Citation Nr: 1754166	
Decision Date: 11/28/17    Archive Date: 12/07/17

DOCKET NO.  12-00 116A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD).

2.  Entitlement to a rating in excess of 10 percent for residuals of left distal radius fracture.

3.  Entitlement to a rating in excess of 10 percent for scar of the right leg, status post gunshot wound.


REPRESENTATION

Appellant represented by:	  Adam Neidenberg, Attorney-at-Law


ATTORNEY FOR THE BOARD

G. E. Wilkerson, Counsel
INTRODUCTION

The Veteran served on active duty from November 1971 to February 1975.

This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.

The Board notes that the Veteran's claim and the RO's rating decision included only a claim for service connection for PTSD. In Clemons v. Shinseki, 23 Vet. App. 1   (2009), the United States Court of Appeals for Veterans Claims (Court) addressed the scope of a claim in regard to the disability claimed.  In Clemons, the Court held that, in determining the scope of a claim, the Board must consider the claimant's description of the claim, symptoms described, and the information submitted or developed in support of the claim. Id. at 5. As the record reflects diagnoses of other psychiatric disorders, and in light of the Court's decision in Clemons, the Board has re-characterized the issue, to include a claim for service connection for acquired psychiatric disorder to include PTSD, as noted on the title page.

In June 2015, the Board remanded the matter to provide the Veteran the requested Board hearing.  However, in a January 2017 written correspondence, the Veteran withdrew his request for a Board hearing.  The Board will accordingly proceed with an appellate decision in this matter.

The issue of entitlement to an increased rating for residuals of left distal radius fracture is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1. The Veteran does not have PTSD.

2.  An acquired psychiatric disorder, diagnosed as bipolar disorder, had its onset in service.

3.  The Veteran's scar of the right leg, status post gunshot wound, is manifested by two painful scars; the scars measure less than 39 square centimeters, without objective evidence of other functional impairment.


CONCLUSIONS OF LAW

1. The criteria for service connection for bipolar disorder have been met.  38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017).

2.  The criteria for a compensable rating for scar of the right leg, status post gunshot wound, are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.7, 4.10, 4.118, Diagnostic Codes 7801-7805 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Service Connection

Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability.  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a).

With chronic disease shown as such in service (or within the presumptive period under § 3.307), so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes.  38 C.F.R. § 3.303(b).  To show a chronic disease in service, a combination of manifestations sufficient to identify the disease entity is required, as is sufficient observation to establish chronicity at the time.  38 C.F.R. § 3.303(b).  However, 38 C.F.R. § 3.303(b), applies to only those chronic diseases listed in 38 C.F.R. § 3.309(a).  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); 38 U.S.C.A. § 1101.  With respect to the current appeal, this list includes psychoses.  See 38 C.F.R. § 3.309(a).  

Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

In addition, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including psychoses, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service.  38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307(a), 3.309(a).  However, in order for the presumption to apply, the evidence must indicate that the disability became manifest to a compensable (10 percent) degree within one year of separation from service.  See 38 C.F.R. § 3.307.

There are particular requirements for establishing entitlement to service connection for PTSD in 38 C.F.R. § 3.304(f) that are separate from those for establishing service connection generally.  Arzio v. Shinseki, 602 F.3d 1343, 1347 (Fed. Cir. 2010).  Those requirements are: (1) a diagnosis of PTSD in accordance with 38 C.F.R. § 4.125; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a causal nexus between current symptomatology and the specific claimed in-service stressor.  38 C.F.R. § 3.304(f).

The claimant bears the burden of presenting and supporting his/her claim for benefits.  38 U.S.C.A. § 5107(a).  See Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009).  In its evaluation, the Board shall consider all information and lay and medical evidence of record.  38 U.S.C.A. § 5107(b).  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board shall give the benefit of the doubt to the claimant.  Id.  

