Citation Nr: 0013767	
Decision Date: 05/24/00    Archive Date: 05/30/00

DOCKET NO.  90-25 131	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, 
Missouri


THE ISSUES

1.  Entitlement to an increased evaluation for PTSD, 
currently rated as 70 percent disabling.  

2.  Entitlement to service connection for polysubstance abuse 
as secondary to post-traumatic stress disorder (PTSD).  

3. Entitlement to an increased evaluation for residuals of a 
gunshot wound, posterior left shoulder, and posterior right 
thoracic region, currently rated as 10 percent disabling.  


REPRESENTATION

Appellant represented by:	Disabled American Veterans







WITNESSES AT HEARING ON APPEAL

Appellant, mother and father


ATTORNEY FOR THE BOARD

D. Odlum, Associate Counsel


INTRODUCTION

The veteran had active military service from August 1967 to 
May 1969.  

This matter is before the Board of Veterans' Appeals (Board) 
on appeal from rating decisions from the St. Louis, Missouri 
Department of Veterans Affairs (VA) Regional Office (RO).  

In February 1997 the Board denied entitlement to an effective 
date prior to October 29, 1986 for an award of service 
connection for PTSD.  It remanded the issues of service 
connection for substance abuse, an increased rating for PTSD, 
and an increased rating for residuals of a gunshot wound to 
the left shoulder and right posterior thoracic region for 
further development.  At the time of the decision, PTSD was 
evaluated as 10 percent disabling.  

In April 1999 the RO granted an increased rating of 70 
percent for PTSD, effective October 29, 1986.  Entitlement to 
a total disability evaluation for compensation purposes on 
the basis of individual unemployability (TDIU) was also 
granted effective October 29, 1986.  The case has since been 
returned to the Board for further appellate review.  




The issue of entitlement to an evaluation in excess of 10 
percent for residuals of a gunshot wound, posterior left 
shoulder, and posterior right thoracic region, is addressed 
in the remand portion of this decision.


FINDINGS OF FACT

1.  All relevant evidence necessary for an equitable 
disposition of this appeal has been obtained.  

2.  The probative evidence shows that the veteran is unable 
to obtain or retain employment due to his PTSD.  

3.  The probative evidence demonstrates that the veteran's 
substance abuse is causally related to or otherwise 
aggravated by the veteran's service-connected PTSD.  


CONCLUSIONS OF LAW

1.  The criteria for a 100 percent evaluation for PTSD have 
been met.  38 U.S.C.A. §§ 1155, 5107(b) (West 1991); 
38 C.F.R. §§  3.102, 4.3, 4.132, Diagnostic Code 9405 
(effective prior to November 7, 1996); 38 C.F.R. §§ 3.102, 
4.3, 4.130, Diagnostic Code 9434; 61 Fed. Reg. (577)473-1062 
(Oct. 8, 1996) (effective November 7, 1996).  

2.  Substance abuse is proximately due to or the result of 
service-connected PTSD.  38 U.S.C.A. § 5107 (West 1991); 
38 C.F.R. § 3.310(a) (1999).  






REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Increased Rating for PTSD

Factual Background

The pertinent evidence of record reveals that the veteran was 
admitted to Alexian Hospital in August 1995 with expressions 
of suicidal ideation, feelings of hopelessness, helplessness, 
worthlessness, futility, pervasive loss of interest, energy, 
and anhedonia.  Examination revealed many of these symptoms, 
and the assessment was major depression and chronic, delayed 
PTSD.  

On VA examination in October 1997, the veteran reported 
symptoms of PTSD.  His mood on examination was described as 
hopeless.  He appeared thin, tremulous, sweaty, distractible, 
and slovenly groomed.  Episodic suicidal ideation was 
reported.  He became obviously nervous when discussing 
Vietnam.  

The Board notes as an aside that the veteran was engaged in 
combat while in Vietnam, and service records indicate that he 
distinguished himself by rescuing three severely wounded 
members of his unit while under intense fire from the enemy, 
and even after he had been wounded in the upper arm by a 
sniper's bullet.  He was awarded the Bronze Star Medal with 
"V" device for his actions.  He is also a recipient of a 
Combat Infantryman's Badge and Purple Heart.

During the examination the veteran reported feelings of guilt 
and disappointment associated with his experience in Vietnam.  
Intrusive associations interfering with goal-directed 
activity were reported.  He became readily confused when 
trying to present his chronology.  





The diagnosis, based on examination of the veteran and review 
of the claims folder, was chronic, delayed onset PTSD, with 
full syndrome evidenced probably around 1986.  A Global 
Assessment of Functioning (GAF) score of 30 was assigned with 
near continuous disruption of concentration, judgment, mood 
stability, and sociability by the intrusive symptoms of PTSD 
and its numbing of connectedness with others and himself.  He 
was found to be not competent to manage his VA benefits.  

In January 1999 a VA PTSD examination was conducted.  The 
veteran's chief complaint regarded his inability to work due 
to his difficulty with being around people.  He reported 
thinking about death, seeing dead people, and seeing his best 
friend get his head blown off.  He reported that he was 
thinking about taking his own life.  He also reported having 
streaks of violence, when he would start throwing things and 
lashing barbara69@example.com.  He stated that he was still bothered 
by the events related to Vietnam.  

