Citation NR: 9635755 Decision Date: 12/20/96 Archive Date: 12/24/96 DOCKET NO. 94-39 287 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in San Juan, Puerto Rico THE ISSUES 1. Entitlement to service connection for hypertensive disease. 2. Entitlement to service connection for a psychiatric disability, including a post-traumatic stress disorder. 3. Entitlement to an increased rating for skin disease, classified as dermatophytosis, currently assigned a 10 percent evaluation. REPRESENTATION Appellant represented by: Puerto Rico Public Advocate for Veterans Affairs WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD R. P. Harris, Counsel INTRODUCTION The appellant had active service from September 1970 to September 1972. This matter came before the Board of Veterans’ Appeals (Board) on appeal from a September 1990 rating decision of the San Juan, Puerto Rico, Regional Office (RO), which confirmed a noncompensable rating for skin disease, classified as dermatophytosis. After a June 1991 hearing was held at the RO, the hearing officer awarded an increased rating of 10 percent for that disability (an August 1991 implementing rating decision granted an increased rating of 10 percent for that disability, effective February 1989). Appellant appealed that rating decision. Subsequently, appellant appealed an October 1991 rating decision which denied direct-incurrence and secondary service connection for hypertensive disease and denied reopening of a claim of entitlement to service connection for a psychiatric disability (historically, direct-incurrence and secondary service connection for a psychiatric disability had been denied in respective April 1973 and November 1978 rating decisions; and after being timely notified of those adverse rating decisions, appellant did not file a Notice of Disagreement therewith). After a March 1993 hearing was held at the RO, the hearing officer, in a November 1993 decision, determined that new and material evidence had been submitted to reopen the claim for service connection for psychiatric disability, based upon recently submitted evidence suggesting that appellant might have a post-traumatic stress disorder. Appellant appealed a subsequent January 1996 rating decision which, in part, denied service connection for a psychiatric disability, including a post-traumatic stress disorder, on the merits. Accordingly, the Board will address the psychiatric disability service connection issue on a de novo basis. Statements by appellant dated in July 1994 (provided in response to the RO’s June 1994 letter requesting clarification as to which disabilities were being claimed as Agent Orange exposure residuals) are construed as an intention to request service connection for skin disease due to Agent Orange exposure. Since this Agent Orange issue has not been developed by the RO, it is referred to the RO for appropriate action. It does not appear that this issue is inextricably intertwined with the issue of an increased rating for dermatophytosis (a fungal skin disease). Kellar v. Brown, 6 Vet.App. 157 (1994). REMAND Appellant contends, in essence, that service connection on either a direct-incurrence, presumptive, or secondary basis is warranted for his hypertension and psychiatric disability; and that his service-connected skin disease is of such severity as to warrant a higher rating. Regarding secondary service connection, he asserts that his service-connected skin disease caused him to be nervous with resultant high blood pressure; and that medications taken for nervousness caused his hypertension. With respect to the hypertension service connection issue, initial review of the evidentiary record reveals that during service in December 1970, his blood pressure was recorded as 142/76. On examination for service separation, his blood pressure was 118/74. On a March 1973 VA examination, several months after service separation, his blood pressure was 140/80. Hypertension was initially diagnosed on a March 1978 VA examination. It is unclear from the record whether the slightly elevated systolic blood pressure readings in service and on examination several months after service are of any clinical significance, or may represent the onset of hypertensive disease. It does not appear that the RO has requested a medical opinion regarding the etiology of his hypertensive disease. The Board must consider only independent medical evidence to support its findings rather than provide its own medical judgment. Colvin v. Derwinski, 1 Vet.App. 171 (1991). With regards to the psychiatric disability service connection issue, the service records reflect that appellant served in Vietnam from November 1971 to March 1972, that his military occupational specialty was cook, and that his awards included a Bronze Star medal (without a “V” device indicated). In a February 1994 written statement, he alleged that approximately in December [1971] or January [1972] at “Andrews” fire base, his unit was attacked and a friend “E-4 Pacheco” was “blown to pieces”, losing his legs and an arm. He stated that he did not know whether his friend survived or died. Additionally, he alleged that in February 1972 at “Cu Chi”, there was a mess-hall kitchen fire and explosion, which caused casualties; and that he was awarded a Bronze Star medal. There is no indication in the claims folder that the RO sent this information to a military support group for verification of these alleged service stressors. The service