Citation Nr: 0004687 Decision Date: 02/23/00 Archive Date: 02/28/00 DOCKET NO. 98-09 992A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada THE ISSUES 1. Entitlement to a rating in excess of 30 percent for post- traumatic stress disorder (PTSD). 2. Entitlement to an increased (compensable) rating for residuals shell fragment wound, right knee. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD E. J. McCafferty, Counsel INTRODUCTION The veteran had active service from February 1968 to March 1971. In June 1999, the veteran attempted to reopen his previously denied claim for service connection for traumatic arthritis of the right ankle. A rating action in September 1999 found that new and material evidence had not been submitted in this regard and the veteran was so advised. A notice of disagreement was not received from the veteran and this issue has not been placed in appellate status at this time. The Board notes that where entitlement to compensation has already been established in a prior final rating action, an appellant's disagreement with a subsequent rating is a new claim for an "increased rating" based on the level of disability presently shown by the evidence. Suttman v. Brown, 5 Vet. App. 127, 136 (1993). However, a claim placed in appellate status by disagreement with the original or initial rating award but not yet ultimately resolved, as with the rating for the veteran's PTSD in this case, remains an "original claim" and is not a new claim for increase. Fenderson v. West, 12 Vet. App. 119 (1999). In such cases, separate compensable evaluations must be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the pendency of the appeal, a practice known as "staged" ratings. Id. at 126. Therefore, as shown on the title page, the Board does not characterize the issue of the proper rating for PTSD as an "increased rating." Finally, while this case was being developed for appellate review, the schedular criteria for evaluation of psychiatric disabilities were changed effective, November 7, 1996. Where a 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 an appellant applies unless Congress provided otherwise or permitted the Secretary to do otherwise and the Secretary does so. Marcoux v. Brown, 9 Vet. App. 289 (1996); Karnas v. Derwinski, 1 Vet. App. 308 (1991). In this case, the RO evaluated the veteran's PTSD under both the old and the new rating criteria, but found him not entitled to more than a 30 percent rating during the period at issue. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. The veteran's PTSD results in definite, but no more than definite, social and industrial impairment as contemplated by the applicable rating criteria in effect prior to November 7, 1996. 3. Under the applicable rating criteria effective November 7, 1996, the veteran's PTSD results in no more than occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. 4. No significant residuals of shell fragment wound of the right knee are shown by competent medical evidence. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 30 percent for PTSD are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. Part 4, Diagnostic Code 9411 (as in effective prior to and after November 7, 1996). 2. The criteria for an increased (compensable) rating for shell fragment wound of the right knee have not been met. U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. Part 4, Diagnostic Code 7805 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION In general, a veteran's claim of increasing severity of a service-connected disability establishes a well-grounded claim for an increased evaluation. Proscelle v. Derwinski, 2 Vet. App. 629 (1992). The veteran has asserted that the disabilities at issue are more disabling than contemplated by the current evaluations. Therefore, his claims for increased evaluations are well grounded, and VA has a statutory duty to assist mandated by 38 U.S.C.A. § 5107(a). Here, the veteran has been provided the opportunity to presents his case at a hearing on appeal and the medical records pertinent to his claims have been obtained and added to the record. Thus, the VA's duty to assist has been met in this case. Background. Service medical records are negative as to the presence of any chronic, acquired psychiatric disorder during service. Service records to include service medical records contain no reference to any combat-related shell fragment wound injury to the knee. In this regard, the veteran's service records do not show the veteran has been awarded a purple heart. Service medical records do contain a December 1969 reference to "stabbed knee", but no findings or treatment were reported at that time or subsequently. The veteran filed his claim for service connection for shrapnel wound of the leg in January 1972. On VA examination in February 1972, the veteran reported receiving a superficial shrapnel wound of the anterior surface of the right knee while in combat in 1969. He complained of pain beneath the right patella on long periods of immobilization. A well healed 2-inch scar on the anterior surface of the knee was noted. The scar was