On examination, hygiene was adequate.  The veteran missed the 
date of the examination by one day.  Memory and attention 
were found to be impaired.  He was hyper-serious, and became 
sweaty and anxious as the interview continued.  His mood was 
judged to be hopeless, and he was found to be obviously ill 
at ease and nervous when talking about Vietnam.  He admitted 
to episodic suicidal thoughts.  Speech was forlorn and he 
appeared quite alienated.  

The veteran reported hearing voices at times, double vision, 
and misinterpreting barbara69@example.com.  He appeared easily 
confused, especially with chronology.  It was noted that he 
was HIV positive and was suffering from HIV/AIDS related 
problems.  Nonetheless, the veteran reported that he was not 
seeking care for such problems due to the necessity of being 
around people.  



The veteran admitted to drinking a 24-ounce can of beer per 
day, and that his drinking used to be heavier, particularly 
while in the service.  He reported a history of marijuana and 
IV heroin use.  He denied current use of marijuana, but 
admitted to heroin use, saying that it was the only thing 
that made him feel alright.  He stated that he would use 
heroin every now and then, and that his last use was two 
weeks prior.  

The pertinent diagnoses were chronic, delayed onset PTSD, 
episodic alcohol abuse, episodic heroin abuse, and 
polysubstance abuse by history.  He was found to be negative, 
hopeless, and pessimistic about the future.  It was concluded 
that the veteran did not appear to be employable, and that he 
was clearly functional before being drafted.  

A GAF of 35 was assigned with the veteran noted as having a 
major impairment in work and social areas; problems with 
judgment, thinking and mood; near continuous disruption of 
concentration; depression; suicidal thoughts; intrusive 
symptoms from PTSD; and problems with his ability to accept 
and sustain treatment for treatment of his PTSD, chemical 
dependency, and HIV.  It was further concluded that PTSD 
appeared to be most responsible for his current level of 
functioning.  A GAF of 40 was specifically assigned for PTSD.  

In April 1999 the RO granted a 70 percent rating for PTSD, 
effective October 29, 1986.  

Criteria

Disability evaluations are determined by the application of 
the VA Schedule for Rating Disabilities (Rating Schedule), 
38 C.F.R. Part 4.  The percentage ratings contained in the 
Rating Schedule represent, as far as can be practicably 
determined, the average impairment in earning capacity 
resulting from diseases and injuries incurred or aggravated 
during military service and their residual conditions in 
civil occupations.  38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. 
§ 4.1 (1999).  

Where 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.  
Although a rating specialist is directed to review the 
recorded history of a disability in order to make a more 
accurate evaluation, the regulations do not give past medical 
reports precedence over current findings.  See 38 C.F.R. 
§ 4.2 (1999); Francisco v. Brown, 7 Vet. App. 55 (1994).  

When an unlisted condition is encountered it will be 
permissible to rate under a closely related disease or injury 
in which not only the functions affected, but the anatomical 
localization and symptomatology are closely analogous.  
Conjectural analogies will be avoided, as will the use of 
analogous ratings for conditions of doubtful diagnosis, or 
for those not fully supported by clinical and laboratory 
findings.  Nor will ratings assigned to organic diseases and 
injuries be assigned by analogy to conditions of functional 
origin.  38 C.F.R. § 4.20.

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.  

The Board notes that effective November 7, 1996, during the 
pendency of this appeal, the VA Schedule, 38 C.F.R. Part 4, 
was amended with regard to rating mental disorders, including 
PTSD.  61 Fed. Reg. 52695 (Oct. 8, 1996) (codified at 
38 C.F.R. § 4.130).  

Where the law and regulations change while a case is pending, 
the version more favorable to the appellant applies, absent 
congressional intent to the contrary.  Karnas v. Derwinski, 
1 Vet. App. 308, 312-313 (1991).

Before November 7, 1996, the VA Schedule read, in pertinent 
part, as follows:

General Rating Formula for Psychoneurotic Disorders:

100%  The attitudes of all contacts 
except the most intimate are 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.  
Demonstrably unable to obtain or retain 
employment.

38 C.F.R. § 4.132, Diagnostic Code 9411 (1996).

The Rating Schedule also provided that social integration was 
one of the best demonstrations of mental health and reflects 
the ability to establish (together with the desire to 
establish) healthy and effective interpersonal relationships.  
38 C.F.R. § 4.129. In evaluating impairment resulting from 
ratable psychiatric disorders, social inadaptability is to be 
evaluated only as it affects industrial adaptability.  Id.  
The principle of social and industrial inadaptability as the 
basic criterion for rating disability from the mental 
disorders contemplates those abnormalities of conduct, 
judgment, and emotional reactions which affect economic 
adjustment, i.e., which produce impairment of earning 
capacity.  Id.

The severity of disability was based upon actual 
symptomatology, as it affects social and industrial 
adaptability.  38 C.F.R. § 4.130.  Two of the most important 
determinants are time lost from gainful work and decrease in 
work efficiency.  Id.  It is for this reason that great 
emphasis is placed upon the full report of the examiner, 
descriptive of actual symptomatology.  Id.  

The examiner's classification of the disease as "mild," 
"moderate," or "severe" is not determinative of the degree of 
disability, but the report and the analysis of the 
symptomatology and the full consideration of the whole 
history will be.  Id.



Effective November 7, 1996, the VA Schedule reads, in 
pertinent part, as follows: 

100%  Total occupational and social 
impairment, due to such symptoms as: 
gross impairment in thought processes or 
communication; persistent delusions or 
hallucinations; grossly inappropriate 
behavior; persistent danger of hurting 
self or others; intermittent inability to 
perform activities of daily living 
(including maintenance of minimal 
personal hygiene); disorientation to time 
or place; memory loss for names of close 
relatives, own occupation, or own name.

