BVA9500056 DOCKET NO. 93-08 230 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to an evaluation in excess of 20 percent for postoperative residuals of degenerative disc disease, lumbar spine. 2. Entitlement to an evaluation in excess of 10 percent for generalized anxiety disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD G. Wm. Thompson, Counsel INTRODUCTION The veteran had active service from April 1970 to August 1978. This appeal arises from a July 1991 Department of Veterans Affairs (VA) San Diego, California, Regional Office (RO) rating action that confirmed and continued the assigned ratings for the veteran's service-connected back and psychiatric disabilities. The Board of Veterans' Appeals (Board) notes that in the course of this appeal the veteran moved back to Colorado, and the current RO is Denver, Colorado. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends, in essence, that the RO erred in not finding that the evidence of record supports increased ratings for his service connected disabilities. He avers that the medical evidence shows an increase in the level of back disability, and that he is receiving treatment and medication for his psychiatric problems. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is in favor of an increased rating for degenerative disc disease of the lumbar spine and is against an increased rating for generalized anxiety disorder. FINDINGS OF FACT 1. The service-connected post operative degenerative disc disease of the lumbar spine is principally manifested by a tender and painful scar, objective evidence of pain and discomfort, slight flattening of the lumbar lordosis, absent left ankle jerk, muscle spasm, with intermittent relief, resulting in no more than severe disability. 2. The veteran's current psychiatric symptoms include depression associated with an adjustment disorder with mixed emotional features; somatic complaints; psychological factor affecting physical condition; alcohol abuse; and unstable interpersonal relationships, impulsiveness, affective instability, inappropriate intense anger or lack of control of anger, chronic feelings of emptiness, and suicidal threats, associated with borderline personality disorder and the symptoms result in such reduction in initiative, flexibility, efficiency and reliability levels as to produce no more than mild social and industrial impairment, 3. The service-connected back disability and anxiety disorder are not shown to present an unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization. CONCLUSIONS OF LAW 1. The criteria for a rating of 40 percent for post operative degenerative disc disease of the lumbar spine have been met. 38 U.S.C.A. §§ 1155, 5107(a) (West 1991); 38 C.F.R. § 4.71, Diagnostic Code 5293 (1993). 2. The criteria for a rating in excess of 10 percent for generalized anxiety disorder have not been met. 38 U.S.C.A. §§ 1155, 5107(a) (West 1991); 38 C.F.R. § 4.132, Diagnostic Code 9400 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. 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, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet.App. 55 (1994). Back Disability Pronounced intervertebral disc syndrome, with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to site of diseased disc, little intermittent relief warrants a 60 percent rating. Severe disc syndrome, manifested by recurring attacks, with intermittent relief warrants a 40 percent evaluation. moderate disc syndrome, manifested by recurring attacks warrants a 20 percent rating. 38 C.F.R. § 4.71, Diagnostic Code 5293 (1993). Service medical records reflect treatment for back pain beginning in 1971. Low back syndrome was diagnosed. On the basis of the service medical records, the RO, in January 1979, awarded service connection and assigned a noncompensable (zero percent) rating for low back syndrome, under the VA's Schedule for Rating Disabilities, 38 C.F.R. § 4.71a, Diagnostic Code 5293. Following a VA medical examination in January 1980 that showed muscle spasm, positive sciatic notch tenderness, and absent left ankle jerk, the RO, in April 1980, awarded a 10 percent rating for the back disorder. A computed tomography (CT) scan in August 1983 showed prominent extruded disc at the L5-S1 disc space. The veteran received a Chymopapin injection in September 1983. A November 1983 rating action assigned a 20 percent evaluation for degenerative disc disease of the lumbar spine, L5-S1 under 38 C.F.R. § 4.71a, Diagnostic Code 5293. With the exception of a temporary total rating following surgery in 1985, he has been in receipt of a 20 percent rating since 1983. While at work in October 1985, the veteran experienced a sharp pain in his back while shifting his weight on a ladder. Following an evaluation in October 1985, the veteran underwent a lumbar laminectomy and diskectomy. L5-S1, left, with foraminotomy of S1 root. A decompressive lumbar laminotomy and wide foraminotomy of the left S1 root was performed in June 1986. Temporary total ratings, following the surgeries, were assigned in 1985 and 1986. The Board notes that the veteran was still on Workmen's compensation in July 1986, and was undergoing vocational rehabilitation in November 1986. VA outpatient treatment records reflect that the veteran received treatment for his low back pain in 1989. He was seen again for complaints of low back pain radiating down the left leg in March 1990 and February 1991. The diagnosis in February was chronic back pain, examination non focal. When