located between the tibial tubercle and the inferior border of the patella. The scar was said to be superficial, soft and pliable, nonadherent and causing no deformity. There was no subpatellar crepitation, synovial thickening or intra-articular fluid. There was full range of flexion and extension and the ligament structure was functioning properly. An x-ray study of the right knee revealed no bony changes or abnormalities. The examiner's diagnosis was superficial shrapnel wound, right knee. A rating action in April 1972, granted service connection for shrapnel wound, right knee, and assigned a noncompensable rating from the day following the veteran's discharge from service in March 1971. A report of private hospitalization for one week in April 1993 revealed a diagnosis of major depression, single episode. Global Assessment of Functioning (GAF) on admission was 35 and on discharge 75. In conjunction with a March 1993 claim for pension benefits, the veteran underwent a VA psychiatric examination in June 1993 with diagnosis of generalized anxiety with depression. A rating action in October 1993, granted pension benefits. It was noted that the veteran was 6 feet tall and weighed about 300 pounds, had a 9th grade education and was last employed in 1979. The principal disability considered in making the award was a heart condition evaluated as 60 percent disabling. In September 1995, the veteran filed a claim for service connection for PTSD. On VA examination for PTSD in December 1995, no diagnosis of PTSD was rendered. Pertinent diagnoses included dysthymia with psychotic features, substance dependent personality traits, and chronic use/withdrawal, psychotogenic drugs, mood elevating drugs. The veteran's GAF was reported as 65 In May 1996, the veteran, who was participating in a PTSD group, was evaluated by a VA clinical team with diagnoses of PTSD and alcohol abuse. In November 1996, the veteran filed a claim for increase with respect to his shell fragment wound of the right knee. The veteran was reexamined psychiatrically in January 1997 and essentially the same findings and diagnoses were reported as on the December 1995 examination. There was no diagnosis of PTSD and the veteran's GAF was reported as 60. In February 1997, statements from the veteran, his wife and stepdaughter supporting his claim for service connection for PTSD were received. A February 1997 letter from a treating VA physician was to the effect that the veteran had had increasing problems with his right knee of late and that while no diagnosis had been made, he supported the veteran's claim for increase. He reported his findings with respect to the veteran's knee symptomatology, but offered no etiology for these symptoms. A rating action in July 1997 denied an increased rating for the veteran's knee. VA medical records from 1996-97 were added to the record. A March 1997 letter from the assistant chief of the psychiatric service at a VA medical center showed the veteran was being treated by him for PTSD and a history of major depressive disorder. On VA psychiatric examination in September 1997, pertinent diagnoses were dysthymia, PTSD and polysubstance abuse in remission. GAF was reported as 75 to 80. A rating action in April 1998 awarded service connection for PTSD and assigned a 10 percent rating, effective from the date of claim in September 1995. VA outpatient treatment notes for 1998-99 show the veteran continued to attend PTSD sessions on a weekly basis and was being treated for his PTSD as well as for other disabilities not at issue. Periodic GAF's ranged from 25 to 55, but appeared to include the disabling effects of non-psychiatric disability. At a hearing on appeal in February 1999, the veteran reported receiving treatment from the VA for his PTSD. He also related his recent problems with his right knee to a service injury. VA psychiatric examination in March 1999 revealed numerous subjective complaints by the veteran, but little in the way of adverse objective findings on mental status examination. The examiner indicated moderate symptomatology, assigning a GAF of 51. Orthopedic examination in March 1999, provided a detailed history of the veteran's right knee condition as well as detailed current findings to include x-ray study. However, the examiner opined that the well-healed shrapnel wound was not causing any disorder of the right knee. A rating action in April 1999 assigned a 30 percent rating for the veteran's PTSD, effective from the date of claim in September 1995. Criteria. Disability evaluations are determined by the application of a schedular rating which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. 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. Prior to November 7, 1996, the VA Schedule for Rating Disabilities called for the following rating levels with respect to 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. 70% - Ability to establish and maintain effective or favorable relationships with people is severely impaired. The psychoneurotic symptoms are of such severity and persistence that there is severe impairment in the ability to obtain or retain employment. 