38 C.F.R. § 4.130, Diagnostic Codes 9411 and 9440 (1999).  

The Rating Schedule also provides that when evaluating the 
mental disorder, the frequency, severity, and duration of 
psychiatric symptoms, the length of remissions, and the 
veteran's capacity for adjustment during periods of remission 
shall be considered and the evaluation shall be based on all 
the evidence of record that bears on occupational and social 
impairment rather than solely on the examiner's assessment of 
the level of disability at the moment of the examination.  
The evaluation also must consider the extent of social 
impairment, but shall not be assigned solely on the basis of 
social impairment.  When a single disability has been 
diagnosed both as a physical condition and as a mental 
disorder, the rating agency shall evaluate it using a 
diagnostic code which represents the dominant (more 
disabling) aspect of the condition.  38 C.F.R. § 4.126.

When all the evidence is assembled, VA is responsible for 
determining 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 
a claim, in which case, the claim is denied.  Gilbert v. 
Derwinski, 1 Vet. App. 49 (1990).

When, after consideration of all of the evidence and material 
of record in an appropriate case before VA, there is an 
approximate balance of positive and negative evidence 
regarding the merits of an issue material to the 
determination of the matter, the benefit of the doubt 
doctrine in resolving each such issue shall be given to the 
appellant.  38 U.S.C.A. § 5107(b) (West 1991);  38 C.F.R. 
§§ 3.102, 4.3 (1999).  

Analysis

Initially, the Board notes that the veteran's claim is found 
to be well-grounded under 38 U.S.C.A. § 5107(a) (West 1991).  
That is, he has presented a claim which is plausible.  Murphy 
v. Derwinski, 1 Vet. App. 78 (1990).  In general, an 
allegation of increased disability is sufficient to establish 
a well-grounded claim seeking an increased rating.  Proscelle 
v. Derwinski, 2 Vet. App. 629 (1992).  

In accordance with 38 C.F.R. §§ 4.1 and 4.2 and Schafrath v. 
Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed the 
evidence of record pertaining to the history of the veteran's 
PTSD.  The Board has found nothing in the historical record 
that would lead to a conclusion that the evidence of record 
is not adequate for rating purposes.  Moreover, the Board is 
of the opinion that this case presents no evidentiary 
considerations that would warrant an exposition of the remote 
clinical histories.

In addition, a review of the record indicates that the 
development requested by the Board in its February 1997 
remand has been completed to the extent that it can be 
determined that entitlement to the maximum or 100 percent 
rating for PTSD is warranted.  See Stegall v. West, 11 Vet. 
App. 268 (1998). 

In light of the foregoing, the Board is satisfied that all 
relevant facts have been adequately developed to allow for an 
adequate evaluation of his PTSD; no further assistance to the 
veteran in developing the facts pertinent to his claim is 
required to comply with the duty to assist as mandated by 
38 U.S.C.A. § 5107(a).  

After a review of the record, the Board concludes that the 
evidence supports a 100 percent evaluation for PTSD.  The 
United States Court of Appeals for Veterans Claims (Court) 
has essentially held that, under 38 C.F.R. § 4.132 of the old 
regulation, the three criteria in Diagnostic Code 9411 for a 
100 percent rating for PTSD are each independent bases for 
granting the 100 percent rating.  See Johnson v. Brown, 
7 Vet. App. 95, 97 (1994).

The veteran has presented competent evidence demonstrating 
that his PTSD is of such severity that he has been unable to 
obtain or retain employment.  On VA examination in October 
1997 the veteran was diagnosed with PTSD and was assigned a 
GAF of 30.  

GAF is a scale reflecting the "psychological, social, and 
occupational functioning on a hypothetical continuum of 
mental health-illness."  Diagnostic and Statistical Manual of 
Mental Disorders 32 (4th ed. 1994).  

A GAF of 30 indicates that behavior is considerably 
influenced by delusions or hallucinations; a serious 
impairment in communication or judgment; or an inability to 
function in almost all areas, e.g., in pertinent part, does 
not work.  Ibid.  

It is noted that the veteran has a history of polysubstance 
abuse, and this was noted during the October 1997 VA 
examination.  However, the examiners appeared to attribute 
the GAF of 30 to his symptoms of PTSD, in their summary of 
why they were assigning a GAF of 30 which was indicated as 
being secondary to his PTSD.  

During the January 1999 examination the VA examiner assigned 
a GAF of 35 and specifically concluded that the veteran's 
PTSD was responsible for most of his impairment.  A GAF of 40 
for PTSD was specifically assigned.  A GAF of 31 to 40 
reflects some impairment in reality testing or communication, 
or major impairment in several areas such as work or school, 
family relations, judgment, thinking or mood (e.g. depressed, 
avoids friends, neglects family, and is unable to work).  
Ibid.  (emphasis added).  

In addition, the January 1999 examiner concluded that the 
veteran did not appear to be employable.  

As the veteran has been assigned GAF scores indicating an 
inability to work due to psychological symptoms, it has been 
concluded during the two most recent VA examinations that 
most of the symptoms which the GAF score was based on were 
due to his PTSD, and because he has been concluded as being 
unemployable, the Board concludes that the PTSD disability 
warrants the maximum 100 percent rating due to the veteran's 
inability to obtain or retain employment.  

