the former provisions of DC 9411. The Board notes that effective November 7, 1996, VA revised the criteria for diagnosing and evaluating psychiatric disabilities, including PTSD, as codified at 38 C.F.R. §§ 4.125-4.132. See 61 Fed. Reg. 52,695-52,702 (1996). The new criteria for evaluating service-connected psychiatric disabilities is codified at newly designated 38 C.F.R. § 4.130. 61 Fed. Reg. 52,700-1. Pursuant to Karnas v. Derwinski, 1 Vet. App. 308 (1991), where the law or regulation changes after a claim has been filed or reopened but before the administrative or judicial appeal process has been concluded, the version most favorable to the appellant normally applies, absent Congressional intent to the contrary. However, since the Board has determined that the veteran is entitled to the maximum 100 percent schedular evaluation under the former provisions of Diagnostic Code 9411, an analysis under the new regulations could not result in a higher rating and is thus not necessary. II. Service Connection for Alcoholism As a preliminary matter, the Board finds that the veteran’s claim for service connection for alcoholism secondary to PTSD is plausible or capable of substantiation and is thus well grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). 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). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303(a) (1998). If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b) (1998). In determining whether an appellant is entitled to service connection for a disease or disability, VA must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107(b) (West 1991); Gilbert v. Derwinski, 1 Vet.App. 49 (1990). In addition, service connection may be established on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (1998). Additional disability resulting from the aggravation of a nonservice-connected condition is also compensable under 3.310(a). Allen v. Brown, 7 Vet.App. 429, 448 (1995) (en banc). The veteran has claimed that he currently suffers from alcohol dependence which is due to his service-connected PTSD, since his alcoholism is essentially a manifestation or result of his PTSD, and that he is therefore entitled to service connection for alcohol abuse on a secondary basis pursuant to the provisions of 38 C.F.R. 3.310(a) (1997), which states that “[d]isability which is proximately due to or the result of a service-connected disease or injury shall be service connected.” However, the Board also observes that 38 U.S.C.A. § 1110 states that “no compensation shall be paid if the disability is the result of the person’s own willful misconduct or abuse of alcohol or drugs.” See also 38 C.F.R. §§ 3.1(n), 3.301 (1997). In an attempt to reconcile this apparent contradiction, VA General Counsel issued an opinion, dated in January 1997, which stated in relevant part that: Section 8052 of the Omnibus Budget Reconciliation Act of 1990, Pub. L. No. 101-508, § 8052, 104 Stat. 1388, 1388- 351, prohibits, effective for claims filed after October 31, 1990, the payment of compensation for a disability that is a result of a 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 for 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 cause the disability or on the basis that a service-connected disease or injury aggravated the disability. VAOPGCPREC 2-97 (January 16, 1997) (emphasis added). In July 1998, the Court further clarified the dictates of 38 U.S.C.A. § 1110 as prohibiting only the payment of compensation for a disability resulting from a veteran’s own alcohol or drug abuse secondary to a service-connected disorder, thus permitting the underlying grant of service connection for such disability, albeit without compensation. Barela v. West, No. 97-677 (U.S. Vet. App. July 14, 1998). Therefore, the Board shall analyze the veteran’s claim for service connection for alcoholism secondary to service- connected PTSD. In reviewing the veteran’s claims folder, the Board observes that the veteran has repeatedly been diagnosed over many years as suffering from an alcohol abuse disorder, as diagnosed by both VA and private physicians. Thus, the Board’s analysis must turn to the question of whether the veteran’s alcoholism is etiologically related to his service- connected PTSD. In this regard, the Board finds particularly probative the report of a VA examination conducted in August 1994. At that time, the examiner noted that “throughout the post war period the patient drank heavily as a way to self-medicate himself in his words, to make himself forget his painful memories.” In his diagnosis, the examiner concluded the following: “In my opinion, the previous diagnoses of depression and alcohol abuse are, in fact, manifestations of the primary diagnosis of Post Traumatic Stress Disorder. The patient, in other words, was attempting to self-medicate himself with alcohol…” The Board notes that this conclusion is entirely consistent with the veteran’s own statements made at the time of subsequent examinations, in which he stated that he drank in order to either forget his disturbing nightmares and flashbacks or to alleviate his sleeping difficulties. Furthermore, no medical professional has stated that the veteran’s alcoholism was not related to his PTSD. Therefore, the Board finds that the evidence supports the veteran’s claim for service connection for alcoholism secondary to PTSD, subject to the restrictions on the award of compensation outlined above. III. Service Connection for a Cervical Spine Injury and Loss of Bowel and Bladder Control The evidence shows that in March 1994, the veteran was involved in a single-party accident in which he fell off his bicycle while riding to a convenience store several blocks from his home. On an April 1994 VA Report of Accidental Injury, the veteran marked “Yes” to the question of whether alcoholic intoxication, narcotics, drugs or misconduct of any kind on the part of the persons concerned in this accident were involved, and further explained that he had “had a couple of beers” before the accident. Furthermore, on a VA discharge summary reflecting