50% - Ability to establish or maintain effective or favorable relationships with people is considerably impaired. By reason of psychoneurotic symptoms the reliability, flexibility and efficiency levels are so reduced as to result in considerable industrial impairment. 30% - Definite impairment in the ability to establish or maintain effective and wholesome relationships with people. The psychoneurotic symptoms result in such reduction in initiative, flexibility, efficiency, and reliability levels as to produce definite industrial impairment. 38 C.F.R. § 4.132, Diagnostic Code 9411 (1996). Words such as "mild", "considerable" and "severe" were not defined in the VA Schedule for Rating Disabilities. However, the regulations have stipulated that rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just". 38 C.F.R. 4.6 (1997). Additionally, in a precedent opinion dated November 9, 1993, the General Counsel of the VA concluded that "definite" is to be construed as "distinct, unambiguous, and moderately large in degree." It represents a degree of social and industrial inadaptability that is "more than moderate but less than rather large." VAOPGCPREC 9-93 (O.G.C. Prec. 9- 93); 57 Fed. Reg. 4753 (1994). The VA General Counsel further construed the term "considerable" to mean "rather large in extent or degree." See VAOPGCPREC 9-93 (O.G.C. Prec. 9-93); 57 Fed. Reg. 4753 (1994). The VA Schedule of Ratings for Mental Disorders was amended and redesignated effective November 7, 1996. Under the new regulation, the evaluation criteria have substantially changed, focusing on the individual symptoms as manifested throughout the record, rather than on medical opinions characterizing overall social and industrial impairment as mild, definite, considerable, severe, or total. The purpose of the 1996 change in the VA Schedule for Rating Disabilities was to update the portion of the rating schedule addressing mental disorders, ensure that it used current medical terminology and unambiguous criteria, and to reflect medical advances. 61 Fed. Reg. 52,695 (October 8, 1996). On and after November 7, 1996, the pertinent provisions read as follows: 100% - Total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions of 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. 70% - Occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near- continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence) spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. 50% - Occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long-term memory (e.g. retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing effective work and social relationships. 30% - Occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, Diagnostic Code 9411 (1999). Scars which are superficial and poorly nourished with repeated ulceration warrant a 10 percent evaluation. 38 C.F.R. § 4.118, Diagnostic Code 7803. Scars which are superficial and tender and painful on objective demonstration warrant a 10 percent evaluation. 38 C.F.R. § 4.118, Diagnostic Code 7804. Other scars shall be rated on the limitation of function of any part affected. 38 C.F.R. § 4.118, Diagnostic Code 7805. These codes do not provide for a zero percent evaluation, but a zero percent evaluation is assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. PTSD Analysis. Consistent with the decision of the Court in Karnas v. Derwinski, 1 Vet. App. 308 (1991), the Board will discuss the veteran's disability with consideration of the criteria effective both prior and subsequent to November 7, 1996. GAF is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." See American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (4th ed.) [hereinafter DSM-IV]. GAF scores of 61 to 70 reflect some mild symptoms (e.g. depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g. occasional truancy or theft within household) but generally functioning pretty well, has some meaningful interpersonal relationships. GAF scores of 61 to 70 reflect some mild symptoms (e.g. depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, has some meaningful interpersonal relationships. GAF scores of 51 to 60 indicate moderate symptoms (e.g. flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g. few friends, conflicts with peers or co- workers). GAF scores of 41 to 50 reflect serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a jog). GAF scores of 51 to 60 reflect moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co- workers). Under the "old" and the "new" criteria, the Board finds that the symptoms and the level of social and industrial impairment of the veteran's service-connected psychiatric disorder do not more nearly approximate the criteria for the next higher rating of 50 percent, i.e., considerable social and industrial impairment under the old criteria in effect prior to November 7, 1996, or occupational and social impairment, with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g. retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing effective work and social relationships under the new criteria effective November 7, 1996. The