The Board additionally notes that the RO's April 1999 grant 
of TDIU was premised on the veteran's inability to work due 
to his PTSD as was found during the January 1999 VA 
examination.  As was stated above, under 38 C.F.R. § 4.132 of 
the old regulation, the three criteria in Diagnostic Code 
9411 for a 100 percent rating for PTSD are each independent 
bases for granting the 100 percent rating.  One of these 
criteria is that the veteran is demonstrably unable to obtain 
or retain employment, which the veteran has satisfied.  See 
Johnson, supra.  

The Board notes that, as a 100 percent evaluation has been 
granted under the previous criteria effective prior to 
November 7, 1996, the Board need not explore the propriety of 
applying the amended criteria for rating psychiatric 
disorders effective November 7, 1996, as the issue is moot.  

In any event, there can be no retroactive application of the 
amended criteria prior to the effective date of such amended 
criteria.  See DeSousa v. Gober, 10 Vet. App. 461 (1997); 
McCay v. Brown, 9 Vet. App. 183, 187 (1996), aff'd, 106 F.3d 
1577 (Fed. Cir. 1997).  

Service Connection for Polysubstance Abuse as Secondary to 
PTSD

Factual Background

The pertinent evidence of record indicates that the veteran 
was admitted to a VA Medical Center (VAMC) in July 1986.  

It was noted that the veteran had a history of heavy drinking 
but not for the past month.  He denied the use of IV drugs 
for the past 10 to 15 years.  

During a March 1988 Social and Industrial Survey, the veteran 
reported consuming a half pint of whiskey every other day, 
but denied use of other drugs.  In July 1988 he was admitted 
to a VAMC for, in pertinent part, alcohol, cocaine, and 
nicotine dependency.  

During a February 1992 admission for a gunshot wound, it was 
noted that the veteran's history was significant for 
intravenous drug use, consisting of heroin.  

In May 1992 the veteran was examined by Dr. S.S.B.  A history 
of cocaine and heroin addiction were reported, as was 
consumption of alcohol.  It was also noted that he had PTSD.  
Dr. S.S.B. concluded, in pertinent part, that the veteran had 
PTSD and polysubstance abuse that was secondary or at least 
partially secondary to his PTSD.  

In August 1992, the Board, in pertinent part, expanded the 
issues on appeal to include entitlement to service connection 
for substance abuse as secondary to PTSD.  

During a December 1992 VA examination at the Jefferson 
Barracks VA Hospital, the veteran indicated that he started 
using alcohol and drugs while in the service.  It was found 
that his history of alcoholism and other chemical abuse 
dependency problems dated back to his entry into the Army and 
prior to his major traumatic experiences in Vietnam.  It was 
further found that his chemical abuse and dependency problems 
seemed to be related more to his low self-esteem and the need 
to be accepted by comrades and friends than to PTSD which 
only followed his initial abuse and dependency problems for 
chemical substances.  

During an April 1995 VA examination the veteran reported that 
he would drink heavily when depressed.  The diagnosis was 
major depression associated with PTSD and alcohol dependence 
by history.  


During a June 1995 VA examination for mental disorders it was 
reported that the veteran was having a continuing problem 
with alcoholism, especially to relieve depression.  The 
diagnosis was chronic PTSD, with later depression and alcohol 
dependence secondary to PTSD.  

During an October 1995 hearing, the veteran's mother and 
father testified that he did not smoke or drink prior to 
entering the service.  Transcript, pp. 13, 17.  The veteran 
also testified that he did not drink or smoke prior to 
entering the service.  Tr., p. 13.  He testified that he 
started drinking after being wounded and subsequently 
assigned to selling beer and soda.  Tr., pp. 12-13.  

The veteran's mother testified that he was a different person 
after he came back from Vietnam, and he indicated that, 
following discharge, he was into "heavy substance abuse" in 
order to alleviate the pain from the gunshot wound and the 
thoughts that he had in his mind.  Tr., p. 14.  

In October 1997 a VA examination was conducted.  Two 
psychologists reviewed the veteran's symptoms and history, 
and concluded that the veteran had PTSD with the full 
syndrome evident since 1986, "after extensive masking by 
polysubstance abuse and dependence."  It was indicated that 
his substance abuse were coping mechanisms after the start of 
fear, guilt, and the need for ongoing alertness within the 
Vietnam combat arena.  They concluded that his substance 
abuse was secondary to his PTSD and was tightly interwoven 
with its chronicity.  

In January 1998 the RO asked the two examiners to explain 
their conclusions regarding the substance abuse in light of 
evidence that he was using alcohol prior to entering service, 
and that he was diagnosed with substance abuse prior to being 
diagnosed with PTSD.  They were also asked to reconcile their 
conclusions with the findings made during the December 1992 
VA examination.  


In April 1998 an addendum to the October 1997 VA examination 
was provided that responded to the January 1998 memorandum 
from the RO.  It was first noted that one of the examiners 
from the October 1997 VA examination was no longer employed 
with VA.  Therefore, another examiner was asked to give his 
opinion on the case.  

Both examiners reasserted the conclusions made during the 
December 1992 VA examination.  With respect to pre-service 
substance abuse, one examiner concluded such evidence was not 
indicative of severe abuse such that his entry into service 
was prohibited.  