examined by the VA in June 1991, history provided by the veteran was to the effect he had a lifting injury at work in 1989, and an MRI in May 1989 showed a recurrent disc at L4-L5. Exacerbation of the back pain, after a lifting injury in November 1990 was also reported. On examination the veteran walked well, with a slight limp favoring the left lower extremity. He had no trouble walking on toes and heels, and exhibited only slight trouble undressing and changing position. A surgical scar was well healed but quite tender and painful. Forward flexion was to 70 degrees, extension to 10 degrees, lateral flexion to 20 degrees bilaterally, and rotation to 40 degrees. Pain at the lumbosacral junction on motion was reported. The left Achilles reflex was barely present and the examiner declared it to be absent. Straight leg raising was positive on the left and there was decreased sensation on the left. No atrophy was shown. The diagnosis was low back pain with nerve root compression, multiple operations. The veteran underwent private medical assessments in 1991, associated with reported occupational injuries. These evaluations were performed by Stephen H. James, M.D., an orthopaedic surgeon. In February and March 1991 he reported that the veteran had a bulging disc, L4-L5 due to on the job injury. It was noted in May 1991 that the veteran had a 3 year period of relatively no pain prior to the injuries in 1989. An examination in May did not show any gait impairment. The surgical scar was reported to be non-tender. On palpation, there was tenderness from L3-S1 and over the left posterior superior iliac spine, as well as the upper portion of the left buttock. With alternate standing, there was 2+ bilateral paravertebral spasm range. Limitation of motion of the lumbar spine, with pain on motion was noted. No sciatic tenderness was found. Left ankle jerk was absent. Straight leg raising was negative bilaterally. Decreased sensation involving the left lower extremity was noted. The impressions were: Chronic lumbosacral strain aggravated by lifting episodes in 1989 and 1990; and, residual neuropathy, sensory and motor, left lower extremity, L-5 distribution, secondary to herniated nucleus pulposus requiring surgery twice in 1986. History as provided on VA examination in September 1992, was to the effect the veteran was injured on the job in December 1990, and received workmen's compensation through October 1991. Subjectively, he described numbness in the L5-S1 distribution, with constant left leg radiation. Physical examination showed a well-healed 10 cm. nontender scar. There was a flattened lordosis with no scoliosis and no para lumbar spasm was noted. There was no gait impairment, range of motion was normal with forward flexion to 95 degrees, extension to 35 degrees, lateral bending to 40 degrees and rotation was 35 degrees. Heel and toe walking was intact. Left ankle jerk was decreased, as was sensation in the left calf. There was good ankle, hip and knee motion. While the veteran complains that the examination in 1992 was less than satisfactory, the Board finds that it was adequate for the purpose intended. The record shows that the veteran had good results following the surgeries in 1986, until the occupational injuries in 1989 and 1990, which apparently resulted in an exacerbation of the low back pathology. While the right ankle jerk has always been present, the left ankle jerk has been so weak as to have been declared essentially absent by two examiners. All examiners have noted sensory deficits in the left lower extremity. Past reports have also noted paravertebral muscle spasm. Muscle tone and strength is good. Overall, the objective manifestations associated with the service-connected post operative disc disease are productive of severe disability. Clearly, there are symptoms of sciatic neuropathy, as well as muscle spasm, and absent ankle jerk. However, while the attacks are recurring, he is afforded intermittent relief. To qualify for a 60 percent rating, pronounced symptomatology must be demonstrated; that is, the symptoms must afford him little intermittent relief, and that has not been demonstrated. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.71, Diagnostic Code 5293. Anxiety Disorder The psychiatric nomenclature employed is based upon the Diagnostic and Statistical Manual of Mental Disorders, Third Edition (DSM-III), American Psychiatric Association. This nomenclature has been adopted by the Veteran Health Service and Research Administration of the Department of Veterans Affairs. It limits itself to the classification of disturbance of mental functioning. 38 C.F.R. Part 4, § 4.125. Where there is definite impairment in the ability to establish or maintain effective and wholesome relationships with people, and the psychoneurotic symptoms result in such reduction in initiative, flexibility, efficiency and reliability levels as to produce definite industrial impairment, a 30 percent evaluation is in order. Where there is less that the criteria for the 30 percent, with emotional tension or other evidence of anxiety productive of mild social and industrial impairment, a 10 percent rating is assigned. 