medical records reveal that in April 1971, after being in a fight, he appeared agitated, and was prescribed Thorazine. A psychiatric disability was not clinically reported on examination for service separation. On March 1973 VA examination, several months after service separation, he reportedly was unemployed, lonely and anxious; and situational depressive reaction was diagnosed. Clinical evidence dated subsequent to January 1977 reflect that anxiety reaction, psychophysiologic skin disorder with depressive reaction, schizophrenia, alcoholism, generalized anxiety disorder, and post-traumatic stress disorder were assessed. A subsequent February 1994 VA board of psychiatrists examination report concluded that appellant did not meet the diagnostic criteria for a post-traumatic stress disorder. However, it appears that this February 1994 psychiatric examination is inadequate, since it was conducted without benefit of any attempted verification of the claimed service stressors. In pertinent part, 38 C.F.R. § 3.304(f) (1995) provides: “[s]ervice connection for post-traumatic stress disorder requires medical evidence establishing a clear diagnosis of the condition, 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.” Additionally, with respect to the increased rating for skin disease issue, the only skin disability for which service connection is in effect is dermatophytosis. The April 1973 rating decision sheet that granted service connection for dermatophytosis referred to that condition as involving the feet, but did not expressly limit it to the feet. Recently, fee-basis dermatologic examinations in September 1994, May 1995, and July 1996 (the latter included color photographs of appellant’s affected skin areas) indicated that appellant had skin problems involving the upper extremities, axillae, leg, and feet; and eczema, tinea pedis and corporis, and contact dermatitis were noted. The clinical evidence is unclear as to the extent and current severity of the service-connected dermatophytosis. Disability determinations should be based upon the most complete evaluation of the claimant’s condition that can feasibly be constructed. Schafrath v. Derwinski, 1 Vet.App. 589 (1991). Accordingly, the case is REMANDED for the following: 1. The RO should request appellant to provide another written statement (preferably, a sworn statement) detailing specific stressors he experienced in service. He should provide specific information, such as dates and location of the incidents, unit assignments, who was involved, and what occurred. In the event he cannot recall the specific dates of the incidents and other particulars, he should as closely approximate the dates and give as much information as possible. 2. The RO should request appellant to provide any relevant clinical records (not already of record) that he may have in his possession, as well as the complete names and addresses of any physicians or medical facilities which have provided him relevant treatment. All available, clinical records (as distinguished from physicians’ statements based upon recollections of previous treatment) of such treatment should be obtained from the specified health care providers. The appellant should be requested to sign and submit appropriate consent forms to release any private medical reports to the VA. Any records obtained should be associated with the claims folder. 3. The RO should obtain any additional, relevant VA medical reports, and associate these with the claims folder. 4. Such additional information and/or records provided by appellant, together with any pertinent information and records currently in the claims folder (including, but not limited to, his service records which document his military assignment as a cook with F Troop, 2d Squadron, 11th Armored Cavalry Regiment, during his Vietnam service from November 1971 to March 1972, and the history of his military experiences contained in a January 1993 VA outpatient treatment report and appellant’s February 1994 written statement), should be sent to the United States Army and Joint Services Environmental Support Group (ESG), if indicated, for verification of stressors. The RO should attempt to verify whether the Bronze Star medal was awarded for heroism versus meritorious achievement. The RO should request information as to whether appellant was, in fact, exposed to a service stressor as claimed. 5. The RO should schedule appellant for an examination by a board of psychiatrists to determine the nature and etiology of any psychiatric disorder that may be present. The examiners should review the entire claims folder and express an opinion, including degree of probability, regarding whether any acquired psychiatric disorder, including anxiety disorder and a post-traumatic stress disorder, is currently manifested. If any acquired psychiatric disorder, including anxiety disorder and a post- traumatic stress disorder, is currently manifested, is it (a) causally or etiologically related to appellant’s military service, or (b) causally or etiologically related to, or post-service aggravated by, the service-connected disability)? The term “aggravate” used herein refers to post-service aggravation of a non-service-connected condition by a service-connected condition, to wit: an increase in severity of a non-service- connected disability (any additional impairment of earning capacity) attributable to and caused by an already service-connected condition. See Allen v. Brown, 7 Vet.App. 439 (1995). The report of examination should contain a detailed social, industrial, and military history, as well as clinical findings upon which the diagnosis is based, and provide a detailed rationale for the medical conclusions. If medically indicated, a psychological examination, with appropriate testing, should be accomplished. In making this determination, the psychiatric examiners should consider any ESG research information provided; and utilize the nomenclature regarding post- traumatic stress disorder set forth in the American Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders, 4th edition (DSM-IV). 