Both examiners found that the diagnosis of substance abuse 
prior to the diagnosis of PTSD did not lead to a conclusion 
that such substance abuse could not be secondary to PTSD.  To 
the contrary, they both found that such a chronological 
analysis was misleading or unreliable.  It was noted that 
PTSD was not widely used or acknowledged as a diagnosis when 
the veteran was diagnosed with substance abuse.  In addition, 
it was noted that in cases such as the veteran's with delayed 
onset PTSD, the symptoms of substance abuse may appear before 
the symptoms associated with PTSD.  

Both examiners addressed the December 1992 VA examination in 
which it was concluded that his substance abuse was secondary 
to low self-esteem and a need to be liked by others.  Both 
examiners essentially indicated that such symptoms were 
consistent with early or developing PTSD.  

One examiner concluded that it was at least as likely as not 
that the substance abuse was secondary to PTSD.  

Criteria

Pursuant to 38 U.S.C.A. § 5107(a), a person who submits a 
claim for benefits under a law administered by the Secretary 
shall have the burden of submitting evidence sufficient to 
justify a belief by a fair and impartial individual that the 
claim is well-grounded.  


The Court has held that a well-grounded claim is "a 
plausible claim, one which is meritorious on its own or 
capable of substantiation.  Such a claim need not be 
conclusive but only possible to satisfy the initial burden of 
§ [5107(a)]."  Murphy v. Derwinski, 1 Vet. App. 78, 81 
(1990).  

The Court has also held that although a claim need not be 
conclusive, the statute provides that it must be accompanied 
by evidence that justifies a "belief by a fair and impartial 
individual" that the claim is plausible.  Tirpak v. 
Derwinski, 2 Vet. App. 609, 610 (1992).  

The Court has held that "where the determinative issue 
involves medical causation or a medical diagnosis, competent 
medical evidence to the effect that the claim is 'plausible' 
or 'possible' is required."  Heuer v. Brown, 7 Vet. 
App. 379, 384 (1995); Grottveit v. Brown, 5 Vet. App. 91, 93 
(1993) (citing Murphy, at 81).  

The Court has held that a well-grounded claim requires 
competent evidence of current disability (a medical 
diagnosis), of incurrence or aggravation of a disease or 
injury in service (lay or medical evidence), and of a nexus 
between the in-service injury or disease and the current 
disability (medical evidence).  See Epps v. Brown, 126 F.3d. 
1464, 1468 (Fed. Cir. 1997); Caluza v. Brown, 7 Vet. 
App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996). 

In order to establish service connection for a claimed 
disability the facts must demonstrate that a disease or 
injury resulting in current disability was incurred in active 
military service or, if pre-existing active service, was 
aggravated therein.  38 U.S.C.A. § 1131 (West 1991); 
38 C.F.R. § 3.303 (1999).  

Service connection may be granted for any disease diagnosed 
after discharge, when all the evidence, including that 
pertinent to service, establishes that the disease was 
incurred in service.  38 C.F.R. § 3.303(d) (1999).  




Continuous service for 90 days or more during a period of 
war, and post-service development of a presumptive disease to 
a degree of 10 percent within one year from the date of 
termination of such service, establishes a presumption that 
the disease was incurred in service.  38 C.F.R. §§ 3.307, 
3.309 (1999).  

Where there is a 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) (1999).  

This rule does not mean that any manifestation in service 
will permit service connection.  To show chronic disease in 
service there is required a combination of manifestations 
sufficient to identify the disease entity, and sufficient 
observation to establish chronicity at the time, as 
distinguished from merely isolated findings or a diagnosis 
including the word "chronic."  

When the disease identity is established, there is no 
requirement of evidentiary showing of continuity.  When the 
fact of chronicity in service is not adequately supported, 
then a showing of continuity after discharge is required to 
support the claim.  38 C.F.R. § 3.303(b) (1999).  

Service connection may also be granted for disability, which 
is proximately due to, or the result of service-connected 
disease or injury.  38 C.F.R. § 3.310(a) (1999).  When there 
is aggravation of a nonservice-connected condition, which is 
proximately due to, or the result of service-connected 
disease or injury, the veteran will be compensated for the 
degree of disability over and above the degree of disability 
existing prior to the aggravation.  Allen v. Brown, 7 Vet. 
App. 439, 448 (1995).  


A well-grounded claim for secondary service connection 
requires evidence of a current disability as provided by a 
medical diagnosis, a service-connected disease or injury, and 
competent evidence providing a nexus between the two.  Wallin 
v. West, 11 Vet. App. 509, 512 (1998); see also Epps v. 
Gober, 126 F.3d 1464 (Fed. Cir. 1997); Reiber v. Brown, 7 
Vet. App. 513, 516 (1995).


Special Criteria for Substance Abuse Claims

As to claims for entitlement to service connection for 
alcohol or substance abuse, pertinent VA law, 38 U.S.C.A. 
§ 1110 (West 1991), provides 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 (1999).

VA General Counsel opinion has held that 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.  See VAOPGCPREC 2-98.  

In claims filed after October 31, 1990, service connection 
for alcohol or drug abuse  as secondary to a service 
connected disease or injury under 38 C.F.R. § 3.310 is not 
precluded with the exception of compensation.  Id.  

The Court has held that 38 U.S.C.A. § 1110 prohibits 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, 11 Vet. App. 280, 283 (1998).  

When all the evidence is assembled, VA is responsible for 
determining 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 
a claim, in which case, the claim is denied.  Gilbert v. 
Derwinski, 1 Vet. App. 49 (1990).