38 C.F.R. § 4.132, Diagnostic Code 9400. Service medical records show one treated episode of anxiety in 1974. Based on the service medical records, the RO, in January 1979, awarded the veteran service connection for anxiety reaction, and a 10 percent rating was assigned pursuant to 38 C.F.R. § 4.132, Diagnostic Code 9400. He has been in receipt of a 10 percent rating since that time. When examined by the VA in August 1979, psychiatric examination resulted in a diagnosis of anxiety reaction. In February 1983 the veteran was seen at a VA mental health clinic for complaints of anxiety, depression and irritability related to an extended period of unemployment and concomitant role reversal with his wife. Marital discord was also reported. The VA diagnoses, following examination in August 1983, were anxiety disorder by history, continuous alcoholism, continuous marijuana addiction, and passive-dependent personality. The veteran again reported marital discord in 1986. At that time he was out of work but he was receiving workmen's compensation benefits for another disorder. Richard B. Levin, M.D., reported in a February 1991 medical report that the veteran had a pending psychiatric evaluation for his job-related stress and depression. In a discussion of the veteran's problems it was noted that he had significant agitated depression, secondary to work-related stress, and secondary to chronic pain of an L4-L5 radiculopathy incurred while employed. During a June 1991 VA psychiatric examination, the veteran was oriented times three, displayed poor concentration, but had coherent and goal-oriented thoughts. He was able to maintain empathy with the ordinary social criteria of reality. Judgment was poor and insight fair. The diagnosis was adjustment disorder with mixed disturbance of emotions and conduct; alcohol abuse; polysubstance abuse; and personality disorder, not otherwise specified. During a July 1991 psychological re-evaluation, Mark W. Marvin, Ph.D. related that the veteran had been previously deemed temporarily/totally disabled and referred for individual psychotherapy, and had returned for assessment of any change in his emotional condition following VA psychotherapy. On mental status examination the veteran was depressed, angry and anxious. The examiner reported symptoms of depression and anxiety involving low self-esteem, helplessness and hopelessness, suicidal thoughts (without intent), discouragement and apprehension, concentration and memory deficits, difficulty making decisions, ruminations, irritability, social withdrawal, sleep disturbance, fatigue, loss of motivation, diminished appetite, decreased interest in sexual relations and increased alcohol abuse. He was increasingly agitated and depressed as he discussed the work-related and other difficulties. He exhibited mild pressure of speech, fidgetiness and anxiety. The Axis I diagnoses was adjustment disorder with mixed emotional features, anxiety and depression (in partial remission); psychological factors affecting physical condition; alcohol abuse; and polysubstance dependence, in full remission. The Axis II diagnosis was personality disorder, not otherwise specified, borderline and narcissistic features. It was opined that the veteran's present psychological disability resulted from a combination of industrial and non-industrial stressors. The work related (industrial) stressors were problems with his employer and the work-related back injury, and the non-industrial factors included family problems associated with his ex-wife, financial stress and ongoing problematic symptoms associated with his history of back injuries and surgeries. It was noted that the veteran's history of a 10 percent mental health disability appeared to have been a depressive episode nine years prior to the veteran's current employment and had little impact on his condition at the present time. The examiner apportioned 50 percent of his psychological disability to industrial stressors and 50 percent to the non-industrial factors. When examined by the VA in September 1992, the examiner reviewed the veteran's medical records, and an extensive history was given. The examiner noted that it was difficult to get a history of the anxiety that was mentioned repeatedly in the claims folder. There did not seem to be either panic episodes or chronic anxiety. Similarly, what the veteran described as depression seemed to be a narcissistic blow of some kind that left him feeling discouraged and somewhat lost. It was the examiners impression from the record that the veteran did not have clinical depression for which one would tend to use antidepressant medications The examination lasted 75 minutes. During the mental status examination, he was not depresses or anxious. He reported no difficulties with concentration. Sleep disturbance was described and an inability to initiate sleep. There was no looseness of thought associations. Following mental status examination, it was opined that his difficulties had more to do with a long-standing personality disorder than with anxiety or depression. The veteran did not have a diagnosis of generalized anxiety disorder , but rather something dealing with impulse control and his basic personality problem. Normal reactions of discouragement, anxiety, depression, and self-concern in the presence of physical disability, dissatisfaction with work environment, difficulties in securing employment, etc., must not be accepted by the rating board as indicative of psychoneurosis. Moreover, mere failure of social or industrial adjustment or the presence of numerous complaints should not, in the absence of definite symptomatology typical of a psychoneurotic or psychological factor affecting physical condition, become the acceptable basis of a diagnosis in this field. It is the responsibility of rating boards to accept or reject diagnoses shown on reports of examination. If a diagnosis is not supported by the findings shown on the examination report, it is incumbent upon the board to return the report for clarification. 