hospitalization from March to June 1994, the examining physician stated that the veteran had originally been transferred to that facility “after sustaining a cervical spine injury in a fall from a bicycle while intoxicated.” Based in part on this evidence, in October 1994 the RO issued an Administrative Decision that “the injuries sustained in the 3-17-94 accident and the resulting disabilities were due to the veteran’s own willful misconduct and would not entitle him to receive VA disability benefits due to these disabilities.” Specifically, the RO found that “[t]he veteran should have realized that he was incapable of safely operating a bicycle while intoxicated. Since he did so with disregard [for] the possible consequences, the injuries he sustained in his fall are considered to be the result of his own willful misconduct.” Although the veteran’s service representative has made much of the fact that no blood alcohol content readings from the time of the accident are of record, thus apparently casting into doubt VA’s conclusion that the veteran was under the influence of alcohol at the time of his accident, the Board notes that the veteran has not made the same claim. On the contrary, the veteran has repeatedly and forcefully claimed that he was intoxicated at the time of the accident, and that he should received secondary service connection for the resultant injuries precisely because his PTSD-related alcoholism was a causative factor in his accident. The Board notes that there is no question but that the veteran has suffered from a cervical spine injury, to include incomplete quadriplegia, and bowel and bladder control problems since the time of, and as a result of, his bicycle accident in March 1994. Furthermore, the veteran has asserted, and VA has by its October 1994 Administrative Decision conceded, that this accident occurred because the veteran was intoxicated at the time of the accident. Thus, the Board concludes that the veteran’s cervical spine injury and his loss of bowel and bladder control are indeed disabilities resulting from a veteran’s own alcohol or drug abuse secondary to a service-connected disorder (PTSD), and, as such, meet the requirements for secondary service connection as set out in the law and regulations, as interpreted by Barela. However, as was the case with the claim for service connection for alcoholism itself, these grants are also subject to the statutory bar to the payment of compensation for disabilities which result from a veteran’s own alcohol or drug abuse. ORDER An increased disability rating to 100 percent for the veteran’s PTSD is granted, subject to the controlling regulations governing the payment of monetary awards. Service connection for alcoholism due to service-connected PTSD is granted. Service connection for a cervical spine injury with incomplete paraplegia due to service-connected alcoholism is granted. Service connection for loss of bowel and bladder control due to service-connected alcoholism is granted. REMAND The veteran has also appealed the denial of his claims for a permanent and total disability rating for pension purposes, to include as pursuant to an extra-schedular rating under 38 C.F.R. § 3.321(b)(2), and for special monthly pension based on the need for regular aid and attendance or by reason of being housebound. As a preliminary matter, the Board determines that, in light of the Board’s instant grant of a 100 percent schedular evaluation for his PTSD, the RO needs to clarify whether the veteran still desires to pursue his appeal on either or both of these matters. Furthermore, the Board observes that the veteran filed his claim for a permanent and total disability rating for pension purposes several years prior to filing his claim for an increased rating for PTSD, which is a fact which should be taken into consideration by the RO if the veteran chooses to pursue his pension claim. In addition, the Board observes that following the veteran’s March 1997 VA examination, the examiner rendered Axis III diagnoses of, inter alia, emphysema and arthritis. However, following a review of subsequent rating decisions, it does not appear that the RO considered the impact, if any, that these nonservice-connected disorders have had on the veteran’s eligibility for a permanent and total disability rating for pension purposes or for special monthly pension based on the need for regular aid and attendance or by reason of being housebound. Therefore, in order to give the veteran every consideration with respect to the present appeal and to accord the veteran due process of law, the Board finds that further development with respect to these issues is warranted. Accordingly, the case is REMANDED to the RO for the following actions: 1. The RO should contact the veteran and request that he clarify whether he still wishes to pursue his appeal of his claims for a total disability rating for pension purposes and/or for special monthly pension based on the need for regular aid and attendance or by reason of being housebound. 2. If the veteran expresses a desire to pursue either or both of these claims, then the RO should readjudicate such claim(s) in light of the action taken by the Board in this decision and the diagnoses of emphysema and arthritis contained in the March 1997 VA examination report. If the determination(s) remain(s) adverse to the veteran, he and his representative should be furnished a supplemental statement of the case and be afforded the applicable time to respond. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if appropriate. The purpose of this REMAND is to obtain additional development and adjudication, and the Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. The veteran is free to submit any additional evidence he desires to have considered in connection with his current appeal. No action is required of the veteran until he is notified. CONSTANCE B. TOBIAS Member, Board of Veterans’ Appeals NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991 & Supp. 1998), 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) (1997). - 2 -