When, after consideration of all of the evidence and material 
of record in an appropriate case before VA, there is an 
approximate balance of positive and negative evidence 
regarding the merits of an issue material to the 
determination of the matter, the benefit of the doubt 
doctrine in resolving each such issue shall be given to the 
veteran.  38 U.S.C.A. § 5107(b) (West 1991);  38 C.F.R. 
§§ 3.102, 4.3 (1999).

Analysis

Initially, the Board finds that the veteran's claim for 
service connection for polysubstance abuse as secondary to 
PTSD is well-grounded.  38 U.S.C.A. § 5107(a) (West 1991).  
He has a current disability of polysubstance abuse and there 
are multiple opinions linking such abuse to his PTSD.  
Wallin, Epps, Reiber, supra.

After reviewing the record, the Board is satisfied that all 
relevant facts have been properly developed to the extent 
necessary to reach a favorable decision in this case.  The 
Board therefore finds that all indicated development has been 
completed, and VA has satisfied its duty to assist the 
veteran.  38 U.S.C.A. § 5107(a).  

After carefully reviewing the record, the Board concludes 
that there is an approximate balance of positive and negative 
evidence relating to the veteran's claim for service 
connection of polysubstance abuse as secondary to PTSD.  
Therefore, applying the benefit of the doubt rule, the Board 
concludes that his polysubstance abuse proximately resulted 
from or was aggravated by PTSD.  As the Board noted earlier, 
the veteran's claim is predicated on the basis of a secondary 
relationship between his service-connected PTSD disability 
and polysubstance abuse.  Gilbert, 1 Vet. App. at 56.  

The Board initially notes that the payment of compensation 
for service connection of alcohol or drug abuse secondary to 
a service-connected disease or injury is precluded.  It does 
not preclude secondary service connection for other VA 
benefits other than compensation.  See Barela, supra.; 
VAOGCPREC 2-98.  

However, these amendments apply only to claims filed after 
October 31, 1990.  VAOGCPREC 2-98.  In the case at hand, the 
Board notes that the record indicates that the claim was 
filed prior to October 31, 1990.  In August 1992, the Board 
expanded the issues on appeal to include, in pertinent part, 
entitlement to service connection for substance abuse as 
secondary to PTSD.  It appears that this claim was inferred 
from a VA Form 9 submitted in May 1990 in which the veteran 
contended that his polysubstance abuse resulted from his 
PTSD.  

While there is some evidence suggesting the presence of 
substance abuse prior to the veteran's experiences in 
Vietnam, or that his substance abuse was diagnosed before his 
PTSD, the Board is of the opinion that the bulk of the 
evidence has documented this condition in association with 
his mental state.  It has been concluded in the majority of 
examinations reports that his substance abuse is secondary to 
his PTSD.  

In April 1998 two psychologists reviewed the record and 
specifically addressed the above evidence, finding that his 
current level of abuse was secondary to PTSD.  It was noted 
that any pre-service alcohol use was not so severe as to 
preclude entry into service.  It was also essentially stated 
that a finding of substance abuse prior to PTSD did not 
necessarily mean that the substance abuse actually began 
before the onset of the PTSD.  They noted that, in cases of 
delayed onset PTSD, problems with substance abuse could 
appear prior to the appearance of symptoms of PTSD.  It was 
also previously found that the symptoms of substance abuse 
were masking the PTSD symptoms.  

The one opinion clearly against the veteran's claim is the 
December 1992 VA examination report in which it was concluded 
that the veteran's substance abuse was more likely related to 
low self-esteem and the need to be accepted than to PTSD.  

The April 1998 examiners addressed the finding made on VA 
examination in December 1992 by noting that such feelings as 
described in the December 1992 examination report were 
consistent with PTSD.  

The Board concludes that the opinions linking the substance 
abuse to PTSD have more probative value in that they are 
consistent with the record and the testimony of the veteran 
and his parents.  In addition, the two April 1998 VA 
examiners explained their conclusions and reconciled them 
with inconsistencies in the record.  See Owens v. Brown, 
7 Vet. App. 429, 433 (1995) (holding that it is not error for 
the Board to favor opinion of one competent medical expert 
over that of another when the Board gives adequate statement 
of reasons and bases).

Based upon a full review of the record, the Board finds that 
there is an approximate balance of the positive and negative 
evidence, and that the veteran is entitled to the benefit of 
the doubt.  Alemany v. Brown, 9 Vet. App. 518, 520 (1996) 
(citing Gilbert, supra, at 53).  Accordingly, the Board 
concludes that polysubstance abuse is proximately due to or 
the result of the veteran's service-connected PTSD.  


ORDER

Entitlement to a 100 percent rating for PTSD is granted, 
subject to the governing criteria applicable to the payment 
of monetary benefits.  

Entitlement to service connection for polysubstance abuse as 
secondary to PTSD is granted.  


REMAND

This claim must be afforded expeditious treatment by the RO.  
The law requires that all claims that are remanded by the 
Board or by the Court for additional development or other 
appropriate action must be handled in an expeditious manner.  
See The Veterans' Benefits Improvements Act of 1994, Pub. L. 
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. 
§ 5101 (West Supp. 1999) (Historical and Statutory Notes).  



In addition, VBA's Adjudication Procedure Manual, M21-1, Part 
IV, directs the ROs to provide expeditious handling of all 
cases that have been remanded by the Board and the Court.  
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.