38 C.F.R. § 4.126. Social integration is one of the best evidences of mental health and reflects the ability to establish (together with the desire to establish) healthy and effective interpersonal relationships. Poor contact with other human beings may be an index of emotional illness. However, in evaluating impairment resulting from the ratable psychiatric disorders, social inadaptability is to be evaluated only as it affects industrial adaptability. 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. 38 C.F.R. § 4.129 In evaluating psychiatric disability, the severity of disability is based upon actual symptomatology, as it affects social and industrial adaptability. Two of the most important determinants of disability are time lost from gainful work and decrease in work efficiency. The rating board must not underevaluate the emotionally sick veteran with a good work record, nor must it overevaluate his or her condition on the basis of a poor work record not supported by the psychiatric disability picture. It is for this reason that great emphasis is placed upon the full report of the examiner, descriptive of actual symptomatology. The record of the history and complaints is only preliminary to the examination. The objective findings and the examiner's analysis of the symptomatology are the essentials. 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 by the rating agency will be. In evaluating disability from psychotic disorders it is necessary to consider, in addition to present symptomatology or its absence, the frequency, severity, and duration of previous psychotic periods, and the veteran's capacity for adjustment during periods of remission. Repeated psychotic periods, without long remissions, may be expected to have a sustained effect upon employability until elapsed time in good remission and with good capacity for adjustment establishes the contrary. Ratings are to be assigned which represent the impairment of social and industrial adaptability based on all of the evidence of record. 38 C.F.R. § 4.130 In summary, following the initial diagnosis of an anxiety disorder, the veteran has not required any ongoing treatment for his service-connected psychiatric disability, and in fact subsequent evaluations have focused on the veteran's situational problems and personality disorder, variously described. The private evaluations in 1991 attributed the veteran's mental problems to industrial factors and family problems. 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. Noteworthy are the Axis I diagnoses at the time, ranging from an adjustment disorder to substance abuse. An examiner in July 1991 even discounted the service-connected mental health disability as having any significant impact on his condition at the time. The VA examiner in September 1992 did not find a chronic anxiety disorder for the veteran, and attributed the veteran's symptoms to his personality disorder. The VA evaluation in 1992 fits hand in glove with the private evaluations in 1991. Taking the above-described symptoms and applying the criteria of Diagnostic Code 9400 (reduction in initiative, flexibility, efficiency and reliability levels as to produce various levels industrial impairment), emotional tension has been detected; however, it does not appear to cause more than mild social and industrial impairment. The normal reactions low self-esteem, helplessness and hopelessness, suicidal thoughts (without intent), discouragement and apprehension, in the presence of physical disability (in this case a low back disorder) are not indicative of an increase in the underlying pathology. In addition to the absence of more than mild symptomatology, the veteran has not, in the past, experienced frequent or severe or long term periods of anxiety (38 C.F.R. § 4.130). The veteran does not have psychiatric manifestations associated with the service-connected generalized anxiety disorder which would support an evaluation in excess of 10 percent. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.132, Diagnostic Code 9400. In regard to the diagnosis of a personality disorder, the Board notes that the Veteran's representative has requested a remand for psychological testing in order to properly determine whether the veteran does in fact have a personality disorder. The Board points out that private psychological testing in 1991, and the private evaluations derived therefrom have attributed a personality disorder to the veteran. Extraschedular Considerations There is no indication in the record that the schedular evaluations are inadequate to evaluate the impairment of the appellant's earning capacity due to his disabilities, and they do not present such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards. He has not experienced extended periods of hospitalization. Thus, the provisions of 38 C.F.R. § 3.321 (1993) relating to extraschedular evaluations are not applicable here. ORDER An increased evaluation to 40 percent for post operative degenerative disc disease of the lumbar spine, L5-S1, is granted, subject to the law and regulations governing the criteria for an award of monetary benefits. An increased rating for generalized anxiety disorder is denied. RENÉE M. PELLETIER Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.