The Veteran's service treatment records reflect that he was shot in the right thigh in October 1973 while on leave.  On report of medical history in September 1974, the Veteran endorsed frequent trouble sleeping and nervous trouble.  In October 1974, the Veteran was apprehended by the battalion sergeant, and noted to be acting in a belligerent manner.  His eyes did not appear to respond to shining a flood light in them.  The Veteran was to be evaluated further, but there is no further indication of treatment or evaluation.

Following service, a November 1996 VA hospitalization report reflects that the Veteran was admitted for one month with a diagnosis of drug dependence.  He reported a history of drug use for 17 years.

An August 1998 VA general medical examination reflects that the Veteran complained of difficulty sleeping, violent temper, and bouts of depression.  He gave a history of cocaine abuse.  He was diagnosed with depressive disorder associated with polysubstance abuse.

On VA examination in January 2010, the Veteran reported that he had many difficulties in service, including going absent without leave, receiving article 15s, and a special court martial for fighting.  He noted a history of gang involvement prior to service.  While he was on leave in service, he got shot in the leg over a girl who was seeing a man in another street gang.  He claimed that when he was in boot camp, he was sent to the motivation platoon for attitude problems, during which he had to crawl through the field during machine gun fire, and had to stand at attention while being punched in the stomach.

The Veteran reported that he had be arrested for cocaine possession 10 times, the first occurring the in the 1970s, and he had been incarcerated several times.  

After mental status examination, the examiner indicated that the Veteran did not meet the diagnostic criteria for PTSD, since he did not meet the persistent avoidance criteria.  Rather, diagnoses of bipolar disorder not otherwise specified and cocaine abuse disorder were assigned.  

In an April 2017 evaluation report, private psychologist J.P. indicated that she reviewed the Veteran's claims file.  She noted that his in-service stressors included being shot while he was on leave, and being sent to the motivation platoon for attitude problems.  She noted that a medical report from October 1973 confirms that he suffered from a gunshot wound to his right thigh while on active duty. He was also apprehended in 1974 while acting in a belligerent manner.

She indicated that, based on records reviewed, the Veteran met the criteria for unspecified bipolar disorder, which was acquired during his time in service, and specifically triggered by the incidents in which he was shot in the leg, as well as physically assaulted by an officer.  Records indicated that his ability to function and maintain employment significantly declined after service.  

She further noted that bipolar disorder included periods of depression as well as elevated mood.  Mania could include poor decision making, irritability, impulsivity, erratic behavior, and hallucinations.  Records indicated that the Veteran was acting in a belligerent manner in 1974 shortly after the aforementioned incidents.  

Given the service records showing an onset of mental health symptoms in service, the records indicating the severity and chronicity of his psychological symptoms until the present, and the lack of any indication that the Veteran had a mental health disorder prior to joining service, she opined that it is at least as likely as not that the Veteran's service caused his current psychiatric diagnosis of bipolar disorder.

In this case, the VA examiner specifically determined that the Veteran did not meet the criteria for a diagnosis of PTSD. The private psychologist also diagnosed bipolar disorder, but not PTSD.  There is no indication otherwise of a diagnosis of PTSD.

The Board emphasizes that Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in disability.  See 38 U.S.C.A. § 1110. See also McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).  Accordingly, where, as here, competent evidence indicates that the Veteran does not have the disability for which service connection is sought, there can be no valid claim for service connection for the disability. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225   (1992). Thus, without persuasive evidence of current diagnosis of PTSD, there is no basis upon which to award service connection, and discussion of the remaining criteria of 38 C.F.R. § 3.304(f) is unnecessary.

With respect to psychiatric disorder other than PTSD, the Board finds that service connection is warranted.  First, post-service VA and private evaluations reflect diagnosis of bipolar disorder.  Thus, the first element of service connection has been met.  See Holton, supra.

With respect to an in-service incident and nexus, the Veteran's service treatment records reflect that he was treated for a gunshot wound and was apprehended due to belligerent behavior.  He also endorsed nervous trouble to discharge.  The post-service evaluations reflect that the Veteran relayed psychiatric symptoms while in service. The 2017 private opinion report that the Veteran's bipolar disorder had its onset in service, related to the incidents in service detailed above. There is no contrary opinion of record.  Thus, the second and third elements of service connection have been met.  See id.