6. The RO should have a cardiologist review the entire claims folder and render an opinion, with degree of probability expressed, as to the nature and etiology of appellant’s hypertensive disease (e.g., what is its approximate date of onset; and is it causally or etiologically related to, or post-service aggravated by, the service-connected disability)? The term “aggravate” used herein refers to post-service aggravation of a non-service-connected condition by a service-connected condition, to wit: an increase in severity of a non-service- connected disability (any additional impairment of earning capacity) attributable to and caused by an already service-connected condition. See Allen. The examiner should comment on the clinical significance, if any, of the blood pressure readings recorded in the service medical records and on a March 1973 VA examination, several months after service separation (i.e., are these indicative of essential hypertension versus a clinically insignificant finding)? 7. The RO should schedule appellant for a dermatologic examination with respect to the issue of an increased rating for skin disease, classified as dermatophytosis. The dermatologist is requested to review the entire claims folder prior to examination, and determine the nature, extent, and severity of appellant’s skin disorder currently manifested and its etiology. All indicated tests and studies should be conducted, and color photographs of the affected areas of the skin should be accomplished. The dermatologist is requested to provide a detailed description of the nature and extent of any skin disease manifested, including but not limited to: the location and number of any skin lesions; whether ulceration, crusting, exfoliation, exudation, or itching is involved and if so, the severity thereof (e.g., is it extensive); whether the skin disease is markedly disfiguring or exceptionally repugnant; whether the skin disease has “systemic or nervous manifestations”; and whether the skin disease is responsive to treatment. The dermatologist should differentiate which symptoms are reasonably attributable to the service- connected fungal skin disease versus any other skin disorder that may be present. If any other skin disease is manifested, the dermatologist should express an opinion as to the degree of probability that it may be part and parcel of, or otherwise related to, the service- connected fungal skin disease. The degree of functional impairment or interference with daily activities, if any, by the service-connected skin disability should be described in detail. 8. If these matters cannot be medically determined without resort to mere conjecture, this should be commented upon in the reports. 9. The RO should review any additional evidence and readjudicate service connection for hypertensive disease and any acquired psychiatric disorder under appropriate legal theories; e.g., direct- incurrence, presumptive, and secondary (secondary service connection including service-connected disability as proximate cause of non-service-connected disability, and post-service aggravation of non-service-connected disability by service-connected disability). See 38 C.F.R. § 3.310(a) (1995), which provides, in pertinent part, “[d]isability which is proximately due to or the result of a service-connected disease or injury shall be service connected.” See also Allen, supra. 10. The RO should rerate the service- connected skin disability, with consideration of applicable court precedents and statutory and regulatory provisions. The RO should clarify whether any additional skin disease, if present, should be considered part and parcel of the service-connected skin disorder. In other words, if the RO has not already considered all skin manifestations to be part and parcel of the service-connected fungal skin disease, it should adjudicate the issue of service connection for additional skin disease. In order to avoid undue delay in this case, the RO should make certain that the instructions contained in this REMAND decision, detailing the requested development, have, in fact, been substantially complied with. When this development has been completed, and if the benefits sought are not granted, the case should be returned to the Board for further appellate consideration, after compliance with appropriate appellate procedures, including issuance of a supplemental statement of the case. No action by the appellant is required until he receives further notice. The Board intimates no opinion, either legal or factual, as to the ultimate disposition warranted in this case, pending completion of the requested development. MICHAEL D. LYON 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. Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. This 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) (1995). - 2 -