The Board finds that the veteran's claim of entitlement to an 
evaluation in excess of 10 percent for residuals of a gunshot 
wound, posterior left shoulder, and posterior right thoracic 
region, is well grounded within the meaning of 38 U.S.C.A. 
§ 5107(a); that is, a plausible claim has been presented.  
Murphy v. Derwinski, 1 Vet. App. 78 (1990).

In general, an allegation of increased disability is 
sufficient to establish a well grounded claim seeking an 
increased rating.  Proscelle v. Derwinski, 2 Vet. App. 629 
(1992).  The veteran's assertions concerning the severity of 
his service-connected gunshot wound (that are within the 
competence of a lay party to report) are sufficient to 
conclude that his claim for an increased evaluation for that 
disability are well grounded.  King v. Brown, 5 Vet. App. 19 
(1993).

The Board, however, is not satisfied that as a result of the 
most recent remand of the case to the RO for further develop 
in February 1997, all relevant facts have been properly 
developed to their full extent and that VA has met its duty 
to assist.  Godwin v. Derwinski, 1 Vet. App. 419 (1991); 
White v. Derwinski, 1 Vet. App. 519 (1991).

As was stated previously, the Board remanded, in pertinent 
part, the issue of entitlement to an increased evaluation for 
residuals of a gunshot wound to the posterior left shoulder 
and posterior right thoracic region for further development.  

In particular, the Board remanded for a VA examination based 
on possible inconsistencies in the record and the presence of 
other wounds that may have been erroneously attributed to the 
original gunshot wound.  




In particular, the record shows that the veteran was wounded 
in the left shoulder on April 18, 1968.  His service medical 
records, in regard to the gunshot wound to the left shoulder, 
only reveal clinic treatment from April 19, 1968 through 
April 27, 1968.  The entries for the April 1968 treatment 
note that the wound was cleaned and redressed and it was 
noted that the wound was healing well.  The veteran was to be 
given light duty and no use of the left arm for 2 days.

Following his May 1969 separation, a special orthopedic 
examination was conducted.  This examination report recorded 
that the bullet struck in a glancing blow from the side, 
striking 3 inches below the acromion process on his left side 
posterior slightly medial to the axillary line.  It left a 
scar, atrophic, 1 and 7/8ths inches long and 7/8ths of an 
inch wide.  The diagnosis was superficial soft tissue injury 
to the left shoulder posteriorly, well healed without 
significant impairment of use.  

VA examination in March 1988 noted that the veteran reported 
being shot with the point of entrance at the top of the left 
shoulder and the exit wound in the lower right thoracic area.  
He reported that the laceration was repaired at a field 
hospital, and that he was hospitalized 2 to 3 weeks following 
the gunshot wound to the left shoulder.  

The entrance wound was described as being 2 centimeters in 
diameter in the left supraspinatus region, medial aspect of 
the left shoulder, posterior.  The point of exit was a 2 
centimeter in diameter scar in the right thoracic back, 26 
centimeters inferior to the shoulder and 8 centimeters 
lateral to the mid thoracic back.  The diagnosis was history 
of gunshot wound, through and through, point of entrance top 
of his left shoulder and point of exit thoracic, right 
posterior region.

The March 1995 VA examination report shows the gunshot 
entrance wound scar was described as at the level of T1 or 
T2, one inch from the spine, 3/4's of an inch by 3/4's of an 
inch in diameter and a little adherent to the underside.  



The exit wound was described as just below the spine of the 
scapula bone on the right side, at the level of the 7th 
intercostal space, measuring about 1/2 inch by 3/8's of an 
inch.  The examiner noted that the veteran also reported 
involvement in a motor vehicle accident with a scar on the 
lateral border of the left scapula just below the shoulder 
joint, measuring about 1 1/4 inches by 3/4th of an inch, 
adherent to the underlying tissue.  Reference was also made 
to the gunshot wound sustained in February 1992, and a 
description of that wound was recorded.

In the February 1997 remand the Board noted that "[i]n 
comparing the original VA examination in 1969 with the 1988 
and 1995 examinations, it appears that the original 
description of the gunshot wound scar in 1969 more nearly 
matches in size, shape and location, the scar described in 
1995 as being the result of an automobile accident.  

The Board also notes the veteran's reference to a lengthy 
hospitalization associated with the gunshot wound, not 
corroborated in the service medical records.  In order to 
properly evaluate the residuals of the gunshot wound, the 
Board feels that additional development is required."  

The Board remanded, in pertinent part, for a VA examination 
requesting that the examiner identify all muscle groups 
affected by the gunshot wound and to supply a rationale for 
attributing a particular scar or scars to the 1968 gunshot 
wound.  

Pursuant to this request, a VA examination was conducted in 
September 1997.  The Board is of the opinion that this 
examination report is inadequate for rating purposes.  The 
examiner did not indicate that he had reviewed the claims 
folder as instructed in the remand, in particular, the 
service medical records, the December 1969 examination 
report, March 1995 examination report, and subsequent medical 
records.  The examiner did not clearly distinguish which 
scars were attributable to the in-service gunshot wound 
versus other causes, such as an automobile accident or later 
gunshot wound.  