In sum, the record reflects onset of psychiatric symptoms in service, post-service diagnoses of bipolar disorder, and an opinion placing the onset of this disorder in service.  For the foregoing reasons the Board finds that service connection is warranted for bipolar disorder.

II.  Increased Rating

The Veteran has argued that he is entitled to a disability rating in excess of 10 percent for his service-connected scar of the right leg.  Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule).  38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10.

If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned.  38 C.F.R. § 4.7.

In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991).  Where, as here, entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern.  Francisco v. Brown, 7 Vet. App. 55 (1994).  Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007).  Here, as explained below, a uniform evaluation is warranted.

The Veteran's service-connected scar of the right leg, status post gunshot wound is rated as 10 percent disabling pursuant to the criteria of 38 C.F.R. § 4.118, Diagnostic Code 7804.

The applicable rating criteria include Diagnostic Code 7801, which provides ratings for scars, other than the head, face, or neck, that are deep or that cause limited motion.  Scars in an area or areas exceeding 6 square inches (39 sq. cm.) are rated 10 percent disabling. Note (1) to Diagnostic Code 7801 provides that a deep scar is one associated with underlying soft tissue damage. 38 C.F.R. § 4.118, Diagnostic Code 7801.

Diagnostic Code 7802 provides ratings for scars, other than the head, face, or neck, that are superficial or that do not cause limited motion. Superficial scars that do not cause limited motion, in an area or areas of 144 square inches (929 sq. cm.) or greater, are rated 10 percent disabling. Note (1) to Diagnostic Code 7802 provides that a superficial scar is one not associated with underlying soft tissue damage. 38 C.F.R. § 4.118, Diagnostic Code 7802.

Diagnostic Code 7804 pertains to unstable or painful scars.  One or two scars that are unstable or painful warrant a 10 percent rating, while a 20 percent rating is warranted for three or four of such scars.  Five or more scars that are unstable or painful are 30 percent disabling.  Note (1) to Diagnostic Code 7804 provides that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. 38 C.F.R. § 4.118, Diagnostic Code 7804.

Diagnostic Code 7805 provides that any other scars (including linear scars) and other disabling effects of scars should be evaluated even if not considered in a rating provided under diagnostic codes 7800-04 under an appropriate diagnostic code. 38 C.F.R. § 4.118, Diagnostic Code 7805.

A January 2010 VA examination report reflects that the examiner noted a scar of the right lower extremity, posterior thigh, from gunshot wound.  

The scar measured 1 centimeter by 1 centimeter and was painful.  The scar had no signs of skin breakdown and was superficial.  There was no inflammation, edema, or keloid formation, and no other disabling effects.

The examiner diagnosed a right posterior thigh scar with residual intermittent pain.

On VA examination in June 2015, the examiner noted that the entrance and exit sites for the gunshot wound were well-healed.  However, the Veteran stated that he had mild tenderness at both sites.

There was no erythema, ecchymosis, or increased warmth at either site.  There was no lower extremity weakness, or loss of range of motion of the knee or hip.  There was no effect on ambulation.

The scars were not unstable, with frequent loss of covering of the skin over the scar. The scars each measured 1 centimeter by 1 centimeter. 

The examiner indicated that the Veteran did not have any other pertinent physical findings, complications, conditions, signs and/or symptoms (such as muscle or nerve damage) associated with any scar.

The examiner diagnosed scars, secondary to gunshot wound of the left distal thigh.  The examiner noted that the Veteran's scars were well-healed at the bullet entrance and exit sites in the right posterior distal thigh.  The residual clinical symptom was mild tenderness at both sites.  There were no neurological or functional changes.  Range of motion at the proximal and distal joints, i.e. the right hip and knee, was normal.

Here, the Board finds that a rating in excess of 10 percent is not warranted.

In so finding, the Board observes that the scars are not shown to affect an area or areas exceeding 6 square inches (39 sq. cm). Accordingly, a compensable rating under Diagnostic Code 7801 or 7802 is not warranted, regardless of whether the scars are deep or superficial.