record in this case shows that the veteran's PTSD symptomatology has remained essentially the same from 1995 to the present. The record shows that the veteran's symptomatology as reflected on VA examinations in 1995, 1997 and 1999 is moderate in degree and supports no more than a 30 percent rating under the old and new criteria. The Board notes the GAF of 35 noted on hospital admission in April 1993 rose with treatment to a 70 on discharge a week later. Likewise, some GAF's recorded during the veteran's outpatient treatment in 1998-99 indicate more than moderate symptomatology, but these GAF scores are not consistent with the totality of the evidence of record. They appear to be represent acute exacerbations and are not indicative of the severity of the veteran's overall symptomatology. It also appears that they reflect not only impairment due to the veteran's psychiatric disorders, but also impairment due to his physical problems as well. The examiner's classification of the severity of the PTSD symptoms is not determinative of the degree of disability. Consideration must be given to the whole history of the disorder, including the outpatient treatment records and the veteran's account of his symptoms. The rating assigned must represent the impairment of social and industrial adaptability based on all of the evidence of record. There is nothing in the record to suggest that the veteran's PTSD symptoms have increased in severity between 1995 and 1999. In the Board's opinion, the PTSD symptoms which were identified as of 1995 are essentially the same as those shown on the more recent examinations and treatment record. There is no showing of any increased symptomatology for any part of the appeal period that would warrant staged ratings pursuant to Fenderson. When 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 in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b). The Board, for the reasons set forth above, concludes that the veteran's psychiatric history, symptoms, and manifestations are consistent with no more than the 30 percent rating currently assigned, and that the preponderance of the evidence is against the assignment of an evaluation in excess of 30 percent for any of the contested period. The evidence is not in relative equipoise, and the disability picture, as discussed above, does not approximate the criteria for a higher rating under the old or new criteria. Accordingly, the provisions of 38 U.S.C.A. § 5107(b) and 38 C.F.R. §§ 4.3, 4.7 are not for application. In reaching the conclusion that the veteran's PTSD does not warrant a rating in excess of 30 percent, the Board has noted that the veteran's work record shows that he last worked in 1979, long before any acquired psychiatric disorder was manifest. The award of pension benefits as of 1993 was based primarily on the veteran's heart condition without consideration of the psychiatric symptomatology first shown in 1994. Thus, while the veteran's long-term unemployment has been considered, the record clearly shows that it is not attributable to his service-connected psychiatric disability. Right Knee Analysis. The record shows that the veteran's service-connected right knee disability has been asymptomatic since service discharge. On initial VA examination in 1972, the only residual shown was a well-healed 2-inch superficial scar. There was no other knee symptomatology demonstrated clinically or by x-ray and a noncompensable rating was assigned. Subsequently, there was no indication of any right knee problems until the 1990's. The veteran attributed these recent knee problems to his service-connected disability. In support of his claim, he furnished a medical statement from a treating physician, but the statement did not identify the etiology of the veteran's recent knee complains or relate the knee problems to the veteran's service injury. However, the orthopedic examiner in March 1999 considered the veteran's history and his examination findings and concluded that the veteran's service-connected right knee disability was not causing any impairment of the knee. There is no competent medical evidence or opinion to relate the veteran's recent right knee problems to his long static and asymptomatic service-connected right knee disability. The record in 1972 and now shows that the only residual of the veteran's service injury is a well-healed scar of the right knee. It is clear that there is no basis for assigning a compensable rating under Codes 7803, 7804, 7805 and 38 C.F.R. § 4.31 and there is no demonstrated disability other than the scar that may be considered for rating purposes. The Board has considered the veteran's contentions that his current right knee problems are related to service, but there is no competent medical evidence to this effect. The veteran, as a layman, is not competent to provide a medical opinion as to etiology. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). ORDER A rating in excess of 30 percent for PTSD is denied. An increased (compensable) rating for shell fragment wound of the right knee is denied. Gary L. Gick Member, Board of Veterans' Appeals