The fact that the September 1997 VA examination was 
apparently conducted without access to the appellant's claims 
file renders the subject examination inadequate for rating 
purposes.  See e.g., 38 C.F.R. § 4.1 (1999) ("It 
is...essential both in the examination and in the evaluation 
of the disability, that each disability be viewed in relation 
to its history.") See also Green v. Derwinski, 1 Vet. 
App. 121, 124 (1991), "[F]ulfillment of the statutory duty to 
assist...includes the conduct of a thorough and 
contemporaneous medical examination, one which takes into 
account the records of prior medical treatment, so that the 
evaluation of the claimed disability will be a fully informed 
one." (emphasis added)).  Where the evidence does not 
adequately evaluate the current state of the condition, VA 
must provide a new examination.  Olsen v. Principi, 3 Vet. 
App. 480, 482 (1992) (citing Proscelle v. Derwinski, 2 Vet. 
App. 629, 632 (1992)).

For these reasons, the Board concludes that the September 
1997 VA examination did not adequately address the issues 
specified in the remand instructions, as listed above, and is 
generally inadequate for rating purposes.  38 C.F.R. § 4.2.  

The RO is advised that the Board is obligated by law to 
ensure that the RO complies with its directives, as well as 
those of the Court.  The Court has stated that compliance by 
the Board or the RO is neither optional nor discretionary.  

Where the remand orders of the Board are not complied with, 
the Board errs as a matter of law when it fails to ensure 
compliance, and a further remand of the case will be 
mandated.  See Stegall v. West, 11 Vet. App. 268 (1998).  

Accordingly, the issue on appeal must be remanded again in 
order to ensure that the Board's remand directives are 
complied with.  

Accordingly, this case is remanded to the RO for the 
following:


1.  The RO should request the veteran to 
identify the names, addresses, and 
approximate dates of treatment for all 
health care providers, VA and non-VA, 
inpatient and outpatient, who may possess 
additional records pertinent to his 
claims.  Kutscherousky v. West, 12 Vet. 
App. 369 (1999).  

After securing any necessary 
authorization or medical releases, the RO 
should attempt to obtain legible copies 
of the veteran's complete treatment 
records from all sources identified whose 
records have not previously been secured.  

Regardless of the veteran's response, the 
RO should secure all outstanding VA 
treatment reports.  All information which 
is not duplicative of evidence already 
received should be associated with the 
claims file.  

2.  The RO should schedule the veteran 
for a VA orthopedic examination by an 
orthopedic surgeon or other appropriate 
specialist for the purpose of 
ascertaining the current nature and 
extent of severity of his gunshot wound 
sustained in 1968.  

The claims file and a separate copy of 
this remand should be made available to 
and reviewed by the examiner prior and 
pursuant to conduction and completion of 
the examination and the examination 
report should be annotated in this 
regard.  Any further indicated special 
studies should be conducted.  

Specifically, it is requested that the 
examiner review the claims file and 
render a decision as to the following 
questions:


? Identify the muscle groups, if any, 
involved with respect to the wound 
involving the gunshot wound sustained 
in combat in 1968.  

? Describe the level of impairment, if 
any, of the muscle groups affected by 
the veteran's 1968 gunshot wound in 
terms of loss of power, weakness, 
lowered threshold of fatigue, fatigue-
pain, and impairment of coordination 
and uncertainty of movement.

The examiner should describe the scarring 
from the wound(s) specifically in terms 
of the 1968 gunshot wound.  

The examiner must specify which scars are 
attributable to the 1968 gunshot wound 
and which are not.  In making this 
determination, the examiner is directed 
to carefully review the claims folder, in 
particular, the service medical records 
and the September 1969 VA examination, 
and should certify this in the report.  

The examiner should compare the findings 
from the 1969 VA examination with 
subsequent medical findings documenting 
the various scarring on the veteran, 
including the March 1988 and March 1995 
examinations, and make a determination 
which scars specifically resulted from 
the 1968 gunshot wound.  The examiner 
should also explain the apparent 
inconsistency between the 1968 and 1988 
examination reports.  





The examiner should estimate the degree, 
if any, of muscle loss resulting from the 
1968 gunshot wound, and should compare 
the strength and endurance of the 
pertinent muscles with corresponding 
muscles of the sound side, if possible.  

The examiner should also determine active 
and passive range of motion in degrees, 
and comment on any other functional 
limitations, if any, caused by the 
veteran's service-connected disability.  
The examiner should also address whether 
and to what extent the service connected 
gunshot wound involves the joints and/or 
nerves as well.  Any opinion(s) expressed 
as to the severity of the veteran's 
gunshot wound should be accompanied by a 
complete rationale.  

3.  Thereafter, the RO should review the 
claims file to ensure that all of the 
foregoing requested development has been 
completed.  In particular, the RO should 
review the requested examination report 
and required medical opinion(s) to ensure 
that they are responsive to and in 
complete compliance with the directives 
of this remand, and if they are not, the 
RO should implement corrective 
procedures.  Stegall v. West, 11 Vet. 
App. 268 (1998).  

4.  After undertaking any development 
deemed essential in addition to that 
specified above, the RO should 
readjudicate the issue of entitlement to 
an evaluation in excess of 10 percent for 
residuals of a gunshot wound, posterior 
left shoulder, and posterior right 
thoracic region.  

In this regard, the RO should document 
its consideration of the applicability of 
the criteria of 38 C.F.R. §§ 3.321(b)(1), 
4.40, 4.45, and 4.59 (1999), as 
warranted.  

If the benefit requested on appeal is not granted to the 
appellant's satisfaction, the RO should issue a supplemental 
statement of the case containing all applicable criteria 
pertinent to the appellant's claim.  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 appellant until he is notified by the RO.  



		
	RONALD R. BOSCH
	Member, Board of Veterans' Appeals


 




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