Under Diagnostic Code 7804, a 10 percent rating is assigned for one or two painful scars, while a 20 percent rating is warranted for three or four of such scars.  In this case, while the Veteran's scars have been shown to be painful or tender on examination, there are only two scars.

In considering whether the Veteran would be entitled to evaluation based upon limitation of the body part affected under 38 C.F.R. § 4.118, Diagnostic Code 7805, the Board finds that such an evaluation is not warranted given that there is no other impairment associated with the scars.  The 2010 and 2015 VA examiners specifically indicated that there was no other impairment stemming from the scars, such as limitation of motion of an associated part or neurological impairment. 

For the foregoing reasons, the Board concludes that a rating in excess of 10 percent for the disability is not warranted.

The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record.  See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record)."

Accordingly, the Board finds that a rating in excess of 10 percent for scar of the right leg, status post gunshot wound, is not warranted.  In reaching this decision, the Board has considered the benefit-of-the-doubt doctrine.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990).  


ORDER

Service connection for bipolar disorder is granted.

Entitlement to a rating in excess of 10 percent for scar of the right leg, status post gunshot wound, is denied.


REMAND

Upon review of the claims file, the Board believes that additional development on the remaining claim is warranted.

The Court in Correia v. McDonald, 28 Vet. App. 158 (2016), held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing conditions, and, if possible, with range of motion measurements of the opposite undamaged joint.  Thus, the holding in Correia establishes additional requirements that must be met prior to finding that a VA examination is adequate.

The Board notes that the Veteran was afforded VA examinations pertaining to the left wrist in 2010 and 2015.  Review of these examination reports reveal that range of motion testing in passive motion, weight-bearing, and nonweight-bearing situations were not conducted.  In light of Correia, these VA examinations are incomplete, and the Veteran must be provided a new VA examination with respect to the left wrist, which provides range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing conditions.

Accordingly, the case is REMANDED for the following action:

1. Assist the Veteran in associating with the claims folder updated treatment records

2.  Schedule the Veteran for a VA examination(s) to ascertain the current severity and manifestations of the Veteran's service-connected left wrist disability 

The claims file should be made available to the examiner for review in connection with the examination. 

In particular, the examiner should be directed to perform range of motion testing to determine the extent of limitation of motion.  Additionally, the examiner must include range of motion testing in the following areas:

• Active motion;
• Passive motion;
• Weight-bearing; and
• Nonweight-bearing.

The examiner should indicate whether range of motion is additionally limited due to such factors as pain on motion, weakened movement, excess fatigability, diminished endurance, or incoordination.  In doing so, the examiner should offer an opinion as to whether pain could significantly limit functional ability during flare-ups or when the left wrist is used repeatedly over a period of time. Such determinations should, if feasible, be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups. 

The examiner should specifically indicate whether, and at what point during, the range of motion the Veteran experienced any limitation of motion that was specifically attributable to pain. 

The examiner must also conduct these studies for the right wrist as well.  If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so.

IF THE EXAMINATION DOES NOT TAKE PLACE DURING A FLARE, THE EXAMINER MUST GLEAN INFORMATION REGARDING THE FLARES' SEVERITY, FREQUENCY, DURATION, AND FUNCTIONAL LOSS MANIFESTATIONS FROM THE VETERAN, MEDICAL RECORDS, AND OTHER AVAILABLE SOURCES.  EFFORTS TO OBTAIN SUCH INFORMATION MUST BE DOCUMENTED.  If there is no pain and/or no limitation of function, such facts must be noted in the report.

The examiner should also comment on the impact of the Veteran's left wrist disability on his ability to work.  

The examiner must provide a complete rationale for all the findings and opinions.

3. After completing any additional notification or development deemed necessary, the Veteran's claim should be readjudicated.  If the claim remains denied, the Veteran should be furnished with a supplemental statement of the case and afforded a reasonable opportunity for response.

The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C. §§ 5109B, 7112 (2012).




______________________________________________
A. S. CARACCIOLO
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs

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